The province of prison justice, the conceptualization of freedom behind bars and the role of judicial power as constitutional sentinel in a prison setting, are of the gravest moment in a world of escalating torture by the minions of State, and in India, where this virgin area of jurisprudence is becoming painfully relevant.

In such basic situations, pragmatic sensitivity, belighted by the Preamble to the Constitution and balancing the vulnerability of ‘caged’ human to State torment and the prospect of escape or internal disorder, should be the course for the court to navigate. Freedom is what Freedom does-to the last and the least- Antyodaya.

It in an unhappy reflection, charged with pessimism and realism, that Governments have come and Governments have gone but the jails largely manage to preserve the macabre heritage and ignore the mahatma’s message.

Disturbing Commission Reports and public proceedings put to shame prison justice and shake people’s faith in the firm fighting functionalism of the judicial process.

The case of Batra and Sobraj

In the landmark case of Sunil Batra (I), the court considered two petitions of the two undertrial prisoners, one was confined in solitary confinement and other was in bar fetters, but instead of submitting to what they describe as shocking jail injustice, they challenged, by separate writ petitions, such traumatic treatment as illegal.

Speaking for the bench, Justice Krishna Iyer said in the case that,

“The soul of these twin litigations is the question, in spiritual terms, whether the prison system has a conscience in constitutional terms, whether prisoner, ipso facto, forfeits person- hood to become a rightless slave of the State and, in cultural terms, whether man-management of prison society can operate its arts by ‘zoological’ strategies.”

Prisoners behind the bars: Limitation and Liberties

Prisoners have enforceable liberties devalued may be but not demonetized; and under our basic scheme, Prison power must bow before Judge power if fundamental freedoms are in jeopardy.[1]

The concept of liberties behind bars from America and Hand off doctrine

For a considerable time, the hand off doctrine was prevalent in America. The doctrine was that courts shall not interfere to the management of prison authorities.

The hands-off doctrine is based on the fallacious foundation stated in 1871 in Ruffin v. Commonwealth[2]:

“He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except these which the law in its humanity accords to him. He is for the time being, the slave of the State.”

During the century that followed, the American courts have whittled away at the doctrine and firstly declared in Jordan[3] that when the responsible prison authorities have abandoned elemental concepts of decency by permitting conditions to prevail of a shocking and debased nature, the courts must intervene promptly to restore the primal rules of a civilized community ill accord with the mandate of the Constitution of the United States.

In Coffin V. Richard the court was persuaded to intervene when, while lawfully in custody a prisoner is deprived of some right the B, loss of which makes his imprisonment more burdensome than the law permits:

“When a man, possesses a substantial right, the Courts will be diligent in finding a way to protect it. The fact that a person is legally in prison does not prevent the use of habeas corpus to protect his other inherent rights.

By l 975, the United States Supreme Court sustained the indubitable proposition that constitutional rights did not desert convicts but dwindled in scope.

A few sharp passages from Eve Pall[4] opinions and some telling observations from Charles Wolff[5] nail the argument the prisoners the nonpersons.

Mr. Justice Steward, who delivered the opinion of the Court in Eve Pell observed-

“Courts cannot, of course, abdicate their constitutional responsibility to delineate and protect fundamental liberties. But when the issue involves a regulation limiting one of several means of communication by an inmate, the institutional objectives furthered by that regulation and the measure of judicial deference owed to corrections officials in their attempt to serve these interests are relevant in gauging the validity of the regulation.”

Mr. Justice Douglas in his dissenting view, stated ‘prisoners are still ‘persons’ entitled to all constitutional rights unless their liberty has been constitutional by curtailed by procedures that satisfy all the requirements of due process.

In the later case of Charles Wolff, the court made emphatic statements driving home the same point. For instance, Mr. Justice White, who spoke for the court, observed:

“Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen retraction in by the considerations underlying our penal system. But though his rights may be diminished by environment, prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.

There is no iron Curtain drawn between the Constitutions and the prisons of this country. In sum there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.”

Mr. Justice Marshall expressed himself explicitly-

“I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison Gate, and I fully support the court’s holding that the interest of inmates is freedom from imposition of serious discipline is a liberty entitled to due process protection.”

Mr. Justice Douglas, again a dissenter, asserted:

“Every prisoner’s liberty i.e., of course, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a nonperson whose rights are subject to the within of the prison administration, and therefore, the imposition of any serious punishment within the prison system requires procedural safeguards of course, a bearing need not be held before a prisoner is subjected to some minor deprivation, such as an evening’s loss of television privileges. Placement in solitary confinement, however, is not in that category”.

Concept of liberty behind bars in India

In Sunil Batra (I) (supra), Justice Krishna Iyer emphasised the safeguard of prisoners behind the bars when he said,

“In our constitutional order it is axiomatic that the prison laws do not swallow up the fundamental rights of the legally unfree, and, as sentinels on the qui vive, courts will guard Freedom behind bars, tampered, of course, by environmental realism but intolerant of torture by executive echelons.

The policy of the law and the paramountcy of the constitution are beyond purchase by authoritarians glibly invoking ‘dangerousness’ of inmates and peace in prisons. If judicial realism is not to be jettisoned, judicial activism must censor the argument of unaccountable prison autonomy.”

‘Dangerousness’ as a cover for police

The tested argument against brutality of prisoner is that the dangerousness of prisoners presents a threat to the prison official and to supress such danger, some force is needed.

‘Dangerousness’ as a cover for police and prison atrocities is not unusual, a judicial enquiry[6] by Mr. Justice Ismail in a Tamil Nadu prison indicates:

“The black hole of Calcutta is not a historical past but a present reality. The Report finds the detenus were deliberately lodged in the ninth block which was previously occupied by leprosy prisoners.

On the night of February 2, “there were brutal, merciless and savage beatings of the detenus in the ninth block”, earlier in the afternoon, the Chief Head Warder went to the block and noted down the names of the detenus and the cells in which they were locked up. The exercise was undertaken.

The Judge finds that “the beating of the detenus that took place on the night of February 2, 1976 was a premeditated, pre-planned and deliberate one and not undertaken on the spur of the moment either because of any provocation offered by the detenus to go into the cells as contended by the jail officials”

 Justice Iyer condemned such practice and said-

“We cannot, without check permit human freedom to be gouged by jail guards under guise of ‘encounters’ and ‘escape attempts” …. If wars are too important to be left to the generals, surely prisoners’ rights are too precious to be left to the jailors. We must add a caveat. Where prison torture is the credible charge and human person the potential casualty, the benefit of scepticism justly belongs to the individual’s physical-mental immunity, not to the – hyper-sensitivity about safe custody.”


[1] Sunil Batra Etc. vs Delhi Administration, 1978 AIR 1675, 1979 SCR (1) 392

[2] 62 Vs. (21 Gratt) 790, 796 (1871)

[3] 257 Fed. Suppl. 674 Jordan I…. Fitzharris (N. D. Cal. 1966)

[4] 417 US 817 41 Ed. 2d 495

[5] 41 L. Ed. 2d. 935. 10-526SCI/78

[6] Mentioned and quoted in Sunil Batra (II) Judgement