The action of jail authorities of Model Jail, Burail, Chandigarh in keeping a Pakistani national in solitary confinement was today challenged in the Punjab & Haryana High Court by a human rights organisation, Lawyers For Human Rights International through a Habeas Corpus Petition filed in Public Interest.
In the Petition, Tejinder Singh Sudan, President of Chandigarh Unit of LFHRI have alleged that Abid Mehmood alias Nihal Chohan was lodged in the jail on March 9, 2003 from that day, he has been lodged in solitary confinement, called “20 Chakki” measuring 10 X 12 ft. for twenty four hours without any break and he is deprived of fresh air and light. While other undertrials are allowed to come out in the open space for few hours, he is not allowed even that liberty. He is also not allowed to talk with any inmate of the jail. Right of interview or taking assistance of any Lawyer has also been denied to him. No legal aid counsel was made available to him by the Legal Services Authority, U.T. Chandigarh for three months of his detention in the jail. fortunately, now he is able to find a counsel of his choice on May 30, 2003, who has agreed to provide him effective legal aid on pro bono basis. But confined for twenty four hours in a small cell of 10 X 12 ft. without talking with anybody and without any reading material or source of entertainment or making prayers according to his religious belief, the life of the detenue has become miserable. It is further stated that he is not allowed to take cold drinking water from the water cooler which is affixed outside the barrack, while all other undertrials and prisoners have the facility to take cold drinking water. He is given a small bucket of normal water and this is the only supply of water he gets for the whole of the day. The cell where he is lodged does not have any place for answering nature’s call and he is being kept in inhuman conditions in the jail. He is not given any newspaper or reading material for time pass, nor he is allowed to watch television or radio which other prisoners enjoy in the jail. He is also not given any clean clothes for offering prayers in the jail premises which has hurt his religious feelings. He is also not given proper medical treatment in the jail. His real health problem is that the muscles of his different body parts have been badly damaged due to police torture and at times his body parts become numb and his Blood Pressure also gets very low resultantly causing unbearable pain and suffering. At that time, he is not provided with any medical care and attention and he become unconscious and regain consciousness only after two-three days when he feels great weakness. He also complains that blood is passing alongwith his urine and that gives extreme pain in his genitals. On account of the inhuman treatment given to him in the jail, his mental state of health has also deteriorated because of the continous solitary confinment and there is no source of time pass in the cell.
The petition was today taken up by a division bench comprising of Adarsh Kumar Goel and S.S.Grewal,JJ and notice of motion has been issued to the Inspector General of Prisons U.T.Chandigarh and the Superintendent of Model Jail, Burail, U.T. Chandigarh for July 8, 2003.
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For COPY OF THE PETITION SEE BELOW:
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
HABEAS CORPUS PETITION
Extra-Ordinary Criminal Writ Jurisdiction
Criminal Writ Petition
No._________/2003
CHANDIGARH
PUBLIC INTEREST LITIGATION
Lawyers For Human Rights International(Regd.)Chamber No.122,District Courts,
Sector 17, Chandigarh.Through its Chandigarh District President, Sh.Tejinder
Singh Sudan.
…Petitioner
Versus
1.Inspector General of Prisons,U.T.Chandigarh,Estate Office, Sec. 17,
Chandigarh.
2.Superintendent, Model Jail,Burail,U.T.Chandigarh.
….Respondents
CRIMINAL WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA PRAYING THEREIN FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS DIRECTING THE RESPONDENT TO RELEASE A PAKISTANI UNDERTRIAL ABID MEHMOOD, SON OF TALIB MEHMOOD FROM SOLITARY CONFINEMENT IN “20 CHAKKI”; A N D FOR APPROPRIATE DIRECTIONS TO THE RESPONDENTS TO PROVIDE BASIC AMENITIES TO THE ABOVE NAMED UNDERTRIAL WHICH ARE PROVIDED TO ALL OTHER UNDERTRIALS IN THE MODEL JAIL, BURAIL,U.T.CHANDIGARH; A N D FOR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION WHICH THIS HON’BLE HIGH COURT MAY DEEM FIT AND PROPER KEEPING IN VIEW THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE.
RESPECTFULLY SHOWETH;-
1. That the Petitioner is a registered non-governmental human rights organisation striving to promote awareness about human rights among the citizens and protect the human rights of the people by providing free legal aid to the poor and indigent persons. The organisation has been actively engaged in
educating general public about their human rights. The Petitioners’ members during the course of their professional duty witnessed the plight of a Pakistani national Abid Mehmood who was produced in the Court of Judicial Magistrate, Chandigarh on May 30, 2003 and pleading with the Court for humane treatment to him in judicial custody. After interviewing him with the Court’s premission, the organisation decided to invoke the extra-ordinary criminal writ jurisdiction of this High Court seeking appropriate directions to the jail Superintendent,Model Jail, Burail,U.T. Chandigarh and the present Petition is being filed on his behalf in the larger public interest to ensure humane treatment of all the prisoners lodged in the jail. The executive body meeting of the organisation in its meeting held on May 31, 2003 unanimously resolved to file the present petition and authorised its Chandigarh Unit District President,Tejinder Singh Sudan to file, sign and argue the said petition on its behalf. The petition is in representative capacity in the nature of a Public Interest Litigation as such the required leave may be granted.
2. That Abid Mehmood, alias Nihal Chauhan, son of Dr.Talib Mehmood, a Pakistani national was arrested by Chandigarh Police On February 23, 2003 and was remanded to judicial custody by the Court of Judicial Magistrate, Chandigarh. He was shifted to Model Jail, Burail, U.T. Chandigarh on 9th March, 2003 and he is at present lodged there. He is being produced in the court after every fourteen days for extension of judicial remand.
3. That when the detenue was brought for the extension of judicial remand in the Court of Judicial Magistrate First Class, Chandigarh on May 30, 2003, he expressed his desire to engage a counsel of his choice and the said counsel was called and he marked his presence and it was then that he described the tale of his woes which he is suffering in the jail due to the discriminatory action of the respondents. The following facts are based on the statement of the detenue given to the members of the Petitioner-organisation.
4. That the detenue- Abid Mehmood is a 23 years old computer graduate from a Pakistani University.He knows only Urdu or English. He is all alone in India and there is nobody to take care of him and he has no relative or next friend in India to look after him. Due to inhuman treatment metted to him, he is continously living under depression and tears are his best companion within the four corners of his solitary cell.
5. That from the day one of his shifting into the jail, the detenue has been lodged in solitary confinement, called in jail language as “20 Chakki” measuring 10 X 12 ft. for twenty four hours without any break and he is deprived of fresh air and light. While other undertrials are allowed to come out in the open space for few hours, he is not allowed even that liberty. He is also not allowed to talk with any inmate of the jail. Right of interview or taking assistance of any Lawyer has also been denied to him. No
legal aid counsel was made available to him by the Legal Services Authority, U.T. Chandigarh for three months of his detention in the jail. He is fortunate enough that after three months, he is able to find a counsel of his choice on May 30, 2003, who has agreed to provide him effective legal aid on pro bono basis. But confined for twenty four hours in a small cell of 10 X 12 ft. without talking with anybody and without any reading material or source of entertainment or making prayers according to his religious belief, the life of the detenue has become miserable.
6. That he is not allowed to take cold drinking water from the water cooler which is affixed outside the barrack, while all other undertrials and prisoners have the facility to take cold drinking water. He is given a small bucket of normal water and this is the only supply of water he gets for the whole of the day. The cell where he is lodged does not have any place for answering nature’s call and he is being kept in inhuman conditions in the jail. He is not given any newspaper or reading material for time pass, nor he is
allowed to watch television or radio which other prisoners enjoy in the jail. He is also not given any clean clothes for offering prayers in the jail premises which has hurt his religious feelings.
7. That the detenue is not given proper medical treatment in the jail. He is given medicines by the Medical Superintendent of the jail every day for the serious medical problems he is suffering from. The medicines given to him contain high dose of intoxication. Norfloxicin, DolomEd MR, Alprex and Triptumer are the medicines which are being given to him. These medicines are not related to the diseases of the detenue and these medicines are given only to keep the detenue in sleep. But his real health problem is that the muscles of his different body parts have been badly damaged due to police torture and at times his body parts become numb and his Blood Pressure also gets very low resultantly causing unbearable pain and suffering. At that time, he is not provided with any medical care and attention and he become unconscious and regain consciousness only after two-three days when he feels great weakness. He also complains that blood is passing alongwith his urine and that gives extreme pain in his genitals. Due to inhuman treatment in the jail, his mental state of health has also deteriorated due to continous solitary confinment and no source of time pass in the cell.
8. That the Petitioners noticing the inhuman treatment subjected by the respondent no.2 to the detenue are at pains to understand as to why the detenue has been deprived of the basic amenities like cold water, newspapers or to watch television or hear radio while other undertrials enjoy these amenities. It is also not understandable as to why the detenue has been confined to solitary confinement when he is not a security risk or has not committed any indiscipline in the jail which could invite punishment of solitary confinement. As per the investigations by the Petitioner-Organisation, the denial of the basic amenities to the detenue and keeping him in solitary confinement for twenty four hours is arbitrary, illegal and unjustified, which is a blatant violation of Article 21 of the Constitution of India. Simply because he is a foreign national and an accused in a case under Section 3,5,7 of Official Secrets Act besides some sections of Indian Penal Code, the fundamental right to equality before law cannot be denied to him under any circumstances. The conditions contained in the provisions of the Punjab jail manual with regard to the denial of some amenities to an undertrial are not at all applicable in the case of the present detenue. Therefore, it is a clear case where the jail authorities are subjecting an undertrial to a degrading, inhuman and unjust treatment without justifiable cause, which has infringed the fundamental right to life and liberty of the detenue granted under the Constitution of India as well as Universal Declaration of Human Rights declared by the United Nations General Assembly in 1948.
9. That the Petitioners are entitled to seek a Writ of Habeas Corpus from this Hon’ble High Court, inter-alia on the following grounds:-
(i) Because the detenue Abid Mehmood has been deprived of the minimum basic amenity of water and free air and light without any justifiable cause. Since the day of his coming to the prison, he is not given adequate water, clean clothes, nor allowed to offer prayers in his cell.
(ii) He has been confined in 24 hour solitary confinement in “20 CHAKKI” and nobody is allowed to meet him. He has to answer nature’s call in the same cell and he is not allowed to even drink cold water. Whereas all other undertrials are allowed to go to a common public toilet but he is denied this right. The cell in which he urinates and answer nature’s call is too small to even sleep, and there is great smell of human excreta in the cell.
(iii) Due to his incapacity to engage a lawyer of his choice, he has been denied legal assistance while in judicial custody. He was not provided with any lawyer from the Legal Services Authority, Chandigarh for three months and he is unable to know the exact charges leveled against him by the police.
10. That the scope of habeas corpus petition has been expanded by the Hon’ble Supreme Court of India in a catena of judgments. In the landmark judgment on prison reforms titled, “Sunil Batra vs Superintendent, Tihar Jail,Delhi(1980-(003)-SCC-0488-SC) ” Justice Krishna Iyer, speaking for the bench, held in para 2 that——“The constitutional imperative which informs our perspective in this habeas corpus proceeding must first be set out. The rule of law meets with its Waterloo when the State’s minions become law-breakers and so the court as the sentinel of the nation and the voice of the Constitution, runs down the violators with its writ and secures compliance with human rights even behind
iron bars and by prison warders. This case is at once a symptom, a symbol and a signpost vis-a-vis human rights in prison situations. When prison trauma prevails, prison justice must invigilate and hence we broaden our ‘habeas’ jurisdiction. Jurisprudence cannot slumber when the very campuses of punitive
justice witness torture. …’Prisons are built with stones of law’ and so it behoves the court to insist that, in the eye of law, prisoners are persons not animals, and punish the deviant ‘guardians’ of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials ‘dressed in a little, brief authority’, when Part III is invoked by a convict. For when a prisoner is traumatized the Constitution suffers a shock. And when the court takes cognizances of such violence and violation, it does, like the Hound of Heaven, ‘But with unhurrying chase, and unperturbed pace, Deliberate speed and Majestic instancy’ follow the official offender and frown down the outlaw adventure.”
11. That in “Kishore Singh Ravinder Dev and others V. State Of Rajasthan, AIR 1981-SC-0625”, the apex court held that ——-
“The sombre scenario unfurled by this habeas corpus proceeding begins with a telegram on behalf of the prisoners to one of us, complaining, mamu brevi, of insufferable, illegal solitary confinement in Jaipur Central Jail. This grievance of the prisoners in ‘twisted gyves’ triggered off judicial action with telegraphic speed, as it were, and the Bench directed that the prisoners be forthwith liberated from solitary confinement and freed from fetters in terms of the law laid down by this Court in Sunil Batra (I) case (Sunil Batra (I) v. Delhi Administration, (1978) 4 SCC 494.
The court had ordered on earlier date that, If the petitioner is in solitary confinement, he will be released from solitary confinement forthwith in the light of the decision of this Court in Sunil Batra (I) case (Sunil Batra (I) v. Delhi Administration, (1978) 4 SCC 494 : 1979 SCC (Cri) 155). The Superintendent of the Central Jail concerned will report to this Court on October 21, 1980 the number of cases with particulars of persons in solitary confinement in that prison. …we feel it was right that we took quick action to liberate the three prisoners from their callously lonely, barbarously fettered solitary custody. Justice must be instant and it has been wisely said : “Caution, caution, sir ! It is nothing but the word of cowardice !” (John Brown : quoted by Bruce Catton, Life, September 12, 1955) Where human bondage and personal torture are involved, to wait is to defeat. In personal liberty jurisprudence, this Court has not tarried or teetered and shall not. The reason is clear. The writ must right the wrong forthwith or must stand self-condemned as make-believe. Where justice is in jeopardy or freedom is in fetters the court is not nonaligned and acts with sensitive speed. Time is of essence where otherwise torture is the consequence.
….Justice without power is inefficient; power without justice is tyranny…. Justice and power must therefore be brought together, so that whatever is just may be powerful, and whatever is powerful may be just. (Blaise Pascal) ….the State must re-educate the constabulary out of their sadistic arts and inculcate a respect for the human person – a process which must begin more by example than by precept if the lower rungs are really to emulate. Thirdly, if any of these escort policemen are found to have misconducted themselves, no sense of police solidarity or in-service comity should induce the authorities to hide the crime. Condign action, quickly taken is surer guarantee of community credence than bruiting about that ‘all is well with the police, the critics are always in the wrong’. Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper would on our constitutional culture than a State official running berserk regardless of human rights. We believe the basic pathology which makes police cruelty possible will receive government’s serious attention. Who will police the police ? What psychic stress and social deprivation of the constabulary’s life-style need corrective healing ? When will ‘wits, not fists’ become a police kit ? When will the roots of ‘third degree’ be plucked out and the fresh shoots of humanist respect put out ? We make these observations in the humane hope that Article 21, with its profound concern for life and limb, will become dysfunctional unless the agencies of the law in the police and prison establishments have sympathy for the humanist creed of that Article.
….We cannot agree that either the Section or the Rules of the jail manual can be read in the absolutist expansionism the prison authorities would like us to read. That would virtually mean that prisoners are not-persons to be dealt with at the mercy of the prison echelons. This country has no totalitarian territory even within the walled world we call prison. Article 14, 19 and 21 operate within the prisons in the manner explained in Sunil Batra (I) (Sunil Batra (I) v. Delhi Administration, (1978) 4 SCC 494 : 1979 SCC (Cri) 155), by a Constitution Bench of this Court. It is significant that the two opinions given separately in that judgment agree in spirit and substance, in reasoning and conclusions. Batra in that case was stated to be in a separate confinement and not solitary cell. An identical plea has been put forward here too. For the reasons given in Sunil Batra (I) case (Sunil Batra (I) v. Delhi Administration, (1978) 4 SCC 494 : 1979 SCC (Cri) 155 we must overrule the extenuatory submission that a separate cell is different from solitary confinement. The petitioners will, therefore, be entitled to move within the confines of the prison like other undergoing rigorous imprisonment. If special restrictions of a punitive or harsh character have to be imposed for convincing security reasons, it is necessary to comply with natural justice as indicated in Sunil Batra (I) case (Sunil Batra (I) v. Delhi Administration, (1978) 4 SCC 494 :
1979 SCC (Cri) 155). Moreover, there must be an appeal not from Caeser to Caeser, but from a prison authority to a judicial organ when such treatment is meted out.”
12. That the important questions of law which arise for the kind consideration of this Hon’ble High Court in the present petition are as under:-
(a) Whether the writ of Habeas Corpus can be issued for releasing an undertrial from the solitary confinement in the jail premises ?
(b) Whether an undertrial lodged in the jail can be put in solitary confinement at the pleasure of the jail superintendent without any justifiable cause ?
(c) Whether the deprivation of basic amenities to the Pakistani national, Abid Mehmood, including using public toilet for answering nature’s call, cold drinking water and clean clothes, reading material, opportunity to meet a lawyer in the jail for defending his trial, is an infringement of the fundamental right to life of the detenue ?
(d) Whether the discriminatory action of the jail superintendent in giving all basic amenities to other prisoners lodged in the jail, but denying the same amenities to a single detenue on his own grounds is a
violation of the human right to life and liberty of the detenue ?
13. That the Petitioner is left with no other alternative or more efficacious remedy but to approach this Hon’ble High Court by way of the present petition. No remedy of appeal or revision is avaiable in the present case.
14. That the Petitioner has not filed any other or similar petition on the same subject matter or cause of action against the respondents either before the Supreme Court of India or in any other court of law including this Hon’ble High Court in India.
15. That the Petitioners have information that similar discriminatory treatment is being given by the respondent no.2 to few other prisoners in the name of maintaining discipline which needs to be judicially
reviewed in exercise of powers conferred under Articles 226/227 of the Constitution of India.
P R A Y E R :-
It is therefore,most respectfully prayed that this Hon’ble High Court may be pleased to :-
(i) ISSUE A WRIT OF HABEAS CORPUS DIRECTING THE RESPONDENT TO RELEASE A PAKISTANI UNDERTRIAL ABID MEHMOOD, SON OF TALIB MEHMOOD FROM SOLITARY CONFINEMENT IN “20 CHAKKI”;
(ii) ISSUE APPROPRIATE DIRECTIONS TO THE RESPONDENTS TO PROVIDE BASIC AMENITIES TO THE
ABOVE NAMED UNDERTRIAL WHICH ARE PROVIDED TO ALL OTHER UNDERTRIALS IN THE MODEL JAIL, BURAIL, U.T. CHANDIGARH;
(iii) ISSUE ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION WHICH THIS HON’BLE HIGH COURT MAY DEEM FIT AND PROPER KEEPING IN VIEW THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE.
(iv) DISPENSE WITH THE SERVICE OF ADVANCE NOTICE UPON THE RESPONDENTS.
CHANDIGARH
PETITIONER
DATED;5.6.2003
THROUGH COUNSEL
(ARUNJEEV SINGH WALIA)ADVOCATE
COUNSEL FOR THE PETITIONER