Shaffique,J
In W.P.C.No.17596 of 2009, the petitioner, who was an officer of Central Prison having taken voluntary retirement and having noticed various violations and also short falls in the administration of jail system, has approached this Court inter alia seeking for various directions for effective functioning of prisons in the State.
2. W.P.C.No.23310 of 2009 has been taken as a suo motu proceedings initiated by this Court on a complaint given by Adv.Sri.M.L.George seeking to fill up the vacancies in the jails and for appointment of Prison Reforms Commission, periodical visit by Sessions Judge and District Magistrate to the prisons in the State and to provide proper accommodation facilities for the prisoners exceeding the sanctioned strength of accommodation. Since both these writ petitions substantially relate to similar issues, these are decided together.
3. During the pendency of these writ petitions, this Court had called for several reports to evaluate the system that was being followed in prisons. Reports from the District Judge of various Districts were also called for to understand the correct position of the matter.
3. Sri.C.E.Unnikrishnan, Advocate has been appointed as amicus curiae. Reports were filed by amicus curiae narrating the details of the various reports submitted by District & Sessions Judges and also the particulars obtained from other sources. An interim report was filed on 28/6/2010 and additional report has been filed on 20/12/2013.
4. Separate counter affidavits have been filed by respondents 1 and 2 in the above writ petitions.
5. Amicus curiae has reported the following factors in the interim report dated 28/06/2010.
“8. Permitting the temporary hands to deal with the convicts is not desirable. They may lack discipline and commitment. In an article written in a Malayalam daily, the former DGP writes that the security checking outside the Thihar Jail is being done by the Tamil Nadu Police. Entrusting the security checking of convicts and visitors going inside the jails by the police force from outside the state will increase the efficiency, according to him. It is very pertinent to submit that a few days ago two hard core convicts have escaped from the central prison Kannur and 3 jail officials have been placed under suspension, pending enquiry. When the posts in the jails are manned by employment exchange and daily wages hands, the required expertise, experience and commitment will be lacking. More over there is also a possibility that these people may act as the agents of outside people who might have connection with the convicts. It is reported in the media that on the day of the escape of two convicts, there were only 22 warders to guard 1903 convicts and out of the 106 in the posts of warders, only 7 are the regular employees. It may be relevant to submit here that according to a retired head of the department of jails, the warders who are appointed in jails even through the Public Service Commission are not getting any training in the manner in which police constables and other officers of the police force are being trained before their appointment. The only way to improve the disciplinary situation will be to fill up all existing vacancies with regular hands having sufficient training and expertise. The possibilities of appointing personnel from outside agencies like home guards can be considered, till all the required vacancies are filled up in accordance with law.
9. With regard to the report in Malayala Manorama daily dated 28/05/2009 accusing the jail authorities of permitting an accused in a murder case to use the mobile phone inside the Ernakulam sub jail, it may be submitted that the report of the JFMC after the surprise visit, mentioned in the report of the learned District & Sessions Judge, Ernakulam dated 13/10/2009 may be called for by this Hon'ble court to ascertain the real facts.
10. Though it has been reported that there was no direct evidence of any unauthorised possession of prohibited articles like cell phones, cash and narcotic drugs by the convicts in the jail, it has come out in print as well as electronic media that raids have been conducted in the Central Prison, Kannur, after the escape of two hard core convicts, and considerable volume of prohibited articles have been confiscated. It leads to the irresistible conclusion that the officials of the jail are also aiding the culprits to a certain extent in these matters. So emergent action on high level is required to curb such practices in all the other jails also.
11. Jails are institutions where persons whose presence in the society are not at all desirable, are being kept. It is an undisputed fact that convicts are to be kept away from the society. So under no circumstances, be it due to over crowding, lack of sufficient staff or other physical infrastructure, the convicts shall get opportunities to escape from prisons. So it is high time that some reformative measures should be thought of and implemented.
12. Yet another reason for the unrest and indiscipline is attributed to the housing of political prisoners. It is pointed out that they should not be kept in the jails of their native places as far as possible. The extra benefits they may be able to manage using the political influence, will make the other prisoners unhappy and dissatisfied and this will lead to the failure of law and order situation in jails.
13. As per the rules, periodical raids in jails should be done. It is also reported in the media that such a full fledged raid, keeping the convicts outside the blocks, was done in the Central prison, Kannur, after the lapse of 5 years. So it is only proper in the interest of the security of all the jails that such raids should be carried out in all the jails, if it has not been done so far. When such a raid was conducted under the supervision of high officials, several prohibited articles like cell phones, chargers, sim cards, ear phones, narcotic drugs, small weapons, mats, pillows and sacks etc were recovered. So this is an area where emergent attention of the authorities should be drawn to. Here it is very relevant to note that way back on 12th February 2008, the then ADGP (Prisons) had filed an affidavit before this Hon'ble court in CRL.M.C.No.400/2001 (suo motu proceedings) wherein it was sworn to that action is being taken to install mobile jammers and CCTV surveillance system in major jails and that DIGs and all superintendents of jails were given strict directions for taking effective action to prevent the trafficking of ganja, liquor and drugs to the jails. It was very disturbing to note from the media that the CCTV system was not working properly at the time the two convicts escaped from the prison. Similarly the result of the raid held a few days ago shows that the authorities are not able to curb the use of mobile phones and narcotic substances in the jail effectively so far. It is also reported by media that emergent steps are being taken as per the orders of the ADGP (Prisons) to shift some of the convicts to other jails to reduce the work load of the staff in Central Prison Kannur and also Rs.13 lakhs have been allotted to improve the security arrangements there.
However, it is high time that some more stringent measures to be applied to bring the situation totally under control.
14. Frequent reports are appearing in the media that the authorities are ignoring the intelligence reports giving warning about the exploding situation in jails in Kerala. So it is only proper that this Hon'ble court may call for a report from the Government on this aspect to ascertain the correctness of the media reports.
15. It is also seen that video conferencing facility, connecting the jails and the court has been introduced in central prison, Viyyur on 27/06/2010. Such measures will definitely help to make the affairs of the jail more transparent. So implementation of a time bound project to extend the facility to all jails can also be done with top priority. The reports appeared in media in connection with the above programme indicates that the illegalities and irregularities have been brought to the notice of the Government and that the Government is intending to take appropriate action in the matter.
16. Since it has been reported by the Government that they are taking appropriate steps in a time bound manner, the result of such action may be watched by this Hon'ble Court. In the meanwhile appropriate direction may be issued to see that the law and order situation in all the jails are under control. This can be done by invoking the provisions in the Kerala Prison Rules which provides for social visitors. Apart from that this Hon'ble Court may also pass appropriate orders constituting committees for each district, wherein the services of lawyers and social workers can be utilized to monitor the situation in jails and also to help the process of converting jails to places of reformation. Here it is very important to refer to the directions of the Hon'ble Supreme Court in Sunil Batra (II) (1998) 3 SCC 488.
(i) “Lawyers nominated by the District Magistrate, Sessions Judge, High Court and the Supreme Court will be given all facilities for interviews, visits and confidential communication with prisoners subject to discipline and security considerations. This has roots in the visitorial and supervisory judicial role.
(ii) The lawyers so designated shall be bound to make periodical visits and record and report to the concerned court results which have relevance to legal grievances. District Magistrates and Sessions Judges shall, personally or through surrogates, visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances, shall make expeditious enquiries there into and take suitable remedial action. In appropriate cases reports shall be made to the High Court for the latter to initiate, if found necessary, habeas action.”
(iii) The court went on to observe further that “Prison discipline should be such as to gain the will of the prisoner and conserve his self respect and that “The aim of the prison should be to make industrious free men rather than orderly and obedient prisoners. Though the said observations were made while considering a different question, it has some relevance in the case in hand also, especially when it raises serious questions of safety of jails.”
6. In the additional report, the amicus curiae has indicated in paragraph 2 as under:
“Now, after the lapse of almost 3 ½ years, I was able to get further information in the matter through a letter dated 12/12/2012 sent from the prisons head quarters, Thiruvananthapuram. The report brings out the following main facts:
(i) The overcrowding in jails in the State is continuing even now. The data submitted by the department of Prisons show that while the authorised capacity of inmates in all the jails together in the State is 6380 in number, the total number of prisoners accommodated is 7550.
(ii) In the year 2006 accommodation capacity of all jails in the State was 3648. During the period from 2006 to 2010 additional facilities to accommodate 1857 prisoners was created. But the report does not mention any activities done between the years 2010 and 2013.
(iii) In order to reduce the overcrowding in jails further, 4 major jails are under construction in the State. No details as to when the construction of the above four jails will be completed is not made available. It only states that on completion, additional 1524 prisoners can be accommodated.
(iv) The category wise list of posts lying vacant as on 01/12/2013 shows that there are 306 vacancies of warders, 5 head warders, 4 female warders, 2 medical officers, 2 agricultural officers and 8 welfare officers. At the time of filing of the interim report dated 27/06/2010, the vacancies of warders was 525 in number and the head of the prisons had reported that the Public Service Commission has been addressed to take urgent steps. Whereas the required strength of male warders in Central Prison, Thiruvananthapuram is 165, the vacancy to be filled up is 67. The situation of Central Prison, Viyyur is also no better. When the sanctioned posts are 80, the vacancy is 34. In Central Prison, Kannur, the sanctioned post is 105 and vacancy is 64. The 2nd and 3rd respondents may be directed to file a statement as to the present position of the efforts taken to fill up the vacancies.”
7. From the pleadings, reports and other materials available on record, the following factors are clear:
i) There are three Central Prisons, two open prisons, three District Jails, two Women's prisons, Seven special sub jails and 29 sub jails in the State.
ii) The Kerala Prisons Correctional Services (Management) Act, 2010 (hereinafter referred to as 'the Act 2010') has been promulgated which has come into force on 14/05/2010. The Act is intended to provide for the safe custody, correction, reformation, welfare and rehabilitation of prisoners and management of prisons and correctional services in the State and for matters connected therein and incidental therefrom. The Statute, while dealing with various matters in connection with the prisons, also makes provisions for discipline in prisons by way of Chapter VI, provision for admission and removal of prisoners by way of Chapter VII, Food, clothing and bedding of prisoners coming under Chapter VIII, rights and duties of prisoners coming under Chapter IX and various other provisions relating to the classification of prisoners, custody and security of the prisoners, their health and personal hygiene, welfare programmes, grievance redressal mechanism etc. Perusal of the Statute indicates that a comprehensive legislation has been brought in, to ensure that the prisons are being administered in accordance with the statutory provisions and that appropriate measures are being taken to provide necessary facilities to the prisoners depending upon the classification and separation of prisoners. When the Statute has made such comprehensive provisions to ensure proper management and administration of prisons in the State, it is for the authorities to ensure strict compliance of the statutory provisions.
iii) One major factor which has been brought to the notice of this Court in the report of the Amicus curiae is the large number of prisoners in excess of the capacity available for accommodating them in various prisons. This fact is virtually admitted by the respondents by giving the facts and figures also. They have further stated that further infrastructural facilities are being provided to ensure that sufficient accommodation is being made for all the prisoners. Reference is also made to Kerala Prison Rules to indicate that all the procedures prescribed are being complied with by the authorities.
iv) Learned Amicus curiae has also pointed out that there is considerable deficiency in the staff. It is pointed out that most of the persons employed are working on daily wages. There is dearth of permanent staff in the prison which is also a major problem.
8. Having regard to the factual situation, we do not think that this Court should issue any direction in these writ petitions. The amicus curiae has already pointed out certain deficiencies which are to be considered by the Government and appropriate steps can be taken in accordance with law. It is an admitted fact that there is overcrowding in the prisons and facilities now available are not sufficient for the prisoners those are being held in these days. When the Legislature has made statutory provisions as available under Act of 2010, it is the responsibility of the authorities under the Act to take up the matter with the Government and ensure that appropriate facilities are available to enable them to have a complete control over the administration of prisons in accordance with the statutory provisions.
Hence we dispose of these writ petitions directing the 1st respondent to take note of the deficiencies pointed by the Amicus Curiae and take appropriate measures in accordance with law.
We appreciate the efficient and meticulous assistance rendered by the learned Amicus Curiae, in this regard.
(ASHOK BHUSHAN, ACTING CHIEF JUSTICE) (A.M.SHAFFIQUE, JUDGE) jsr