IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 406 OF 2013
RE- INHUMAN CONDITIONS IN 1382 PRISONS
I.A. No. 68248 of 2017
J U D G M E N T
Madan B. Lokur, J.
1. Custodial violence has always been a matter of great concern for all
civilized societies. Custodial violence could take the form of third degree
methods to extract information – the method used need not result in any
physical violence but could be in the form of psychological violence.
Custodial violence could also include a violation of bodily integrity through
sexual violence – it could be to satisfy the lust of a person in authority or for
some other reason. The ‘Mathura Rape Case’ is one such incident that most
are familiar with. Custodial violence could, sometimes, lead to the death of
its victim who is in a terribly disadvantaged and vulnerable condition. All
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these forms of custodial violence make it abhorrent and invite disparagement
from all sections of civilized society.
2. Like most societies, we are not strangers to custodial violence and
unnatural deaths but our vibrant democracy permits us to debate and discuss
these issues with rational arguments. However, right sounding noises critical
of custodial violence (in any form) cannot achieve any useful purpose unless
persons in authority hear the voices of the victims or the silence of the dead
and act on them by taking remedial steps. There must be a greater degree of
sensitivity among those in authority with regard to persons in custody and it
has been the endeavour of the constitutional courts in our country, over
several decades, to consistently flag this issue. The results have been
somewhat mixed but the effort will continue as long as Article 21 remains in
our Constitution. This message goes out loud and clear, as also the message
that the dignity of the individual is not a plaything for those in authority.
3. Chief Justice R. C. Lahoti highlighted one aspect of custodial deaths,
namely, unnatural deaths in prisons. This was through a letter addressed to
this Court which has been treated as a public interest litigation. We have
been very ably assisted in understanding the concern raised and in
appreciating different perspectives on the issue by the learned Amicus
Curiae Mr. Gaurav Agrawal who has spent considerable time and effort in
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placing all relevant material before us and for this he deserves our gratitude.
4. In our judgment and order of 5th February, 2016
1 we had drawn
attention to four issues regarding prisons raised in the letter addressed by
former Chief Justice Lahoti. The four issues are: (i) Overcrowding in
prisons; (ii) Unnatural death of prisoners; (iii) Gross inadequacy of staff, and
(iv) Available staff being untrained or inadequately trained
5. In the order of 5th February, 2016 we had dealt with the issue of
overcrowding in prisons and had issued certain directions. In the present
decision, we consider unnatural deaths in prisons. On this issue of unnatural
deaths in prisons, the only reliable information available is from the National
Crime Records Bureau or the NCRB. The website of the NCRB
that deaths in judicial custody, both natural and unnatural, are as under:
Year Natural deaths Unnatural deaths
2012 1345 126
2013 1482 115
2014 1507 195
2015 1469 115
6. The distinction made by the NCRB between natural and unnatural
deaths is unclear. For example, if a prisoner dies due to a lack of proper
medical attention or timely medical attention, would that be classified as a
Re- Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700
W.P. (C) No. 406/2013 etc. Page 4 of 43
natural death or an unnatural death? This needs to be explained as submitted
by the learned Amicus.
7. Be that as it may, the break-up of unnatural deaths given by the
NCRB on its website is as under:
Year Suicide Murder
2012 87 4 10 4 0 22
2013 70 8 1 12 0 23
2014 94 12 2 4 1 82
2015 77 11 0 7 0 19
8. Again, there is a lack of clarity in the classification of unnatural
deaths in the category of ‘others’. What does this category encompass? We
have not been provided any information in this regard by the Union of India
and it is submitted by the learned Amicus, that the NCRB should be directed
to explain the difference not only between a natural death and an unnatural
death but also to clarify the sub-categorization of ‘others’ unnatural deaths.
9. On the issue of defining natural and unnatural deaths, the learned
Amicus drew our attention to the Guidelines on Investigating Deaths in
Custody issued by the International Committee of the Red Cross (ICRC).
According to the ICRC, ‘death’ is the irreversible cessation of all vital
functions, including brain activity. Death is ‘natural’ when it is caused
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solely by disease and/or the aging process. It is ‘unnatural’ when its causes
are external, such as intentional injury (homicide, suicide), negligence or
unintentional injury (death by accident). We have perused the guidelines
provided by the ICRC and are of the view that these guidelines deserve
consideration and circulation by the Central Government and all the State
NHRC and suicide prevention
10. It has been pointed out by the learned Amicus that a disproportionately
large number of unnatural deaths are attributable to suicides. In this regard,
it has been brought to our notice by the learned Amicus that in relation to
suicides in prisons, the National Human Rights Commission or the NHRC
has published a monograph sometime in December 2014 entitled “Suicide in
Prison – prevention strategy and implication from human rights and legal
points of view”. This monograph records that during the period 2007–2011,
deaths in prisons on account of suicide formed 71% of the total number of
unnatural deaths. It was also pointed out that the average suicide rate among
the general public for this period is 11 (per 100,000) whereas the average
suicide rate in prison is 16.9 (per 100,000). In other words, the average
suicide rate in prisons is over 50% more than in normal conditions. The
monograph refers to certain communications issued by the NHRC from time
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to time on the aspect of custodial deaths, but we will refer to them in
somewhat greater detail a little later.
11. The study conducted by the NHRC as reflected in the monograph
suggests that there are two primary causes for all jail suicides – the first is the
environment in the jail, which is apparently ‘conducive’ to suicidal
behaviour, and the second is the crisis situation faced by an inmate.
12. Detailing the characteristics of a prison environment that make
suicides in prisons more likely, the NHRC monograph mentions the
1. Authoritarian environment.
2. No apparent control over the future.
3. Isolation from family, friends and community.
4. The shame of incarceration.
5. Dehumanizing aspects of incarceration.
7. Staff insensitivity to the arrest and incarceration
8. Hostility and bullying by other inmates.
9. Lack of adequate medical and psychological counseling and
10.Delay in deciding the parole.
Similarly, the characteristics of a crisis situation are mentioned and they are
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1. Recent excessive drinking and/or use of drugs.
2. Recent loss of stabilizing resources.
3. Severe guilt or shame over the offence.
4. Same-sex rape.
5. Current mental illness.
6. Poor health or terminal illness.
7. Approaching an emotional breaking point.
13. The NHRC has suggested various protective factors or measures that
could be employed to reduce the number of suicides in prisons. Among them
are visits and contact that the prisoner could have with the family,
constructive occupation in prison, instilling hopes and plans for the future
and support from staff.
14. The NHRC also conducted a National Seminar on Prison Reforms on
15th April, 2011. The recommendations made in the National Seminar have
also been indicated in the monograph as also some actionable points for
suicide prevention programmes. In its conclusion, the NHRC has recorded
that the success of efforts to prevent suicides in prisons depends on the
ability and willingness to identify the vulnerability of each prisoner, provide
necessary supervision and support and offer alternative ways of coping and
reducing emotional distress. It is noted that any proposed piecemeal solution
to the problem of suicides in prisons will not result in any long-term
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15. What we have mentioned above is only a brief indication of the extent
to which the NHRC has put in an effort to bring about a composite
monograph and a detailed study on suicides in prisons. In our view, this
would certainly be useful to prison officials and staff in reducing, if not
eliminating suicides in prisons. The monograph prepared by the NHRC, in
our opinion, deserves to be freely distributed amongst the staff and prisons
all over the country since it is a document of immense utility insofar as
suicide prevention in prisons is concerned.
Relevant communications issued by the NHRC
16. Apart from the above efforts of the NHRC, our attention has been
drawn by the learned Amicus to various communications sent by the NHRC
to the Chief Secretaries of all the States and the Union Territories. The first
such communication is dated 14th December, 1993 on the subject of
reporting of custodial deaths/rapes within 24 hours. A request was made in
the communication that District Magistrates and Superintendents of Police
may be given suitable instructions to report to the Secretary General of the
NHRC any custodial death or custodial rape within 24 hours of occurrence
or of these officers coming to know of such an incident.
17. Another communication dated 21st June, 1995 was sent by the NHRC
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to all the Chief Secretaries of States and the Union Territories clarifying that
not only deaths in police custody but also deaths in judicial custody ought to
be reported. This clarified the communication of 14th December, 1993 which
was perhaps misunderstood by the Chief Secretaries and their subordinates
to mean that the intention of the NHRC was to obtain information only with
regard to deaths in police custody and not deaths in judicial custody.
18. On 10th August, 1995 the NHRC addressed a communication to the
Chief Ministers of all the States on the necessity of video-recording of postmortem
examinations in cases of custodial deaths. The reason behind this
communication was that a post-mortem report is a very valuable record and
has considerable importance in assisting in drawing conclusions on the cause
of death of a person, particularly in a police lock-up or in a jail. The NHRC
noted that though the process of video-recording of the post-mortem
examination would involve extra cost, human life is more valuable than the
cost of video-recording and in any case, occasions necessitating videorecording
should ideally be very limited.
19. The NHRC addressed a communication on 27th March, 1997 to the
Chief Ministers/Administrators of all the States/Union Territories requesting
adoption of the Model Autopsy Form and the additional procedure for
inquest. The Model Autopsy Form was prepared after ascertaining the views
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of the States and discussing with experts in the field the necessity of having
such a document. The Form was modeled on the United Nations Model
Autopsy Protocol but was not adopted as it is. Some incidental
improvements were made, particularly with regard to the conduct of
inquests. The communication enclosed therewith the Model Autopsy Form
and the additional procedure for inquest as annexures to the said letter.
20. The NHRC sent a communication dated 3rd January, 2001 to all the
Home Secretaries regarding the revised instructions to be followed while
sending post-mortem reports in cases of custodial death. In order to
streamline the procedure, the NHRC issued certain instructions and among
them were the following:
1. The post-mortem report along with the videograph and
the magisterial enquiry report must be sent to the NHRC
within two months of the incident.
2. The post-mortem report should be sent in the proforma
attached to the letter dated 27
th March, 1997.
3. The magisterial enquiry into a custodial death should be
completed as soon as possible but within a period of two
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4. In some cases of custodial death, the viscera are sent for
examination after the post-mortem examination and a report is
called for. Since this may take some time, it was instructed that
the post-mortem report and other documents should be sent to
the NHRC without waiting for the viscera report, which could
be sent later on.
21. On 21st December, 2001 the NHRC addressed a communication to all
Chief Ministers and Administrators of all the States and Union Territories
giving modified instructions regarding videography of post-mortem
examinations in respect of deaths in judicial custody. It was clarified that the
requirement of videographing of post-mortem examinations in respect of
deaths in jail would be applicable only where the preliminary inquest by the
Magistrate had raised suspicion of foul play or where any complaint alleging
foul play was made to the concerned authorities or there was any other
reason to suspect foul play.
22. It is clear from the above that the role of the NHRC is extremely
important whenever there is an unnatural death in a prison. Although the
NHRC has issued detailed instructions from time to time, it does appear
however that these instructions are not being taken seriously but are being
followed more in the breach.
W.P. (C) No. 406/2013 etc. Page 12 of 43
Nelson Mandela Rules
23. The learned Amicus submitted that the General Assembly of the
United Nations adopted the Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules) adopted on 17th December, 2015.
These Rules provide useful internationally accepted guidelines for
implementation by prison administrations across the country. He drew our
particular attention to Rules 58 to 63 which deal with prisoner contact with
the outside world. It was submitted that merely because a person is in prison,
it does not mean that he or she should be cut off from the outside world. In
fact, the prisoner should be allowed to communicate with his family and
friends at regular intervals and should also be permitted to communicate and
consult with a legal adviser of his or her choice. This by itself could have a
soothing effect on the prisoner. He submitted that prisoners should be
informed of important items of news through newspapers, periodicals or
special institutional publications so that contact with the outside world is
maintained. This, according to the learned Amicus, would substantially
reduce the feeling of isolation that a prisoner has and would have an impact
on his or her mental stability thereby reducing the possibility of any harmful
activity by the prisoner.
24. On the specific issue of custodial deaths, the learned Amicus drew our
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attention to Rule 71 of the Nelson Mandela Rules to submit that any
custodial death, disappearance or serious injury shall be reported without
delay to a judicial or other competent authority that is independent of the
prison administration. The learned Amicus also pointed out that the Mandela
Rules require the prison administration to treat the body of a deceased
prisoner with respect and dignity.
Model Prison Manual
25. The learned Attorney General responded to the submissions of the
Amicus by making a preliminary submission before adverting to the issue of
unnatural deaths in prisons. He submitted that the subject of prisons was a
State subject in Entry 4 of List II of the Seventh Schedule to the
Constitution and as such the Central Government could not legislate on the
subject or pass any binding directions but could only issue advisories to the
State Governments. Really therefore, the burden of improving prison
conditions was on the State Governments but the Central Government would
be more than willing to render assistance to this Court and to the States in
improving prison conditions, within constitutional limits. With this caveat,
the learned Attorney General adverted primarily to the Model Prison Manual
2016 issued by the Government of India through the Ministry of Home
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26. It was submitted that Chapter VII of the Manual and particularly
paragraph 7.95.1 thereof, provides that in the event of a custodial death, the
procedure laid down in the Code of Criminal Procedure, 1973 and the
guidelines issued by the NHRC should be followed. On this basis, it was
submitted that the guidelines issued by the NHRC are treated more or less as
binding and are scrupulously followed.
27. Reference was also made to Chapter XIII of the Manual and the
section therein on ‘Accidents and Suicides’. Particular reference was made
to paragraph 13.38 which is to the effect that when a sudden or violent death
or suicide takes place in a prison, immediate notice shall be sent to the
concerned Superintendent and the Medical Officer. Paragraph 13.41 relates
to custody of articles that could be used to commit suicide such as knives
and tools used in worksheds and barber’s or tailor’s equipment as well as
ropes for wells. It is provided that care should be taken that no such object is
left about in the prison that may be used for committing suicide. In fact in
paragraph 13.42 it is stated that prisoners with apparently suicidal tendencies
should be carefully watched and not left alone in a cell. Such prisoners
should also be referred to counselors and psychiatrists and should be
supervised closely. Chapter XIII of the Manual also provides that reasonable
caution should be taken to guard against accidents when convicts are
W.P. (C) No. 406/2013 etc. Page 15 of 43
employed on dangerous work such as blasting, excavation or other works of
a dangerous character. It is also provided in paragraph 13.44 that poisonous
drugs, surgical instruments and other similar items should not be left within
the reach of prisoners.
28. The said Chapter XIII of the Manual contains a section devoted to the
issue of prevention of fires and yet another section is devoted to epidemics
and precautions to be taken when an epidemic occurs such as cholera,
enteric fevers, gastroenteritis etc. It is provided that infected prisoners
should be segregated and kept under medical observation and appropriately
treated. Paragraph 13.62 provides that whenever an epidemic occurs, the
Medical Officer shall at once arrange for vaccination or inoculation as the
case may be of all prisoners, prison personnel and members of their families.
Paragraph 13.63 provides that overcrowding must be strictly avoided both in
the hospital as well as in every cell and ward. This Chapter also contains a
section devoted to hunger strikes and the procedure to be followed in cases
of hunger strikes and forcible feeding of prisoners on a hunger strike.
29. The learned Attorney General brought to our notice that NGOs also
have a role to play in rehabilitation programmes of prisoners as mentioned in
Chapter XXII of the Manual. He also submitted that legal aid is provided to
prisoners and in fact Chapter XVI of the Manual is devoted entirely to legal
W.P. (C) No. 406/2013 etc. Page 16 of 43
aid and the right of a prisoner to free legal representation or legal aid. There
is also a reference in the Manual to the Under Trial Review Committee
adverted to in our order dated 5
th February, 2016.
30. The learned Attorney General submitted that there exists a grievance
redressal system as mentioned in Chapter XXI of the Manual. Consequently,
if any prisoner has any grievance, he or she can bring it to the notice of the
authorities through a complaint box installed in the prison at an easily
accessible place. In this context, he drew our attention to the ‘Perspective’
section of the Manual containing a section on the rights and duties of
prisoners which includes the right to human dignity, the right to basic
minimum needs, the right to communication, the right to access to law, the
right against arbitrary prison punishment, the right to meaningful and gainful
employment and finally the right to be released on the due date. It is not at
all clear whether this information is effectively passed on to the prisoners.
Our attention was also drawn to a handbook for prisoners captioned
“Prisoners Rights and Obligations” prepared by the Bureau of Police
Research and Development. While we have no comment to make on the
contents of the handbook, it is again not clear whether it is made available to
all the prisoners and even if it is made available, whether it is in a local
language that the prisoner understands or whether the contents of the
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handbook are explained to the prisoner in the event the prisoner is found to
be illiterate. In the absence of a prisoner having any knowledge about his or
her rights, a grievance redressal mechanism is quite meaningless.
Compendium of Advisories issued by the Government
31. The learned Attorney General then placed before us a Compendium of
Advisories on Prison Administration 2016 issued by the Government of
India. This was in the context of his submission that since ‘prisons’ is a State
subject as per Entry 4 of List II of the Seventh Schedule of the Constitution,
all that the Central Government can do is to issue advisories to the State
Governments on the subject of prisons. The learned Attorney General
submitted that advisories had been issued from time to time to the State
Governments on a variety of issues, including on the issue of prison
administration as well as stress relieving programmes such as yoga and
meditation courses, Art of Living courses, Pranic courses and Vipassana.
32. All that we can say in this regard is that while the Central Government
may have noble intentions and is perhaps taking steps to improve prison
administration and to bring about reforms in prisons, the fact remains that
conditions in prisons leave a lot to be desired and there are quite a few
unnatural deaths in prisons. Suggestions and recommendations made by the
Central Government do look good on paper but they do not seem to have
W.P. (C) No. 406/2013 etc. Page 18 of 43
any remedial effect. Perhaps it is time that the Ministry of Home Affairs
takes a more proactive interest in prisons and prison reforms by having
sensitization programmes for those at the helm of affairs in prisons so that
there is a positive impact on the ground. After all, even if it is assumed that
the Central Government has certain constitutional limitations with regard to
prison management, surely, it cannot be said that the Central Government
need not share its expertise or give any guidance to the State Governments.
33. Adverting to the Nelson Mandela Rules, the learned Attorney General
also expressed the view that State Governments have several development
priorities and while they will certainly look after the interests of prisoners,
there are other issues that might require greater attention and greater
financial commitment. While this may be so, we are clearly of the view that
Article 21 of the Constitution cannot be put on the back burner and as
mentioned in the Mandela Rules even prisoners are entitled to live a life of
dignity. Therefore, no State Government can shirk its duties and
responsibilities for providing better facilities to prisoners. If a State
Government is unable to do so, it should be far more circumspect in
arresting and detaining persons, particularly under-trial prisoners who
constitute the vast majority of those in judicial custody. The State
Governments and the prosecution do not have to oppose every bail
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application nor do they have to ask for the remand of every suspect pending
investigation. If the fundamental right to life and liberty postulated by
Article 21 of the Constitution is to be given its true meaning, the Central
Government and the State Governments must accept reality and not proceed
on the basis that prisoners can be treated as chattel.
Challenges indicated by the Comptroller and Auditor General
34. The National Forum for Prison Reforms, an intervener in the present
petition, submitted that there should be a ‘performance audit’ by the
Comptroller and Auditor General in respect of prisons so that it is known
whether all prisons are in fact adhering to the provisions of the Model Prison
Manual or at least the rules and regulations framed by the State Government
for the management of prisons.
35. Our attention was drawn to the report of the Comptroller and Auditor
General of India (CAG) in respect of the Government of NCT of Delhi for
the year ended 31st March, 2014 in relation to social, general and economic
sectors. The submission made by learned counsel appearing for the National
Forum was that as a result of what could be termed as a performance audit,
the CAG provided some very useful suggestions. In the particular audit
referred to, it was pointed out that the hospital in Tihar Jail was not equipped
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to face any emergency situation as there was a shortage of doctors and other
medical staff ranging from 18% to 62%. A reference was also made in the
report to the problem of substance abuse in prisons and the shortcomings
noted in the Drug De-addiction Centre in Tihar Jail. One of the shortcomings
was the non-availability of essential medicines for a period ranging from one
to thirty-four months. If these are the conditions in what is perhaps the ‘best
prison’ in the country, we shudder to think what the position would be in
other prisons across the country.
36. The learned counsel also made a reference to Section 176(1A) of the
Code of Criminal Procedure, 1973 which mandates that where there is a
death or disappearance from the custody of the police or any other custody
authorized by a Magistrate or a Court, in addition to the inquiry or
investigation held by the police, an inquiry shall be held by the Judicial
Magistrate or the Metropolitan Magistrate, as the case may be, within whose
local jurisdiction the offence has been committed.3
It was submitted that in
176. Inquiry by Magistrate into cause of death.— (1) When the case is of the nature referred to in clause (i) or
clause (ii) of sub-section (3) of Section 174, the nearest Magistrate empowered to hold inquests shall, and in any
other case mentioned in sub-section (1) of Section 174, any Magistrate so empowered may hold an inquiry into the
cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so, he
shall have all the powers in conducting it which he would have in holding an inquiry into an offence.
(a) any person dies or disappears, or
(b) rape is alleged to have been committed on any woman,
while such person or woman is in the custody of the police or in any other custody authorised by the
Magistrate or the Court, under this Code in addition to the inquiry or investigation held by the police, an inquiry
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view of the provisions of law, it was obligatory on the part of the State to
ensure that an inquiry is conducted in respect of every death that takes place
37. The need for an inquiry into every death in custody was also
emphasized by the learned Amicus, who submitted that there was
discrepancy of data between deaths reported in prisons as per the NCRB and
deaths reported in prisons as derived from the data available with the NHRC.
It was submitted by the learned Amicus that this discrepancy needs to be
reconciled and adequate reasons must be provided for every death that takes
place in a prison.
Suggestions of the learned Amicus
38. Taking all these submissions into consideration, the learned Amicus
suggested that we issue, amongst others, the following directions:
shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local
jurisdiction the offence has been committed.
(2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in
any manner hereinafter prescribed according to the circumstances of the case.
(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person
who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to
be disinterred and examined.
(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the
relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the
(5) The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an
inquiry or investigation, as the case may be, under sub-section (1A) shall, within twenty-four hours of the death of
a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified
medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be
recorded in writing.
Explanation.—In this section, the expression “relative” means parents, children, brothers, sisters and spouse.
W.P. (C) No. 406/2013 etc. Page 22 of 43
1. The treatment of prisoners should be more humane and the
dehumanizing effect of imprisonment should be reduced.
2. The involvement of NGOs should be encouraged especially with
3. Counseling should be encouraged and the State Governments should
engage the services of psychologists or social counselors who could
visit the prisons on a daily basis to counsel prisoners, particularly
first-time offenders. The learned Amicus acknowledged the
contribution made by the Inspector General (Prisons) Karnataka for
4. A prisoner should be enabled to communicate with family members
and to the extent possible, the meeting time available to a prisoner
should be extended. If possible, a prisoner may also be allowed to
speak to his family on telephone.
5. A prisoner should have access to legal services including legal aid.
In this context the learned Amicus referred to a report prepared under
the auspices of the Bihar State Legal Services Authority by Ms.
Smita Chakraburtty on her experiences in prisons in Bihar which
suggests that many inmates do not voluntarily approach the legal aid
clinics and so they must be encouraged to do so.
6. A status report prepared by the Commonwealth Human Rights
Initiative on the implementation of the legal aid schemes in
Rajasthan particularly the NALSA (Free and Competent Legal
Services) Regulations, 2010 and the NALSA (Legal Aid Clinics)
Regulations, 2011 suggests that the basic mechanism to ensure legal
representation and advice is absent in a majority of sub-jails.
7. There should be an independent mechanism for entertaining the
grievances of inmates without putting the inmates into trouble with
the prison staff or other inmates. A reference in this regard was made
to Rule 56 and Rule 57 of the Mandela Rules.
8. Over-crowding in jails should be reduced and that might help in
reducing the possibility of suicides by the prisoners. It is also
suggested by the learned Amicus that the concept of open jails (of
which there are 54 as mentioned in the statistics provided by the
NCRB) should be encouraged.
9. The learned Amicus laid stress on providing basic medical facilities
to the inmates which could even be in the form of a primary health
centre. In this regard the learned Amicus referred to the discussions
that he had with the Director-General of Police (Prisons) Karnataka,
the Welfare Officer in Tihar, the former Inspector General of Police
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(Prisons) West Bengal and the report of Ms. Smita Chakraburtty
which suggests that medical facilities in most prisons do not meet
the minimum requirements of medical care.
10.The learned Amicus laid great stress on the constitution of a Board of
Visitors comprising official and non-official visitors. The learned
Amicus drew attention to an advisory issued on 18th February, 2011
by the Central Government for the appointment and working of nonofficial
visitors for prisons.
11. The learned Amicus endorsed the suggestion of conducting
performance audits for prisons across the country.
39. According to the learned Amicus, if these (and other) directions are
given to the State Governments, prison reforms will become far more
meaningful and the level of unnatural deaths will decrease.
Compensation for unnatural deaths
40. The issue of compensation for unnatural deaths in custody is no
longer res integra.
41. One of the earliest cases where this Court granted compensation in a
petition under Article 32 of the Constitution is Rudul Sah v. State of Bihar.
That case was not one of a custodial death but was a case of illegal detention
even after acquittal in a full dress trial. This Court held that the petitioner
was entitled to compensation for the illegal detention and it rejected the stale
and sterile objection of the State Government that the petitioner may if so
advised file a suit to recover damages. This Court took the view that the
(1983) 4 SCC 141
W.P. (C) No. 406/2013 etc. Page 24 of 43
refusal to pass an order of compensation would be doing mere lip service to
the fundamental right of liberty of the petitioner under Article 21 of the
Constitution which the State Government had so grossly violated. This
Court observed that “if civilization is not to perish in this country as it has
perished in some others too well known to suffer mention, it is necessary to
educate ourselves into accepting that, respect for the rights of individuals is
the true bastion of democracy.”
42. A little later, this Court dealt with Sebastian M. Hongray v. Union of
India5 which concerned itself with the disappearance of some persons while
in custody. This Court was convinced that enabling the respondents to trace
or locate the two missing persons at such a late stage would be to shut its
eyes to reality and to pursue a mirage. It appeared to this Court that the two
missing persons had actually met a tragic end in an encounter amounting to
an unnatural death. This Court ordered the registration of an offence and an
investigation and also directed payment of compensation to the next of kin.
43. Nilabati Behera v. State of Orissa6 was a case where a person who
was taken into police custody for investigation of a theft, was found dead
near a railway track the next day. On the basis of injuries and handcuffs on
his wrists, this Court concluded that it was a custodial death and
(1984) 3 SCC 82
(1993) 2 SCC 746
W.P. (C) No. 406/2013 etc. Page 25 of 43
compensation was awarded under Article 32 of the Constitution. It was held
that a public law remedy was certainly available to claim compensation for
the contravention of human rights and fundamental rights which are
protected as a guarantee by our Constitution. A reference was also made to
Article 9(5) of the International Covenant on Civil and Political Rights, 1966
which reads: “Anyone who has been the victim of unlawful arrest or
detention shall have an enforceable right to compensation.”
44. An unnatural death in judicial custody where one person was killed by
a co-prisoner was the subject matter of discussion in Kewal Pati v. State of
It was held that as a consequence of imprisonment, a prisoner does
not cease to have constitutional rights, except to the extent he or she has
been deprived of them in accordance with law. Therefore, even a prisoner is
entitled to protection and if he is killed while in prison, it results in a
deprivation of his life contrary to the law, for which the next of kin are
entitled to compensation.
45. In D.K.Basu v. State of West Bengal8
this Court recognized that at the
time of ratification of the International Covenant on Civil and Political
Rights, 1966 in 1979, the Government of India made a specific reservation
to the effect that the Indian legal system does not recognize a right to
(1995) 3 SCC 600
(1997) 1 SCC 416
W.P. (C) No. 406/2013 etc. Page 26 of 43
compensation for victims of unlawful arrest or detention and only became a
party to the covenant, subject to this reservation. It was noted however, that
the reservation has lost its relevance in view of the law laid down by this
Court in several cases wherein compensation has been awarded for the
infringement of a fundamental right of a citizen. It was also noted that while
there is no express provision in the Constitution for grant of compensation,
this right has been judicially evolved in cases of established unconstitutional
deprivation of personal liberty or life. This Court summed up the law in the
“Thus, to sum up, it is now a well-accepted proposition in most of the
jurisdictions, that monetary or pecuniary compensation is an
appropriate and indeed an effective and sometimes perhaps the only
suitable remedy for redressal of the established infringement of the
fundamental right to life of a citizen by the public servants and the
State is vicariously liable for their acts. The claim of the citizen is
based on the principle of strict liability to which the defence of
sovereign immunity is not available and the citizen must receive the
amount of compensation from the State, which shall have the right to
be indemnified by the wrongdoer. In the assessment of compensation,
the emphasis has to be on the compensatory and not on punitive
element. The objective is to apply balm to the wounds and not to
punish the transgressor or the offender, as awarding appropriate
punishment for the offence (irrespective of compensation) must be
left to the criminal courts in which the offender is prosecuted, which
the State, in law, is duty bound to do. The award of compensation in
the public law jurisdiction is also without prejudice to any other
action like civil suit for damages which is lawfully available to the
victim or the heirs of the deceased victim with respect to the same
matter for the tortious act committed by the functionaries of the State.
The quantum of compensation will, of course, depend upon the
peculiar facts of each case and no strait-jacket formula can be
evolved in that behalf. The relief to redress the wrong for the
W.P. (C) No. 406/2013 etc. Page 27 of 43
established invasion of the fundamental rights of the citizen, under
the public law jurisdiction is, thus, in addition to the traditional
remedies and not in derogation of them. The amount of compensation
as awarded by the Court and paid by the State to redress the wrong
done, may in a given case, be adjusted against any amount which
may be awarded to the claimant by way of damages in a civil suit.”
46. Ajab Singh v. State of U.P.9
, Murti Devi v. State of Delhi10 and more
recently Rohtash Kumar v. State of Haryana11
illustrate that custodial
death is a clear violation of the prisoner’s rights under Article 21 of the
Constitution and relief could be moulded by granting compensation to the
next of kin of the deceased.
47. In addition to the above decisions and several others rendered by this
Court, almost every High Court in the country has, at one time or another,
also granted compensation for the unnatural death of a person in custody,
whether an undertrial or a convict. A few such illustrations may be noted:
a. Nina Rajan Pillai & Ors. v. Union of India.
The husband of the petitioner died in judicial custody due to inadequate
medical treatment given by the jail authorities. The Lt. Governor of
Delhi even appointed a Commission of Inquiry headed by Justice Leila
Seth, a former Chief Justice of the Himachal Pradesh High Court to
(2000) 3 SCC 521
10 (1998) 9 SCC 604
(2013) 14 SCC 290
12 180 (2011) DLT 104
W.P. (C) No. 406/2013 etc. Page 28 of 43
inquire into the circumstances that led to the death of the petitioner’s
husband. The Delhi High Court awarded compensation for the unnatural
death in custody.
b. Kewalbai v. The State of Maharashtra.
The victim was shot dead by a constable while in custody. The Bombay
High Court awarded compensation for the unnatural death in custody.
c. Bheduki Buragohain v. State of Assam.
The undertrial victim died in judicial custody under suspicious
circumstances. The post mortem report indicated that the cause of death
was asphyxia as a result of strangulation and ante mortem injuries by
blunt weapons. The Gauhati High Court awarded compensation for the
unnatural death in custody.
d. Madhuben Adesara v. State of Gujarat.
The deceased was brutally tortured by police officers while in custody
and succumbed to his injuries during treatment. The post-mortem report
revealed that the victim had multiple injury marks which were ante
mortem in nature. The Gujarat High Court awarded compensation for the
unnatural death in custody.
13 2013 (3) BomCR (Cri) 601
14 2013 (2) GLT 370
15 R/SCR.A./536/2010 (unreported)
W.P. (C) No. 406/2013 etc. Page 29 of 43
e. Banalata Dash v. State of Orissa & Ors.
The deceased was found hanging from a tree with his hands behind his
back, tied at the wrist with a towel. Since the victim was in the custody
of the prison authorities, compensation was awarded by the Orissa High
Court for the unnatural death in custody.
f. Amandeep v. State of Punjab & Anr.
The deceased was assaulted by a co-prisoner and succumbed to injuries
in the hospital. Due to the unnatural death in custody, the Punjab &
Haryana High Court awarded compensation to the next of kin of the
g. Tmt. Rohini Lingam v. State.
The victim was murdered by his enemies while in prison. Due to the
unnatural death in custody the Madras High Court awarded compensation
to his next of kin.
h. Sabu & Anr. v. State of Kerala & Ors.
The victim was tortured in a police station and succumbed to his injuries.
In view of the unnatural death in custody the Kerala High Court awarded
16 AIR 2012 Ori 97
17 (2013) 169 PLR 191
18 (2008) 5 MLJ 822
19 CRP No. 1170 /2015
W.P. (C) No. 406/2013 etc. Page 30 of 43
interim compensation to the next of kin of the deceased until the criminal
trial against the concerned police officers was concluded.
i. Ravindra Nath Awasthi v. State of U.P.20
The victim was an advocate held guilty of contempt of court. While he
was undergoing his sentence, he was severely beaten up by the prison
authorities and succumbed to his injuries in hospital. Due to the
unnatural death in custody, the Allahabad High Court directed payment
of compensation to the next of kin of the deceased.
j. Mst. Madina v. State of Rajasthan & Ors.
The victim died in police custody on account of the use of third degree
methods. Due to the unnatural death in custody, compensation was
awarded by the Rajasthan High Court to the next of kin of the deceased.
k. Dukhuram v. State of Chhattisgarh & Ors.
The deceased was taken from the police station in order to recover stolen
articles alleged to have been hidden by him at a secret place. He was
brought to a pond and compelled to dive into the pond. At that time he
was handcuffed and in chains. Subsequently, the dead body of the
deceased was found floating in the pond. In view of the unnatural death
20 2009 2 AWC 2090 (All)
21 2000 Cri LJ 4484
22 2011 (3) MPHT 81
W.P. (C) No. 406/2013 etc. Page 31 of 43
while the deceased was in the custody of police officers, the Chhattisgarh
High Court awarded compensation.
l. Santosh Kumari v. State of H.P. & Ors.
The victim died while he was in police custody and it was found that he
had injuries on his head, shoulders, eyes, knees and private parts. He
died in hospital as he was not given medical assistance in time. In view
of the unnatural death while in custody, the Himachal Pradesh High
Court awarded compensation to the next of kin of the deceased.
m. State of Jammu & Kashmir v. Sajad Ahmad Dar.
The victim died due to cardio pulmonary arrest while detained in the
District Jail under the Jammu and Kashmir Public Safety Act, 1978. It
was held that death was due to carelessness, non-seriousness and
negligence in not extending medical treatment. In view of the unnatural
death in custody the Jammu & Kashmir High Court awarded the
compensation to the next of kin of the deceased.
n. Mrs. Meena Singh v. State of Bihar.
The victim was attacked and killed by co-prisoners by the use of chhura,
iron rods and belts etc. The next of kin of the deceased were awarded
23 2008 ACJ 1684
24 LPAHC No. 36/2015
25 2001 Cri LJ 3573
W.P. (C) No. 406/2013 etc. Page 32 of 43
compensation by the Patna High Court for the unnatural death of the
victim in custody.
o. Lawyers for Justice (Non-Government Organization) v. State of
The victim was facing trial for offences under Section 302 of the Indian
Penal Code. While he was undergoing treatment in a hospital he was
shot dead by an unknown person. In view of the unnatural death while in
custody the Madhya Pradesh High Court awarded compensation to the
next of kin of the victim.
48. There are several such cases – documented and undocumented – all
over the country but in spite of repeated decisions delivered by this Court
and perhaps every High Court there seems to be no let up in custodial
deaths. This is not a sad but a tragic state of affairs indicating the apparent
disdain of the State to the life and liberty of individuals, particularly those in
custody. The time to remedy the situation is long past and yet, there seems to
be no will and therefore no solution in sight.
The need to reform
49. The factual material referred to above is an indication that steps are
being taken in some form or the other by the Central Government and
26 AIR 2015 MP 212
W.P. (C) No. 406/2013 etc. Page 33 of 43
hopefully by the State Governments to ameliorate the conditions of prisoners
across the country and thereby reduce the number of unnatural deaths.
These steps give an impression that there is nothing to be seriously worried
about. However, the statistics provided by the NCRB reflect the ground
reality and dispel that impression. It is time for the State to go beyond
projections through circulars and advisories and actually come to grips with
reality as it exists in a very large number of prisons. What is practised in our
prisons is the theory of retribution and deterrence and the ground situation
emphasizes this, while our criminal justice system believes in reformation
and rehabilitation and that is why handcuffing and solitary confinement are
prohibited. It is this ‘rejection’ of the philosophy of our criminal justice
system that leads to violence in prisons and eventually unnatural deaths.
50. This Court has time and again emphasized the importance of Article
21 of the Constitution and the right to a life of dignity. There must be a
genuine desire to ensure that the guarantee to a life of dignity is provided to
the extent possible even in prisons, otherwise Article 21 of the Constitution
will remain a dead letter. It must be appreciated by the State that the
common person does not violate the law for no reason at all. It is
circumstances that lead to a situation where there is a violation of law. On
many occasions, such a violation may be of a trivial nature or may be a one-
W.P. (C) No. 406/2013 etc. Page 34 of 43
time aberration and, in such circumstances, the offender has to be treated
with some degree of humanity. At least in such cases, retribution and
deterrence cannot be an answer to the offence and the offender. Unless the
State changes this mindset and takes steps to give meaning to life and liberty
of every prisoner, prison reforms can never be effective or long lasting.
51. The issue of unnatural deaths in prisons was debated and discussed
before us in great detail by the learned Amicus, the learned Attorney General
and learned counsel for the National Forum. All of them have painstingly
taken us through a plethora of documents but, as mentioned above, the
existence of volumes of documents relating to unnatural deaths in prisons
does not necessarily resolve the problem that we are confronted with and
which was brought to our notice by Chief Justice Lahoti.
52. However, we do hope that the highlighting of this issue will bring
about awareness in the mind and heart of the powers that be and
consequential reforms in prisons which may ultimately reduce, if not
eliminate, the number of unnatural deaths in prisons and also improve the
conditions of prisoners all over the country.
The need to compensate
53. The case law indicates that over the last several decades this Court
and almost every High Court has relied on Article 21 of the Constitution and
W.P. (C) No. 406/2013 etc. Page 35 of 43
thought it appropriate to compensate the next of kin for an unnatural
custodial death. The constitutional courts can go on delivering judgment
after judgment on this issue and award compensation, but unless the State
realizes that custodial death is itself a crime and monetary compensation is
not necessarily the only appropriate relief that can be granted to the next of
kin of the deceased, such unnatural deaths will continue unabated.
Therefore, what is needed is a review of all prisons with a humanitarian
54. Over the last several years, there have been discussions on the rights
of victims and one of the rights of a victim of crime is to obtain
compensation. Schemes for victim compensation have been framed by
almost every State and that is a wholesome development. But it is important
for the Central Government and the State Governments to realize that
persons who suffer an unnatural death in a prison are also victims –
sometimes of a crime and sometimes of negligence and apathy or both.
There is no reason at all to exclude their next of kin from receiving
compensation only because the victim of an unnatural death is a criminal.
Human rights are not dependent on the status of a person but are universal in
nature. Once the issue is looked at from this perspective, it will be
appreciated that merely because a person is accused of a crime or is the
W.P. (C) No. 406/2013 etc. Page 36 of 43
perpetrator of a crime and in prison custody, that person could nevertheless
be a victim of an unnatural death. Hence the need to compensate the next of
Custodial death of Children
55. One of the issues not touched upon by the learned Amicus or by the
National Forum relates to the custodial death of children in child care
institutions under the Juvenile Justice (Care and Protection of Children) Act,
2000 as well as the Juvenile Justice (Care and Protection of Children) Act,
2015. There does not appear to be any study carried out in this regard and it
is rather unfortunate that the Central Government and the State Governments
are oblivious to the possibility of death of children in custody in child care
institutions. This is distressing. The pain and anguish of the next of kin of
children who pass away in custody is not less, but more than the pain and
anguish of the next of kin of any prisoner who suffers an unnatural death in
custody. It seems that apart from being ‘voiceless’, such children are also
56. There is no documentation on the number of unnatural deaths (if any)
of children in child care institutions and this should now be on the agenda of
the Central Government and the State Governments (particularly the
Department concerned with the welfare of children) with far greater concern
W.P. (C) No. 406/2013 etc. Page 37 of 43
than has been shown so far. The unnatural death of any child in need of
care and protection or in conflict with law and in a child care institution
needs attention since it is these voiceless children who need to be heard. It is
time that unnatural deaths of children in child care institutions are seriously
looked into by all concerned if we are to provide the children of our country
with a better future.
57. We are of the view that on the facts and in the circumstances before
us, the suggestions put forward by the learned Amicus and the learned
counsel appearing for the National Forum deserve acceptance and, therefore,
we issue the following directions:
1. The Secretary General of this Court will transmit a copy
of this decision to the Registrar General of every High Court
within one week with a request to the Registrar General to place
it before the Chief Justice of the High Court. We request the
Chief Justice of the High Court to register a suo motu public
interest petition with a view to identifying the next of kin of the
prisoners who have admittedly died an unnatural death as
revealed by the NCRB during the period between 2012 and
2015 and even thereafter, and award suitable compensation,
W.P. (C) No. 406/2013 etc. Page 38 of 43
unless adequate compensation has already been awarded.
2. The Union of India through the Ministry of Home Affairs
will ensure circulation within one month and in any event by
31st October, 2017 of (i) the Model Prison Manual, (ii) the
monograph prepared by the NHRC entitled “Suicide in Prison –
prevention strategy and implication from human rights and
legal points of view”, (iii) the communications sent by the
NHRC referred to above, (iv) the compendium of advisories
issued by the Ministry of Home Affairs to the State
Governments, (v) the Nelson Mandela Rules and (vi) the
Guidelines on Investigating Deaths in Custody issued by the
International Committee of the Red Cross to the Director
General or Inspector General of Police (as the case may be) in
charge of prisons in every State and Union Territory. All
efforts should be made, as suggested by the NHRC and others,
to reduce and possibly eliminate unnatural deaths in prisons and
to document each and every death in prisons – both natural and
3. The Union of India through the Ministry of Home Affairs
will direct the NCRB to explain and clarify the distinction
W.P. (C) No. 406/2013 etc. Page 39 of 43
between unnatural and natural deaths in prisons as indicated on
the website of the NCRB and in its Annual Reports and also
explain the sub-categorization ‘others’ within the category of
unnatural deaths. The NCRB should also be required to subcategorize
natural deaths. The sub-categorization and
clarification should be complied with by 31st October, 2017.
4. The State Governments should, in conjunction with the
State Legal Services Authority (SLSA), the National and State
Police Academy and the Bureau of Police Research and
Development conduct training and sensitization programmes
for senior police officials of all prisons on their functions,
duties and responsibilities as also the rights and duties of
prisoners. A copy of this order be sent by the Registry of this
Court to the Member-Secretary of each SLSA to follow-up and
5. The necessity of having counselors and support persons
in prisons cannot be over-emphasized. Their services can be
utilized to counsel and advice prisoners who might be facing
some crisis situation or might have some violent or suicidal
tendencies. The State Governments are directed to appoint
W.P. (C) No. 406/2013 etc. Page 40 of 43
counselors and support persons for counselling prisoners,
particularly first-time offenders. In this regard, the services of
recognized NGOs can be taken and encouraged.
6. While visits to prison by the family of a prisoner should
be encouraged, it would be worthwhile to consider extending
the time or frequency of meetings and also explore the
possibility of using phones and video conferencing for
communications not only between a prisoner and family
members of that prisoner, but also between a prisoner and the
lawyer, whether appointed through the State Legal Services
Authority or otherwise.
7. The State Legal Services Authorities (SLSAs) should
urgently conduct a study on the lines conducted by the Bihar
State Legal Services Authority in Bihar and the Commonwealth
Human Rights Initiative in Rajasthan in respect of the overall
conditions in prisons in the State and the facilities available.
The study should also include a performance audit of the
prisons, as has been done by the CAG. The SLSAs should also
assess the effect and impact of various schemes framed by
NALSA relating to prisoners. We request the Chief Justice of
W.P. (C) No. 406/2013 etc. Page 41 of 43
every High Court, in the capacity of Patron-in-Chief of the
State Legal Services Authority, to take up this initiative and, if
necessary, set up a Committee headed preferably by the
Executive Chairperson of the State Legal Services Authority to
implement the directions given above.
8. Providing medical assistance and facilities to inmates in
prisons needs no reaffirmation. The right to health is
undoubtedly a human right and all State Governments should
concentrate on making this a reality for all, including prisoners.
The experiences in Karnataka, West Bengal and Delhi to the
effect that medical facilities in prisons do not meet minimum
standards of care is an indication that the human right to health
is not given adequate importance in prisons and that may also
be one of the causes of unnatural deaths in prisons. The State
Governments are directed to study the availability of medical
assistance to prisoners and take remedial steps wherever
9. The constitution of a Board of Visitors which includes
non-official visitors is of considerable importance so that
eminent members of society can participate in initiating reforms
W.P. (C) No. 406/2013 etc. Page 42 of 43
in prisons and in the rehabilitation of prisoners. Merely
changing the nomenclature of prisons to ‘Correction Homes’
will not resolve the problem. Some proactive steps are required
to be taken by eminent members of society who should be
included in the Board of Visitors. The State Governments are
directed to constitute an appropriate Board of Visitors in terms
of Chapter XXIX of the Model Prison Manual indicating their
duties and responsibilities. This exercise should be completed
by 30th November, 2017.
10. The suggestion given by the learned Amicus of
encouraging the establishment of ‘open jails’ or ‘open prisons’
is certainly worth considering. It was brought to our notice that
the experiment in Shimla (Himachal Pradesh) and the semiopen
prison in Delhi are extremely successful and need to be
carefully studied. Perhaps there might be equally successful
experiments carried out in other States as well and, if so, they
require to be documented, studied and emulated.
11. The Ministry of Women & Child Development of the
Government of India which is concerned with the
implementation of Juvenile Justice (Care and Protection of
W.P. (C) No. 406/2013 etc. Page 43 of 43
Children) Act, 2015 is directed to discuss with the concerned
officers of the State Governments and formulate procedures for
tabulating the number of children (if any) who suffer an
unnatural death in child care institutions where they are kept in
custody either because they are in conflict with law or because
they need care and protection. Necessary steps should be taken
in this regard by 31st December, 2017.
58. We expect the above directions to be faithfully implemented by the
Union of India and State Governments. In the event of any difficulty in the
implementation of the above directions, the Bench hearing the suo motu
public interest litigation in the High Court in term of our first direction is at
liberty to consider those difficulties and pass necessary orders and
59. List for follow-up in December, 2017.
(Madan B. Lokur)
September 15, 2017