RIGHTS OF JUVENILES
1. The Supreme Court on a petition that juvenile prisoners are
kept alongwith the adult prisoners in Tihar Jail, Delhi ordered
the District Judge, Delhi, to visit Tihar Jail and to determine
whether the juvenile prisoners are being housed in that part of
the jail which is said to have been reserved for them or whether
they are to be found in the other two parts of the jail also which
house adult prisoners.
[Sanjay Suri vs. Delhi Administration;1989-(SU2)-SCC -0511 –SC]
2. Penology - Punishment - Object of imprisonment is reformatory
and years spent in the jail should be with a view to providing
rehabilitation to the prisoner after the sentence is over.
Today the prison house is looked upon as a reformatory and the
years spent in the jail should be with a view to providing rehabilitation
to the prisoner after the sentence is over. The prison house,
in case the true purpose is to be achieved, has to provide the
proper atmosphere, leadership, environment, situations and circumstances
for the regeneration. Members of the staff of the jail from bottom
to top must be made cognizant of this responsibility and that
awareness must be reflected in their conduct.
Evidence Act, 1872 - Section 57 - Reforms in prisons - Judicial
notice can be taken of prevailing conditions in jails.
The work load of superintendence should be distributed in a graded
way and the officers should have the direct charge of such divided
responsibilities. It is necessary that a large dose of good living
should be introduced into jail life. Ordinarily religious teaching
would carry a level of elevation in that regard.
Juvenile Justice Act, 1986 - Sections 2(e), 2(h) and 10 - Children
Act, 1960 - Sections 2(e), 2(j) and 10 - Prisoners Act, 1900 -
Sections 15 and 16 - Judicial mind must be applied in cases where
there is doubt about the age not necessarily by a trial and every
warrant must specify the age of the person to be detained - Authorities
not to accept any warrant of detention as a valid one unless the
age of the detenu is shown therein - It shall be open to the jail
authorities to refuse to honour a warrant if the age of the person
remanded to jail custody is not indicated.
Authorities not to accept any warrant of detention as a valid
one unless the age of the detenu is shown therein. It shall be
open to the jail authorities to refuse to honour a warrant if
the age of the person remanded to jail custody is not indicated.
Punjab Jail Manual, Chapter VI, Rule 273 - Prisons Act, 1894 -
Section 27 - Transfer of warders - Supreme Court direct that steps
should be taken to shift the warders at the end of every three
years - Such transfer will indeed be helpful in restoring discipline
in the jail.
Prisons Act, 1894 - Section 27 - Constitution of `Visitor's Board'.
The Visitors' Board should consist of cross-sections of society;
people with good background, social activitists, 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 undertrials.
The Visitors' Board should consist of cross-sections of society;
people with good background, social activitists, people connected
with the news media, lady social workers, jurists, retired public
officers from the judiciary as also the executive.
A news reporter and a trainee sub-editor of a newspaper moved
the Supreme Court with a petition in Public Interest for appropriate
directions to the Delhi Administration and the authorities of
the Central Jail at Tihar, pointing out features of maladministration
within the jail relating to juvenile undertrial prisoners. During
the pendency of the proceedings, the court made several orders
with reference to juvenile prisoners and undertrials. On October
28, 1983 this Court directed :
When these writ petitions came up for having before us we had
certain hesitation in entertaining them because under juvenile
prisoners in Tihar Jail where some directions had been given by
the High Court and we were anxious to avoid a parallel investigation
particularly since in matters of this kind it is desirable that
the High Courts should be activised. But since no inquiry into
the conditions prevailing in the Tihar Jail, insofar prisoners
in the juvenile ward are concerned, had been ordered and what
was ordered was only a limited inquiry relating to medical examination
of 7 juvenile prisoners who were directed to be produced in Court,
we thought that we would be failing in our constitutional duty
if we do not take judicial action and direct the District Judge
to visit Tihar Jail for making inquiry into the conditions prevailing
in the Tihar Jail insofar as the prisoners in the juvenile ward
are concerned. We decided to entrust this task to the District
Judge because he is even otherwise visitor at the Tihar Jail and
we thought it would be better to send an officer who is ultimately
responsible for ensuring proper conditions in the Tihar Jail rather
than entrust this work to an outside organisation or agency. We
are glad that we made this order because the report made by the
District Judge discloses a shocking state of affairs insofar as
juvenile prisoners are concerned. The District Judge has interviewed
some of the juvenile prisoners in regard to whom he learnt, as
a result of inquiry made by him, that they had been subjected
to sexual assault by the adult prisoners. The juvenile prisoners
who made statements before the District Judge have expressed apprehension
that they might get into difficulties and be victimised if their
names are disclosed and the District Judge has also suggested
in his report that either the names should not be disclosed or
if the names of these juvenile prisoners are disclosed, adequate
protection should be granted to them. We do not think it would
be right not to disclose the names of these juvenile prisoners
while supplying copies of the report of the District Judge to
the advocates of the parties but we do think it necessary to provide
adequate protection to them. We would, therefore, direct that
the following undertrial juvenile prisoners, namely, .........
shall be released immediately in the course of the day on their
executing a bond of Rs. 500 each before the Superintendent of
Tihar Jail. There are also three convicted juvenile prisoners
in the Tihar Jail, namely ........ who have given statements to
the District Judge. They should be released forthwith an parole
for a period of one month on their executing a bond for Rs. 500
each before the Superintendent of Tihar Jail that they will surrender
themselves to the jail authorities on the expiration of the period
of one month. The release of these three convicted juvenile prisoners
on parole will also be done in the course of the day. We may make
it clear that we are making this order for release of the aforementioned
juvenile prisoners - undertrial as well as convicted - only with
a view to protecting them and we are, at the present moment, not
passing upon the correctness or otherwise of the statements made
by them.
The learned Additional Solicitor General on behalf of the respondents
states that Munshi Rajinder Singh alias Raju will be forthwith
transferred from the Tihar Jail and that in any other jail to
which he is transferred, it will be ensured that he does not have
anything to do at all with juvenile prisoners. This transfer shall
also be carried out forthwith. Meanwhile, the Superintendent of
Tihar will take steps to ensure that Munshi Rajinder Singh alias
Raju is not allowed any access to the juvenile ward and is also
not allowed to come into contact in any manner whatsoever with
the prisoners in the juvenile ward and this will be the personal
responsibility of the Superintendent of Tihar Jail. So far as
the warder Onkar Singh (who has also been referred to in the report
of the District Judge) is concerned, the learned Additional Solicitor
General appearing on behalf of the respondents states that immediate
steps will be taken to place him under suspension and in the meanwhile,
he will not be allowed to go inside the premises of Tihar Jail.
The Superintendent of Tihar Jail will also ensure that no juvenile
prisoners is directed to go to Jail will also ensure that no juvenile
prisoner or prisoners or to do any work for them including cooking
or cleaning.
The learned Additional Solicitor General States on behalf of the
respondents that there are a number of juvenile undertrial prisoners
whose cases require to be considered for the purpose of releasing
them on bail and that he would prepare a chart setting out the
names and particulars of these undertrial prisoners and place
such chart before the Court on October 31, 1983 for passing appropriate
orders .......
On October 31, 1983, the court made a further order to the following
effect :
.......... The learned counsel for the respondents will intimate
to the court as to which of the 131 juvenile prisoners confined
in Tihar Jail whose names are mentioned in the chart handed over
by the learned Additional Solicitor General appearing on behalf
of the respondents are to be released on bail, having regard to
the nature of the offences alleged to have been committed by them
and other relevant circumstances which have already been set out
by this Court in Hussainara Khatoon cases (Hussainara Khatoon
v. Home Secretary, (1980) 1 SCC 81-115 : 1980 SCC (Cri) 23-57).
We would also like to know as to what is the procedure being followed
by the courts of Metropolitan Magistrates in Delhi when a young
accused is produced before them for the purpose of ascertaining
whether he is a child or not within the meaning of the Children's
Act and if he is not a child and is sent to judicial custody then
what is the procedure being followed by the Superintendent of
the Tihar Jail for determining whether he is a juvenile within
the meaning of Jail Manual where a juvenile is defined as a prisoner
who has not attained the age of 18 years. We are anxious to ensure
that no child within the meaning of the Children's Act is sent
to the jail because otherwise the whole object of the Children's
Act of protecting the child from bad influence of jail life would
be defeated. It is also a matter of anxiety for us to see that
juveniles between the age of 16 to 18 years who are put in custody
in the jail are being kept in separate ward and are allowed to
intermingle with adult prisoners because that would also expose
them to mal-influences which may prevent their proper rehabilitation
.......
Several other interlocutory orders and directions were given and
the Sessions Judge was requested to visit the jail on more than
one occasion under order of the court. He made very useful reports.
As a result of these exercises taken during the pendency of the
writ petitions, on substantial achievement has been that Tihar
Jail no more accommodates juvenile delinquents and their jail
has been separated. On account of the repeated directions from
this Court the jail administration has now been obliged to undertake
erection of a separate jail as an additional place for housing
juvenile prisoners and undertrials and the construction is coming
up, as reported. On account of the exposure, the jail administration
has been obliged to place the administration of the jail in the
hands of a superior officer.
Monitoring the affairs of a jail is a difficult job for this Court
but on account of the fact that the Tihar Jail is in the capital
of the country and on account of the advantages of publicity available
through the media and otherwise, affairs of the jail have received
due publicity over the last four years where these matters have
been pending before this Court and it is time that we should dispose
them of finally.
We had called upon counsel for the parties to furnish their suggestions
for improvement of the jail administration and pursuant to this
direction counsel for the petitioners has given certain suggestions
on two instalments. Learned Additional Solicitor General has also
joined her in making certain suggestions in that regard. Before
we refer to them we think it appropriate to emphasise that those
who are in charge of the jail administration from bottom to top
must develop the proper approach to deal with the prisoners and
undertrials. It is true that a considerable number of hardened
prisoners live in the jail and those who have a longer term of
sentence to suffer stay on for quite a part of their life behind
the prison bars. Longer stay at one place brings in familiarity
and familiarity generates a number of human reactions. There is
no provision in the jail manuals and, perhaps it is difficult
as a rule to adopt, that the long-term prisoners should keep on
shifting from jail to jail. Whatever may have been the philosophy
of punishment in the past, today the prison house is looked upon
as a reformatory and the years spent in the jail should be with
a view to providing rehabilitation to the prisoner after the sentence
is over. That would not be possible to overnight and, therefore,
cannot be deferred to materialise on the date of release. The
wrong side has to be given up and the virtuous way of living has
to be acquired. Both are difficult processes. Therefore, the prison
house, in case the true purpose is to be achieved, has to provide
the proper atmosphere, leadership, environment, situations and
circumstances for the regeneration. Members of the staff of the
jail from bottom to top (we have purposely not said top to bottom)
must be made cognizant of this responsibility and that awareness
must be reflected in their conduct. Judicial notice can be taken
of prevailing conditions in our jails and what we have stated
above is still utopian. But if a change has to be brought about
it has to start from somewhere and Tihar Jail, in our opinion,
is probably most suited for that purpose being located at the
seat of the national capital and being under the direct management
of the Union of India (through, of course, the Delhi Administration).
This can be the institution to set the move in motion.
The work load of superintendence should be distributed in a graded
way and the officers should have the direct charge of such divided
responsibilities. It is necessary that a large does of good living
should be introduced into jail life. Ordinarily religious teaching
would carry a level of elevation in that regard. Ours being a
Secular State there may perhaps be an immediate counter-reaction
to religion being tolerated anywhere but we never intend to speak
of that religion which is enigmatic to the concept of secularism.
We refer to the essence of all religions - a factor common to
every religion humanism - which is so much necessary to good living.
We hope and trust that the jail administration and in particular
and Administrator would take into consideration this aspect and
try to generate a sense of humanism in these officers and those
in the ranks below them so that the prisoners should have direct
contact with them and benefit by every contact with those officers
in getting round to the right approach in life.
It is time to turn to brass tacks. We have come across cases where
the warrant, be it for the undertrial or the prisoner, when sent
by the court does not indicate the age of the prisoner authorised
to be detained in the jail. This is a very wrong practice and
is obviously in breach of the direction issued by this Court.
We call upon every magistrate or trial judge authorised to issue
warrants for detention of prisoners to ensure that every warrant
authorising detention specifies the age of the person to be detained.
Judicial mind must be applied in cases where there is doubt about
the age - not necessarily by a trial - and every warrant must
specify the age of the person to be detained. We call upon the
authorities in the jails throughout India not to accept any warrant
of detention as a valid one unless the age of the person remanded
to jail custody is not indicated. It would be lawful for such
officers to refer back the warrant to the issuing court for rectifying
the defect before it is honoured. Since it will create problems
in keeping the undertrial or the prisoner during the intervening
period, the judicial officer should realise his responsibility
in accepting this direction and giving full effect to it. In exceptional
cases, when the warrant is referred back for rectification, the
person covered by the warrant may be kept at the most for a week
pending rectification and taking responsibility of the situation.
On the basis of the age indicated in the warrant, it shall be
the obligation of the jail authorities to find out, so far as
Delhi is concerned, whether the prisoner covered by the warrant
should be detained in the Tihar Jail or in the Juvenile Jail.
Though the place of stay has now been segregated, there is possibility
of contact between the hardened criminals and the juvenile delinquents
if there is no proper segregation in assignment of work. We direct
that due care shall be taken to ensure that the juvenile delinquents
are not assigned work in the same area where regular prisoners
are made to work. Care should be taken to ensure that there is
no scope for their meeting and having contacts.
We direct that steps should be taken to shift the warders at the
end of every three years. This is a principle which had been accepted
in the Punjab Jail Manual (Chapter VI, Rule 273). Delhi Administration
has a difficulty in doing so in a real way because it has only
one jail and may have one more when the other jail under construction
comes up, but there is no other place to which warders can be
transferred. The Administration should take note of the situation;
the rules should be changed and the warders may either be interchanged
with some other category of service working outside the jail or
a common Union Territory service could be set up to permit the
same. Such transfer will indeed be helpful in restoring discipline
in the jail.
The Visitors' 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 undertrials.
Overcrowding in jails is a regular feature. As against a sanctioned
capacity of 2023, on the average 4000 prisoners are lodged in
the Tihar Jail. We hope and trust that this aspect will be kept
in view, though from a practical point overcrowding may to a reasonable
extent have to be tolerated. We hope with the commissioning of
the new jail, pressure in this regard to some extent would be
reduced.
[Sanjay Suri vs. Delhi Administration;1988-(075)-AIR -0414 –SC;1988-(094)-CRLJ
-0705 –SC;1988-(SUP)-SCC -0160 –SC]
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