Public emotions, and the process of law, are seen in conflict. Many of the rights of prisoners have flowed from the Supreme Court over the years through various verdicts.
We saw in recent weeks public anger over the rape and murder of a young doctor in Hyderabad, as well the delay in the execution of convicts involved in the Nirbhaya case. There was also celebration by large sections of the society when news came of the death of the four accused in the Hyderabad incident; they were killed in a police encounter, the legitimacy of which is now a matter for the court to decide. In general, there is an outrage that even those accused of heinous crimes get a variety of legal protections once they are arrested.
Article 32(2) says that the Supreme Court “shall have the power to issue directions or orders or writs… for the enforcement of any of the rights conferred by this Part”.
In such cases, public emotions (which are understandable), and the process of law (which is unambiguously established), are seen in conflict. Many of the rights of prisoners have flowed from the Supreme Court over the years through various verdicts. The trigger for these can be traced to an entirely unrelated case, that of Maneka Gandhi versus Union of India (1978). Following the lifting of Emergency and the arrival of the Janata Party government at the Centre, Maneka Gandhi, through her magazine Surya, had launched a scathing attack on the Morarji Desai regime, carrying reports of alleged wrongdoings by those related to some of its senior ministers. In 1977, when she planned to go abroad to participate in a programme where she was scheduled to deliver a lecture, she received communication from the local authorities that her passport had been impounded in public interest, under Section 103(c) of the Passports Act.
The Section gave the government the right to impound or even revoke the passport of an Indian citizen in the “interests of the sovereignty and integrity of India”, or if the act of the said individual could harm friendly relations with a foreign country, or goes against the “interests of the general public”. Maneka Gandhi filed a petition in the Supreme Court challenging the decision and the government’s refusal to cite the exact reasons for its move. She also claimed that her fundamental right under Article 21 had been violated. She filed the petition by exercising the right guaranteed under Article 32, which reads: “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” The Part referred too is Part III of the Constitution which deals with Fundamental Rights. Article 32(2) says that the Supreme Court “shall have the power to issue directions or orders or writs… for the enforcement of any of the rights conferred by this Part”.
The court ruled in the petitioner’s favour, invoking not just Article 21 but also Articles 14 and 19. Justifying its decision to do so, the Bench said that “Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights… They are all parts of an integrated scheme in the Constitution”. The most interesting aspect of this judgment was that it later led to the expansion of the phrase, except according to the procedure established by law. Article 21 says, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” In a verdict concerning another case (1980), the apex court relied on the Maneka Gandhi case and said, “No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.”
The ruling in the Maneka Gandhi case opened the floodgates for the expansion of the concept of life and personal liberty as enumerated in Article 21. ‘Right to life’ became ‘right to life with dignity’. This also extended to the rights of prisoners — even those involved in heinous crimes like rape and murder — in many ways. For instance, the court ruled that prisoners could not be handcuffed without adequate reason. (In the Hyderabad case, questions were asked of the police on this issue: Since, according to the police, the accused had snatched the weapons from the police, why had the accused not been handcuffed when they were taken to the crime spot?). The handcuffing matter had been dealt with by the Supreme Court in Prem Shankar Shukla versus Delhi Administration case (1980). Shukla, an undertrial prisoner, had petitioned the court against being handcuffed while being taken from jail to a magistrate’s court in the course of hearings. The apex court, citing Articles 14 and 19, said no prisoner should be “fettered routinely or for the custodian or escort”. And when extreme cases required the prisoner to be handcuffed, the reasons had to be clearly recorded by the officials. The result has been that in several instances, prisoners, not restricted by handcuffs, have escaped, and policemen have had to face departmental proceedings for their ‘negligence’.
Hours after the Hyderabad rape and murder incident, one lawmaker demanded that the culprits be “lynched”. Enraged citizens called for the public hanging of culprits.
The apex court has also ruled that prisoners (regardless of the grim nature of the crime they are alleged to have committed) have the right to be treated with dignity. In Sunil Batra versus Delhi Administration (1980), the court had converted a letter written by death row convict Sunil Batra into a habeas corpus proceeding. The letter alleged that another prisoner in the same jail had been tortured by a jail official to extract money from the victim. An amicus curiae was appointed, and on visiting the prison and conducting an investigation, the court-appointed officer confirmed torture. The apex court’s two-judge Bench observed that “in the eye of the law, prisoners are persons and not animals”. Here too, Part III of the Constitution was invoked, and the Maneka Gandhi as well as article 14, 19 and 21 were referred to.
While nobody will say that prisons should be unsafe for prisoners, it becomes difficult to digest the general argument that people who have committed the most barbaric and inhuman acts should be given humane and dignified treatment — and that too, to an extent that such consideration becomes a mockery of the rights of the victims and their families.
Hours after the Hyderabad rape and murder incident, one lawmaker demanded that the culprits be “lynched”. Enraged citizens called for the public hanging of culprits. But here again the law provides for protection against public hanging. In Attorney General of India versus Lachma Devi case (1986), the Supreme Court had said that such an execution would be a “revolting spectacle harking back to earlier centuries”. The court ess hearing a petition arising out of an initial order of the Rajasthan High Court which had pronounced death by hanging in public of a convict; it later revoked that order on the ground that the Jail Manual rules did not provide for such a form of execution. The apex court made it clear that, even if the Jail Manual were to provide for such a practice, the court would find it violative of Article 21 of the Constitution.
This apart, provisions made in the Constitution and those which were laid down as law by the Supreme Court to facilitate fair and full justice, have largely being misused to not just delay but also deny timely justice. That is the root cause of public anger, which at times gets reflected in calls for and acts of instant justice, or what is termed as ‘extra-judicial justice’.
1. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.