D. Bhuvan Mohan Patnaik v State of Andhra Pradesh (1974)

Before this case, it was easy to assume that a convict, having lost his liberty by due process, had nothing left to claim. The Supreme Court rejected that assumption in plain words: "Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess." That sentence is the starting point of Indian prison jurisprudence and is the reason the case appears in every answer on prisoners' rights.

Yet the petitioners lost. The case is valuable precisely because it shows both halves of the law: prisoners keep their Article 21 rights, and the State must justify any invasion of them by law, not departmental instructions; but a measure that touches a prisoner only if he tries to escape invades no right at all, because there is no fundamental freedom to escape from lawful custody.

Three prisoners in the Central Jail at Visakhapatnam — D. Bhuvan Mohan Patnaik, Nagabhushan Patnaik and P. Hussainar — filed writ petitions under Article 32. They described themselves as Naxalites; two were also under-trial prisoners in the Parvatipuram Naxalite Conspiracy case. Nagabhushan Patnaik and P. Hussainar had been among eleven Naxalite prisoners who escaped from the jail on the night of 8 October 1969.

After that escape, with 146 Naxalite prisoners lodged in the jail and the usual watch and ward staff found inadequate, the Andhra Pradesh Special Police Force was posted to guard the jail from outside, living in huts on vacant jail land. A high-voltage live wire was also installed on top of the jail wall.

The petitioners sought two reliefs only: (1) removal of the armed police guards posted around the jail, and (2) dismantling of the live-wire mechanism. Their counsel also complained of the segregation of Naxalite prisoners in a "quarantine" and inhuman treatment.

1. Does a convict retain fundamental rights while in prison?
2. Did posting armed police on land appurtenant to the jail violate the prisoners' fundamental rights?
3. Were the allegations of inhuman treatment established?
4. Was the live-wire mechanism, installed without statutory basis, an unconstitutional invasion of Article 21?

The petitions were dismissed and the rule discharged — but, the Court stressed, because the acts complained of were not shown to interfere with their fundamental rights, "and not on the ground that prisoners possess no fundamental rights."

Prisoners keep fundamental rights

Imprisonment by its own force takes away freedoms such as the right to move freely throughout India or to practise a profession. But other freedoms, such as the right to acquire, hold and dispose of property, survive incarceration, and "even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law." The Court relied on State of Maharashtra v Prabhakar Pandurang Sangzgiri, where refusing to let a detenu send a manuscript out for publication was held to infringe his personal liberty.

Police guards outside the jail

The land occupied by the police was, by s. 3(1) of the Prisons Act, part of the prison. The Court deprecated police infiltration into prisons, since under-trials in judicial custody "ought to be immune from the coercive influence of the police." But the argument was hypothetical: the policemen had no access to the walled jail, so their presence "can cause no interference with the personal liberty or the lawful preoccupations of the petitioners." And "We do not think that a convict has any right any more than anyone else has, to dictate whether guards ought to be posted to prevent the escape of prisoners."

Inhuman treatment

The Court issued a warning to the State: "though the Government possesses the constitutional right to initiate laws, it cannot, by taking law into its own hands, resort to oppressive measures to curb the political beliefs of its opponents. No person, not even a prisoner, can be deprived of his 'life' or 'personal liberty' except according to procedure established by law." It noted that "life" means more than mere animal existence (Field J in Munn v Illinois, approved in Kharak Singh v State of UP).

On the evidence, however, it was not satisfied the allegations were true — though it declined to accept "the rosy picture" painted by the jail authorities. Poor amenities were "matters of reform" whose denial "may not necessarily constitute an encroachment on the right guaranteed by Article 21". The Court suggested that the directive in Article 42 on just and humane conditions of work "may benevolently be extended to living conditions in jails", and observed that subtle forms of punishment inflicted on prisoners are "barbarous relics of a bygone era" that "offend against the letter and spirit of our Constitution."

The live wire

First, the Court corrected the State's approach. Arguing that the wire was a reasonable restriction was "a wrong approach": if a measure violates a fundamental right, "the justification of the measure must be sought in some 'law', within the meaning of Article 13(3) (a) of the Constitution." The wire rested only on departmental instructions, and "Such instructions are neither 'law' within the meaning of Article 13(3) (a) nor are they 'procedure established by law' within the meaning of Article 21".

But the wire violated no right. It sat 14 feet up on a 13-foot wall, about 20 feet from the cells, on non-conductors, inspected regularly, and all prisoners were warned of it. So no prisoner would touch it in the normal course of daily life. The decisive sentence: "Whatever be the nature and extent of the petitioners' fundamental right to life and personal liberty, they have no fundamental freedom to escape from lawful custody." They could not complain of a device they would meet "only if they attempt to escape". Carried to its logical end, the argument would require lowering the wall itself, since a fall from 13 feet could also kill.

Section 46(3) of the 1898 Code (no right to cause death in making an arrest) was not contravened: the wire "is a preventive measure intended to act as a deterrent and can cause death only if a prisoner courts death by scaling the wall while attempting to escape from lawful custody."

The Court added that its conclusion did not rest on the State's point that similar systems were used in other jails: "If the system is unconstitutional, its widespread use will not make it constitutional."

A convict is not, by conviction alone, stripped of all fundamental rights; he retains the Article 21 guarantee, and any measure that invades a prisoner's fundamental rights must be justified by "law" within Article 13(3)(a), not by administrative instructions. But a security measure that can affect a prisoner only if he attempts to escape does not infringe any fundamental right, because a prisoner has no fundamental freedom to escape from lawful custody.

• Direct question: Does a prisoner have fundamental rights? Discuss with reference to decided cases. Open with this case's first holding, then the Article 13(3)(a) point, then later prisoner-rights cases such as Charles Sobraj and Rama Murthy v State of Karnataka (1997), which treats this case as one of the foundations of the law on jail management.
• Problem question: a jail installs a security device under a circular. Two steps: (i) does it touch any fundamental right in the prisoner's ordinary life? (ii) if it does, a circular is not "law", so it falls. Here step (i) failed, so step (ii) was never reached.
• Point worth marks: the petitions were dismissed, but expressly not on the ground that prisoners have no rights. Say so.
• Penology link: use the Article 42 remark and "barbarous relics of a bygone era" in answers on prison reform and humane conditions of custody.