D. Bhuvan Mohan Patnaik & Ors. v. State of Andhra Pradesh & Ors.

Judgment

ORIGINAL JURISDICTION : Writ Petitions Nos. 295--:W7 of 1974. Under article 32 of the Constitution of India. R. K. Garg, for the petitioners. P. Ram Reddy and P .. Parmeshwararao, for the respoadents. The Judgment of the Court was delivered by CHANDRACHUD, J, This is a group of three writ petitions. under article 32 of the Constitution. D. Bhuvan Mohan Patnaik, the petitioner in Writ Petition No. 295 of 1974 is undergoing the sentences of 4t years and st years awarded to him in two sessions cases. He is also an under trial · prisoner in · what is known as the Parvatipuram · Naxalite Conspirac}r ·case. Nagabhushan Patnaik, who is the petitioner in Writ Petition No. · 296 · of 1974 was sentenced to death by the learned II . Additional Sessions Judge,. Visakhapatnam, but that sentence was commuted. by· the Statt Government to life imprisement. P. Hussainar, the petitioner in Writ Petition No. 297 ct 1974, is undergoing. the sentence of imprisonment for life imposed by the same learned Judge, He is also an under-trial prisoner in the ParV!ltipuram Case.

1,Tbe three petitioners are undergoing the senteni::es in the Central' Jail at Visakhapatnam. · · We are not c<>ncemed with any evaluation of the political belie!s of the petitioners who claim tCI be Naxiµities nor with the legality ot the sentences imposed on them nor indeed with the charges on which two of them ·are being tried. The only reliefs which they ask for are : ( 1) that the armed police guards posted around the jail should be remov.ed and (2) that the livewire electrical mechanism fixed ca top of the jail wall should be dismantled. . Mr. Garg who appears on behalf of the petitioners contends that even the discipline of the prison must have the authcrity of law and that there sboul4 be a sort of. "Iron curtain" betwun the priSCGetS aDd 26 SUl'REME COURT REPORTS the police so that co11victs and Wider-trial prisoners may be truly free from the influence and tyranny of the police. Sr.ction 3 (1) o£the. Prisons Act;

9 of 1894, defines 'prison' to mean any jail or place used permanently or temporarily for the detention of prisoners, including "all lands and buildings appurtenant thereto". The Superintendent of the Central Jail, Visakhapatnam, who is the . 3rd respondent tci the petitions, has filed an affidavit stating that the usual wawh and ward staff of the jail having been found to be inadequate, the services of the Andhra Pradesh Special Police Force had to be requisitioned to guard the jail from outside. The affidavit shows that these policemen live in huts built on a part of the vacant jail land and that the cifficers of the. Force are accommodated in the "jail Oub" immediately outside the jail. Their office is situated in a bloclc outside the jail, which was meant to be used as a waiting room for visitors wishing to meet the prisoners. The argument of Mr. Garg is that since prison includes lands appurtenant thereto, the members and officers of the Andhra Pradesh Special Pcilice Force must, on the affidavit of the third respondent, be held to occupy a part of the prison and that must be preventr.d as it is calculated to cause substantial interferenee with the exercise by the prisoners of their fundamental rights.

Convict~ are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise pc15sess.. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails to by its own force the deprivation of fundamental freedClffiS like the right to move freely throughout the territory of India or the right to "practise"' a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and ·dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitleti' to the precious right guaranteed by Article 21 of the Constitution th,at he shall not be deprived of his life or personal liberty except according to procedure established by law. In State of M.aharashtra v. Prabhakar Pandurang Sangzgiri & Anr.(1> a person who was detained by the Government of Maharashtra under rule 30( 1)

(b) of the Defence of India Rules, 1962 wrote, while in jail, a book of scientific intere8t and sought permission from the State Government to send the manscript out of the jail for publication. The request having been rejected the detenu filed a writ peti~ tion in the Bombay High Court which allowed the petitic111. In an appeal filed in this Court by the State Government it was held that though the conditions of detention under rule 30( 4) of the Defence of India Rules, 1962 were the same as under the- Bombay Conditions of Detention Order, 1951 which laid dCIWll conditions regulating the restrictions on the liberty of a detenu, it could not be said that the order of 1951 conferred only certain privileges on the detenu. The Court observed : "If this argument were to be accepted, it would mean that (1) [1966] 1 S. C. R. 702. D. B. PATNAIK v. A. P. STATE (Chandrachud, J.) 27 the detenu could be starved tc1 death, if there was no condition providing for giving food to the detenu".

The refusal of the State Government to release the manuscript of publication was held to constitute an infringement of the personal liberty of the detenu in derogation of the law under which he was detained. · Though, therefore, under our Constitution, the right of personal liberty and some of the other fundamental freedoms are not to be totally denied to a convict during the period of incarceration, we are unable to appreciate that the petitioners have been deprived of any of their fundamental rights by the posting of police guards immediately outside · the jail. The affidavit of. the third respondent shows that as many as 146 N axalitc prisoners were lodged in the Visakhapatnam jail as a result of which the . usual watch and ward arrangement proved inadequate. Eleven Naxalite prisoners including two out of the three petitioners before us, namely, Nagabhushan Patnaik and P. Hussainar, escaped from the prison on the night of October 8, 1969. lt1was decided thereafter to take adequate measures for preventing the escape of prisoners from the jail.

We do not think that a convict has any right any more than anyone else has, to dictate whether guards ought to be posted to prevent the escape of prisoners. Prisoners will always vote against such measures in order to steal their freedom. The vacant land appurtenant to the jail is by the definition of 'prison' in section 3 ( 1) of the Prisons Act a part of· the prison itself. It cannot, therefore, be gainsaid that members of the Andhra Pradesh Special Police Force must be deemed to be in occupation of a part of the prison premises. The infiltration of policemen into prisons must generally be deprecated for, under-trial prisoners, like two of the peti7 tioners before us, who are remanded to judicial custody ought to be immune from the coercive influence of the police. The Security of one's person against an arbitrary encroachment by the police is basic to a free society and prisoners cannot be thrown at the mercy of policemen as if it were a part of an unwritten Law of Crimes.

Such instrusions are against "the very essence of a scheme df ordered liberty". But the argument of Mr. Garg proceeds from purely hypothetical considerations. The policemen who live nn the vacant iail land are not shown to have any access to the jail which is enclosed by high walls. Their presence therefore, in the immediate vicinity of the jail can cause no interference with the personal liberty or the lawful preoccupations of the petitioners. Counsel for the petitioners complained bitterly against the segregation of Naxalite prisoners in a "quarantine" and the inhuman treat- . ment meted out to them as if they were inmates of a "fascist con- . centration camp." We would like to emphasise once again, and no emphasis in this context can be' too great, that though the Government possesses the constitutional right to initiate laws, it cannot, by taking law into its own hands, resort to oppressive measures to curb the poli· tical beliefs of its opponents.

No person, not even a prisoner, can be deprived of his 'life' or 'personal liberty' except according to procedure established by law. The American Constitution by the 5th and 14th 28 SlJPRIJME COURT REPORTS Amendments provides, inter alla, that no .person shall be deprived of "life, liberty, or property, without the due prc~s of law''. Explaining the scope of this provision, .Field J. observ.ed in Munn v. lllinois(J) and that the term ''life" means something more than mere animal existence and the inhibit.ition against its deprivation extends to all those limits and faculties by which life is enjoyed. This statement of the Jaw was approved by a Constitution Bench of this Court in Kharak Singh v. The State of U. P. and Ors.(2)

But, on a perusal of the affidavit of the 3rd respondent, we are not satisfied that the allegations made by the petitioners are true, though we do not think that the rosy picture drawn by the 3rd Respondent of life in the Visakhapatnam Central Jail can too readily be accepted. "Airy rooms with cross-ventilation", a "break-fast and two regular meals a day. . . . . . . . the total claoric value of which is ;ibout · 4000 calories per day as against 2500 calories which is the average caloric value of food consumed by an Indian", "250 grammes df chicken, a litre of milk and 2 eggs per day" for one of the petitioners )Vho has a duodi:nal ulcer"; a lot of reading material";. "facilities for playing games like Volleyball, Kabbadi, Badminton, Ring, tennis etc.", the supply of "muskal instruments" and "a radio net-work"-these and many other amenities are, according to the 3rd Respondent, made available to the prisoners. We hope and trust that the claim is founded on true facts.

But attention of the jail authorities needs to be drawn to what .the petitioners have described as the "marathon hunger-strike" by a large number of Naxalite prisoners for improvement in the subhuman conditions of their existence. We are also not prepared to dismiss as wh;>lly untrue the reply of the petitioners to the 3rd Respondent's counter-affidavit, that there is difficulty even in getting a packet of powder for a rickety carrom-board, that the radio net work consists of a f,ilent mu<1eum·-pkc:e, that the supply of "musical instruments" consists of an abandoned non-speaking harmonium and a set of dilapidated drtims and 1hat a !I the music that is there is provided by an army of mobile mos1uitoes. These, however, am matters of reform and though they ought to receive priority in our Constitutional scheme, there denial may not necessarily constitute an encroachment on the right guaranteed by A:rtide 21 of the Constitution.

We cannot do better than say that the directive principle contained in Article 42 of . the Constitution that "The. State shall make provision for securing just and humane conditions of work" may benevolently be extended ·to living conditions in jails. There arc subtle fornts of punishment to which cc111victs and under-trial prisoners are sometimes subjected but it must be realized that these barba.rous relics of a bygone era offend against the letter and spirit of our Constitution. For want of s~tisfactory proof, we be~itate to accept the contemicm of the petitioners that the treatmenr meted out to them is in violation of their right to life aud pcrsonai liberty . . As regards the live-wire mechanism fixed atop the jail walls. Mr. ~arg argues that the act is unconstitutional because a priscmer attemptmg to escape is, by the use of the device, virtually subjected to a death ----877) 94"iJ]:--i1J. (2) r 1964] 1 S.C.R. 3 332, 347. D. B. PATNAIK v. A. P. STATE (Chandrachud, i.)

29 A · penalty. The policy of law as reflected in section 224 of the Penal Oxle, says the oounsel, is to visit a prisoner attempting to. escape or successfully escaping, to a· maximuID. sentence of two yean and a fine. The live wire gadget lacks the authority of law and since it is a flag~ rant violation of the personal liberty guaranteed by Article 21 of the Ci>nstitution, it must be declared unconstitutional. Counsel fears that 8 if the oourt pUts its seal of approval en the use of the inhuman mecha· nism, prisons shall have been converted into cremation grounds. This argument has a strong emotional appeal .but not to reason. And the appeal to reason is what the cciurt is primarily concerned with . iri decidirig upori the oonstitutionality of any measure. But before examining the petitioners' contention, it is necessary to make a clarification.

Learned ci>unsel. for the respondents harped on the reascinableness of. the step taken by the jail authorities in insta1ling the high-voltage live-wire on the jail•walls. He oontended that the mechanism was installed solely for the purpose of preventing the es, cape of prisoners and was therefore a reasonable restriction on the fundamental rights· of the prisoners. This, in our opinion, is a wrong . appreach to the issue under consideration. If the petitioners succeed in establishing that the particular measure taken by the jail authorities victlates any of the fundamental rights · available to them under. the Constitution, the .iustification · of the measure must be sought in some "law", within the meaning of Article 13(3) (a) of the Constitution. The installation of the high vdta:ge wires lacks a statutory basis and seems to have been devised on the strength of departmental instructions. Silch instructions are neithec "law" within the meaning of Article 13(3)

(a) nor are they "proce- · dure. established by law" within the meaning of Article 21 of the Ccnstitution. Therefore, if the petitioners are right in . their · contention . that the mechanism constitutes. an infringement df any of the fundamental rights available to them, they would be entitled to the relief sought by them that the mechanism to be dismantled. The State has not justified the installaticn of the mechanism on the basis of a law or procedure established by faw". The live-wire is installed on the top of a wall, 14 feet from the ground level, the height of the :wall itself being 13 feet. It rests on enamel non-<:.onductors fixed to angle irous which are embedded in · · the wall. The wire has no direct contact with the wall and there iS no possibility of the electrical current leaking .through the wall. The prison-walls are themselves situated at a distance of about 20 feet from the cells where the petitioners are lodged. An electrician inspects the . system regularly.

F'mally, the mechanism is not a secret trap as all prisoners are warned of its existence and a non-electrical barbed-wire fences the jail walls. There is thus n~ possibility that the petitioners· will come into contact with the electricaldevice in.the normal pursuit of their daily chores. There is $o no possibility that any other person .in the discharge ct .,,. . 1 30 his lawful functions or pursuits will come into contact with the same. Whatever be the nature and extent of thie petitioners' fundamental · right to life and personal liberty, they have no fundamental freedom to escape from lawful custody. Therefore, they cannot complain of the installation of the live-wire mechanism with which they are likely to come into contact cinly if they attempt to escape from the prison.

Carrying the petitioners' contention to it~ logical conclusion, they would .also be entitled to demand that the height of the compound wall be reduced from 13 feet to say 4 or 5 feet as a fall from a height of 13 feet is likely to endanger their lives. In fact the petitioners could ask that all measures be taken to render ·safe their attempt to escape from the prison. In holding that the live-wire mechanism does ,not interfere with any -0f the fundamental freedoms of the petitioners, we are not influenced by the consideraticin so prominently mentioned by the 3rd Respondent in his further affidavit that a simil.ar system is in vogue in Hyderabad, Warangal and Nellore. If the system is unconstitutional, its widespread use will not make it constitutional.

Section 46, Criminal Procedure Code, 1898, furnishes no analogy to the prese.nt case because it Jays down how arrests are to be made and the extent c~ force which may be used if the person to be arrested foJCibly resists the endeavour to arrest him. Sub-section (2) of section 46 authorises the person making the arrest to "use all means necessary to effect the arrest" while sub-section (3) provides that "Nothing in this section gives a right to ~ause the death of a perscn who is not accused. of an offence punishable with death or with imprisonment for life." Chapter V of the Code of 1898 in which section 46 appears is headed : "of Arrest, Esc:ape and Retaking". Secticf!l ,46 deals with the mode in whi~h arrests, for the first time, may be ·effected. Section 66 deals with the power, on escape, to pursue and re-take the prisoner.

It provides that "if a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India." Apart from this, the installation ct the high-voltage wire does not offend against the command of section 46( 3) even on the assumption that the sub-section covers the re-arrest of a prisoner who has escaped from lawful custcdy. The installation of the system does not by itself cause the death of the prisonier. It is a preventive measure intended to act a~ a deterrent and can cause death only if a prisoner oourts death by scaling the wall while attempting to escape · from lawful custody. In that sense, even a high wall without the electrical device ·would be open to the exception that a priscroer falling fr~m a_ height, while ~ttemptin~ t? escape by scaling the wall, may meet ·with his death. Section 46(3)

1s, therefore. not contravened and the grievance that t!te mei:hanism involves a total negation of the safe- . guards afforcled by Criminal Jaw is without any s11bstance. The petitioners are, therefore, not entitled to either of the two reliefs sought by them and the rule must be discharged but that i~. on the I D, B. PATNAIK v. A. P; STATE (Chandrachud, !.) 31 ground ~at the acts complained of are not shown to cause any inter· ference with the fundamental rights available to them and not on the ground that prisoners possess no fundamental rights. The rights claimed by the petitioners as fundamental may ncit readily fit in the classical mould of fundamental freedoms, but "basic rights cjo not become petrified as of any one time, even though as a matter of human experience some may not too rhetorically be called eternal verities. It is ct the very nature of a free society to advance in its standards of what is deemed reasonable and right. ...

To rely on a tidy formula for the easy determination of what is a fundamental right for purposes of legal enforcement may satisfy a longing for cel'tainty but ignores the movemenis of a free society." ( 1) P.H.P. Petitions dismissed. (I) P~r Frankfurter J. in Wolf v. Colorado, (1949) 338 U. S; 25, 27.