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46. In this background we can now examine as to the validity of putting the petitioners in separate cells day and night and as to whether such confinement is being made all the 24 hours.

47. The second respondent, on behalf of the other respondents also filed the first counter-affidavit dated 20-3-1980. In this counter-affidavit, certain Government orders and instructions are referred to and in pursuance thereof the jail authorities are stated to have taken some precautionary methods of maintaining discipline and security within the jail premises. No doubt in this counter-affidavit, the petitioners are taken as a nexalites' though it is true there is absolutely no organisation called 'nexalites' and the members of the Communist Party either belong to Communist Party of India, or Communist Party of Marxist or Communist Party of Marxists and Leninist. There cannot be any separate classification as 'nexalites.' Nevertheless, the jail authorities on the instructions from the Government thought it fit to keep these petitioners in separate cells in order to prevent them from indoctrinating the other prisoners. It has been averred in this counter-affidavit that these petitioners are allowed to go out of their cells during day time for strolling and doing exercise for one hour daily within their enclosures. Apart from this, they are also taken out of the cells at the time of ablution etc., lunch and evening meals. There is also an averment in this counter-affidavit that one of the petitioners herein attempted to break the jail and escape from the Central Jail, Tiruchirapalli. Finally, this counter-affidavit states that the petitioners-prisoners are treated as nexalites only in view of the serious nature of the offences in which they were involved and their adherence to the policy of violence, misbehaviour and indiscipline and annihilation of class enemies. Hence certain prisoners mentioned in the affidavit have been treated as nexalite prisoners in view of their activities. It has been further averred in this counter-affidavit that the special treatment is being given to the petitioners because of the dangerous attitude and in view of their activities as set out above. In the common additional counter-affidavit dated 15-4-1980, filed by the Deputy Secretary to the Government Home department Government of Tamil Nadu, it has been averred in paragraph 4 that these petitioners are separately confined mainly on the security point of view and administrative reasons so that they should not indoctrinate non-nexalite prisoners. It has been further stated that the very purpose of keeping them separately is that they should not be allowed to move with each other, as otherwise they will conspire or execute plans for jail outbreak, escape etc. If they are allowed to move with each other, the prison authorities cannot prevent them from escaping or planning etc., whatever may be the strength of warder guard. In the further counter-affidavit filed on 8-8-1980 the second respondent, on behalf of the other respondents also, has stated that the petitioners are kept in separate cells in order to prevent them from indoctrinating the other prisoners. In this counter-affidavit, it has been further averred that convict No. 5150 Vythian alias Kaliaperumal, now confined in Central Prison, Vellore, attempted to escape from the Central Prison, Tiruchirapalli, on the night of 20/21-4-1979, along with four other naxalites. Hence a case was registered against him and he was sent to Court in several occasions in connection with the case. It has been specifically denied in this counter-affidavit that prisoners cannot see anybody from the cells in which they have been put in. This counter-affidavit again reiterates that in view of the petitioners' adherence to the policy of violence, misbehaviour and indiscipline and annihilation of class enemies the incoming and outgoing letters of the naxalites prisoners are censored by the Q branch police.

48. In the common reply affidavit filed on behalf of all the petitioners, the petitioners challenged the respondents to substantiate the allegations of violence, misbehaviour and indiscipline and annihilation of class enemies and stated that that it is nothing but character assassination. In paragraph 13 of the common reply affidavit, the petitioners have stated as follows -

"As for annihilation of class enemies, let the respondents state which petitioner annihilated which class enemy after coming to jail ? If it is contended that the petitioners can be treated as naxalites for their alleged involvement and conviction of murder, which is a case of annihilation of class enemy ? The following question arises - Can those landlords and their henchmen who are convicted of murdering farm workers i.e., annihilating their class enemies be treated as naxalites i.e. kept in solitary confinement and subjected to supervision of interviews and censorship of letters by the Q branch ? Moreover, if annihilation of class enemies is to be proved, through conviction of the petitioners for murder, it is pointed out that petitioners in W.Ps. 771 and 773 of 1980 have not been convicted of murder and therefore they cannot be charged with annihilation of class enemies. But they are also treated as naxalites. Annihilation of class enemies is not the sole preserve of the naxalites. In the Tiruchi Central jail there are quite a few convicts belonging to the Communist party of India and the Communist party of India (Marxist) who have been convicted of murdering landlords or their henchmen. But these petitioners are not treated as naxalites."

49. Reading all these averments in the affidavits, counter-affidavits and reply affidavit filed by the respective parties, it is clear that even apart from the Government Orders and instructions, the jail authorities are themselves aware that one of the petitioners herein attempted to escape from the Central Jail, Tiruchirapalli, on the night of 20/21-4-1979 along with four other naxalites and that the jail authorities taking into consideration the serious nature of the offence in which these petitioners are involved and their adherence to the policy of violence, misbehaviour and indiscipline and annihilation of class enemies, put the petitioners in separate cells just for maintenance of discipline and by way of security measures inside the jail.

50. The nomenclature such as "naxalites' given to these petitioners will not in any way affect the subjective satisfaction formed by the jail authorities for putting them in separate cells. The learned Advocate General who has supported the action of the jail authorities independent of the Government Orders and instructions referred to in the first counter-affidavit, stated that these powers flow from the Prison Act and Jail Manual, there is no need to rely upon the Govt. Orders and circulars. As regards the averments which we have referred to above in the counter-affidavits, the learned Advocate General pointed out that it is only in the interests of the jail administration and also to maintain tight security and discipline inside the prisons, the Superintendent of these prisons satisfied themselves subjectively for putting these petitioners in separate cells.