Bombay High Court
Inacio Manuel Miranda And Ors. vs State on 27 September, 1988
Equivalent citations: 1988(4)BOMCR106, 1989MHLJ77
JUDGMENT C.S. Dharmadhikari, J.
1. These Writ Petitions came to be registered on the basis of the letters received from the prisoners. In the letters, several complaints were made about the conditions in the prison. After being prima facie satisfied, this Court directed the District and Sessions Judge, North Goa, Panaji, to inquire into the complaints made by the prisoners, by visiting the Jail and to submit his report. Accordingly, after visiting the Jail and recording the statements of inmates and Jail Officers, the learned District and Sessions Judge submitted his report.
2. Supreme Court in the case of Sheela Barse v. State of Maharashtra, 1988(1) Bom.C.R. 58 has reiterated the view expressed in the earlier decisions, that term 'Life' in Article 21, has an extended meaning. Therefore, citizens who are detained in Prisons either as undertrials or as convicts are also entitled to the benefits guaranteed by the Constitution, subject to reasonable restrictions. This Court in Madhukar Bhagwan Jambhale v. The State of Maharashtra and others, 1987 Mh.L.J. 68 has summarised the legal position, in para 8 of the said judgment, which reads as under :---
''It is thus well settled that convicts do not wholly shed their fundamental rights, through their liberty is in the very nature of things circumscribed by the very fact of their conviction. The consequent responsibilities of prison administrators have to be borne in mind. These responsibilities broadly stated are : (i) maintenance of internal orders and discipline, (ii) securing the institutions against unauthorised access or escape and (iii) rehabilitation of prisoner. The maintenance of penal institutions is an essential part of the Government's task in preserving societal order though enforcement of criminal law and the governmental interests are the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorised entry and above all rehabilitation of prisoners as indicated above. As a matter of fact the modern concept of criminology calls for greater attention to the reformation of a prisoner. Sunil Batra v. Delhi Administration, and Sunil Batra v. Delhi Administration, amongst others are land mark decisions emphasising the reformative aspect of the prison administration.'' Therefore, the grievances made in these writ petitions will have to be tested on the touchstone of these well established principles.
3. After the matter was heard for some time, ultimately, the complaints crystalized into the following grievances :---
That one shaving blade is used to shave several prisoners. The District Judge in his report stated that after shaving, the prisoners' faces are disinfected with alum stones. It seems to be an admitted position that the same shaving blade is used on account of security reasons. The learned District Judge, however, found that there was no evidence to show that sufficient care is taken to prevent any infection due to the use of common blade. After hearing the learned Advocate General, we are satisfied that the Jail Authorities should be directed to take necessary precaution to use some sort of disinfectant either alcohol or dettol or other effective disinfectant, to avoid any infection and also to prevent transmission of disease from one prisoner to another. This direction will equally apply to the grievance made about using of common needle for extraction of blood.
4. A grievance was also made that Rule 17 and Rule 19 of the Goa, Daman and Diu Prisoners (Facilities to Prisoners) Rules, 1968, are not being followed and even otherwise, the same are discriminatory. From the report of the District Judge, it appears that the Jailor has deposed before him that the Jail Authorities supply papers to the prisoners free of cost from the Office of the Prison for the purpose of preferring appeals, applications, etc. and in case they are required for private use, it is sold at .08 paise a sheet, which is the cost price. Rule 19 states that writing material should be supplied by the Government without any cost. However, Rule 17 contemplates that Class I Prisoners can write four letters, two at the Government cost and two at the prisoner's cost and a Class II prisoner can write two letters per calendar month, one at Government cost and one at his own cost. It appears that this classification is made under the Goa, Daman and Diu Prisoners (Admission, Classification and Separation of Prisoners) Rules, 1968. However, we are informed by the learned Advocate General that, in practice, all prisoners are treated as Class II prisoners. This Court in Madhukar Bhagwan Jambhale v. State of Maharashtra & other (Supra) had an occasion to deal with a somewhat similar question. In paragraphs 4 and 5 of the said judgement, a note was taken by this Court that a similar provision in Maharashtra about the classification of prisoners, come to be discontinued by Government Resolution dated 1st of January, 1971. In the said decision, this Court was concerned with the facility given to the prisoners for writing welfare letters. However, in our view, the classification in the present Rules for the purpose of writing letters could safely be treated as discriminatory, and therefore, unreasonable. All convicts should be treated equally in the matter of writing letters and should be allowed to write at least four letters per month, two with the paper supplied by the Government at Government cost, and two, at the cost of the prisoner, on the paper supplied by the Government at .08 paise per sheet which is stated to be the cost price.
5. The next grievance made in the petition is regarding the non-availability of the Jail Rules. Rule 28 of the Facilities Rules provides that there should be library in the prison. From the Report of the District Judge, it appears that the Government has directed the Jailor vide letter dated 9th of February, 1988, bearing No. 9-12/84-HD (G), written by the Under Secretary (Home) that the Rules should not be made available to the prisoners. To say the least, we are not only surprised by this direction, but in our view, the said direction is wholly arbitrary and unreasonable. It would be against the principles of natural justice to permit the prisoners to be punished or penalised by laws of which they had no knowledge and of which they could not even with exercise of due and reasonable diligence, acquire any knowledge. These Rules are framed under section 59 of the Prisoners Act and are published in the Gazette. However, how many persons read the Gazette, and even if they read, how many of them retain a copy of it ? It is not enough that the law is enacted, Rules are framed and Orders are issued, but they should be also available to the person concerned, if required. It appears to be an admitted position that Jail Manual is not published so far, and only two copies of compilation are available with the Goa Government, one with the Superintendent of Jail, Aguada and the other, with the Inspector General of Prisons. It will be most unfair to punish a prisoner for breach of a rule or a condition of which he has no knowledge and no facilities are also available for acquiring such knowledge. Therefore, the minimum which is expected of the Government is to make copies of compilation and to make them available in the libraries of the jails. Therefore, we direct the State Government to prepare copies of the compilation and make them available in the libraries of the Jail and sub-jails.
6. In Writ Petition No. 16 of 1988, a grievance was made by the nine inmates of the Judicial Lock-up at Panaji. The District and Sessions Judge was directed by this Court to inquire into the matter and make a report. Similar grievance was made in Writ Petition No. 38 of 1987 also. In his report, the District Judge observed that "there is absolute lack of proper ventilation and the Judicial Lock-up is worse than a zoo where at least good ventilation is provided to the animals". It is observed in the report by the District Judge that the prisoners confined there have to face inconvenience and the Government should make necessary arrangement so that the prisoners get fresh air and light. The Government should also make arrangements to provide W.C. Therefore, the Government is directed to take suitable steps in this behalf to improve the condition in Locks-ups at Panaji.
7. Then, a grievance is made in the petition that the wage system as incorporated in Rules 44, 45 and 46 of the Goa, Daman and Diu (Facilities to Prisoners) Rules 1968 and the wages paid are wholly unreasonable. It is also contended by Shri Rebello, the learned Counsel appointed as Amicus Curiae, that the wages paid are violative of citizens fundamental rights guaranteed under Articles 21 and 23 of the Constitution of India. In support of this contention he has placed strong reliance upon the decision of the Kerala High Court in, (In the matter of Prison Reforms Enhancement of Wages of Prisoners), A.I.R. 1953 Ker. 261 and a decision of the Andhra Pradesh High Court in Poola Bhaskara Vijaykumar v. State of Andhra Pradesh & another, and the cases referred to therein. In our view, it is not necessary to decide the question as to whether the Rule relating to the payment of wages is violative of Article 21 or Article 23, since in any case, it could safely be held that the wages paid have no basis. In spite of our repeated queries, it was not possible for the respondents to indicate as to on what basis these wages are fixed. According to Shri Rebello, the basis could be only the minimum wages payable to the workers in the similar employment because as held by the Supreme Court, payment of anything less than the minimum wage will amount to 'begar' within the contemplation of Article 23 of the Constitution. We do not propose to examine this contention in details. However, since no basis is being disclosed for the fixation of the wages, a scrutiny of the whole question is absolutely necessary. Hence, we direct the State Government to appoint a committee of experts to go into this question and re-fix the wages, in accordance with law.
8. A grievance is also made before us about the composition of the Board of Visitors. In this context, we cannot do better than to draw the attention of the Government towards the observations of the Supreme Court in Sanjay Suri v. Delhi Administration, 1988 (Supp.) S.C.C. 169 wherein it is observed by the Supreme Court:
"The Visitor's Board should consist of cross-sections of society : people with good background social activities, people connected with the news media, lady social workers, jurists, retired public officers from the judiciary as also the executive. The Sessions Judge should be given an acknowledged position as a visitor and his visits should not be routine ones. Full care should be taken by him to have a real picture of the defects in the administration qua the resident prisoners and under trials".
In view of these observations of the Supreme Court, the State Government is obliged to reconstitute the Visitor's Board as per the guidelines laid down in that behalf and we direct accordingly.
9. During the course of arguments, a grievance was also made that there is no effective procedure for redressing grievance of the prisoners and whatsoever meagre procedure is in existence does not conform to the directions given by the Supreme Court in Sunil Batra v. Delhi Administration, .
10. In Sunil Batra's case certain directions were given by the Supreme Court with a view to bring about reforms in the jail administration. These directions are to be found in paragraph 79 of the Report and we will like to draw the attention of the Goa Government towards the said directions as well as towards the Division Bench decision of this Court in Madhukar Bhagwan Jambhale v. State of Maharashtra and others (Supra) and ultimate directions issued by the Division Bench in that behalf, which read as under:
"1. Grievance Deposit Box In addition to complaint boxes which are presently kept in different cells in the prison, a sealed Grievance Deposit Box shall be kept at a conspicious place inside the prison under lock and key. The key of the said Box shall remain exclusively with the District Judge. Access to the Complaint Box shall be accorded to the prisoners. The said Box shall be opened by the Sessions Judge within whose jurisdiction the prison falls, at regular intervals. In case of Jails which are rendered impracticable for the Sessions Judge to visit, Additional District Judge or a Senior most Assistant Judge, nominated by the Sessions Judge should perform the aforesaid task. A detailed record of the complaints, grievances, shall be maintained by the concerned Sessions judge who will also investigate into the complaints, and if found necessary and expedient shall take appropriate action. The record of the complaints shall also contain the particulars of the action taken.
2. Complaint Register.
The District and Sessions Judge shall maintain a Complaint Register in prison office in such a manner as may be directed by him in respect of the complaint found in the Grievance Deposit Box. He shall also record the appropriate action taken in respect of the said complaints.
3. Visits by District and Sessions Judge/District Magistrate.
The District Magistrate and the Sessions judge shall personally visit prison in their jurisdiction and offer effective opportunities for ventilating the legal grievances of the prisoners and shall make expeditious enquiries, and take suitable remedial action. They shall also ascertain the conditions prevailing in the prison, and ascertain whether the prisoners are provided with all the necessary facilities as set out in the Maharashtra (Facilities to Prisoners) Rules, 1962. In the appropriate case, report shall be made to the High Court by a letter to initiate if necessary, habeas action.
4. Visit by Lawyers.
The Sessions Judge shall nominate lawyers to make separate visits to the prison within his jurisdiction. The lawyers so appointed in their visits shall be afforded by the prison administration facilities and opportunities to inspect the prison premises and the record relating to complaints from the prisoners and to interview and receive confidential communications from the inmates of the prison subject to disciplinary and security conditions. The lawyers so nominated shall carry out periodical visits and report to the concerned Court results which have relevance to legal grievances.'' We direct the Government of Goa to implement the directions incorporated in the judgment of this Court in Madhukar's cased.
11. In these petitions, several other grievances were made which are individual in nature. In our view, if the grievance procedure suggested by us is followed by the State Government, the prisoners will have a forum to make those grievances which can be effectively gone into as and when made.
12. In Writ Petition No. 23 of 1988, a grievance is made by the prisoner James Vincent Fernandes that the Goa Government has not framed any scheme for rehabilitation of the prisoners, though such a scheme is available in other States. In the affidavit filed in reply, it is stated by the respondents that the Government of India has circulated guidelines in the form of draft schemes for rehabilitation of prisoners after their release. Based on this, the Directorate of Social Welfare, Government of Goa, has prepared a draft scheme for grant of assistance to the released/incarcerated prisoners and their families and the same is under consideration of the Government and the Government's approval is awaited. In our view, if the draft scheme is already submitted to the Government by the Directorate of Social Welfare, which is already under consideration, the Goa Government can safely finalise the said scheme within a period of six months.
13. Hence, the rule is made absolute in all the three Writ Petitions, in terms of the aforesaid directions. The Government of Goa is directed to comply with these directions as expeditiously as possible, in any case, within a period of six months. The Inspector General of Prisons to report compliance to this Court by the end of six months.