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A and B are convicted for the same crime, which is the murder of C. Both of them are awarded the same punishment by the same Court in Madhya Pradesh. After a few years, A is transferred to a jail in Punjab. The Jail Manual in Punjab differs a great deal from that of Madhya Pradesh, providing comparatively more benefits to inmates, which include better living standards through access to books and formal education, better wages and better hygiene. At the same time, B is left languishing in Madhya Pradesh, where the state of affairs is not up to the mark. Isn’t this discrimination? The Harvard Law Review published a fascinating article on the transfer of prisoners across states in the United States. This piece will look at some of these aspects, in the Indian scenario.
Usually, a person who is accused of a crime and is in judicial custody, is lodged in the prison nearest to the Court of trial. In most places, this Court is the one which has the territorial jurisdiction over the place of crime. As a practitioner, the author has observed that in most cases, the victim as well as the accused reside in the same district. While the accused is lodged in jail, they may be visited by their family members, who will have to travel within the district. The accused is also able to regularly attend Court and undergo trial. The victim or their family can witness the trial and see to the fairness of the process themselves. But, all of this changes when an inmate is transferred to a different state. How does this transfer take place? How are the rights of an accused and rights of a victim balanced? These are the fundamental questions answered by this article.
The Prisoners Act, 1900 consolidated the law relating to prisoners, who were designated so due to the order of a Court. As Section 29 of the Prisoners Act, 1900 covered only intra-state transfer of prisoners, the Parliament enacted the Transfer of Prisoners Act, 1950. Transfer of Prisoners Act, 1950 provides only limited grounds for transfer and in specific circumstances, and they too can only be initiated by the ‘appropriate government’. Therefore, the question “what is an appropriate government?” becomes important to answer.
In State of Madhya Pradesh v. Ratan Singh and Others, the Supreme Court faced a question as to who will the “appropriate government” be qua an inmate, who was convicted in a state, but later on transferred to a different state. The factual backdrop of the case is very interesting and shapes up the whole case. Ratan Singh was convicted by the Sessions Judge Bhind in 1957 u/s 302 IPC. In 1959, Ratan Singh made an application to the State Government of Madhya Pradesh stating that he was a native of Punjab, and may please be transferred to Punjab. The request was accepted and Ratan Singh was transferred to Punjab. While in Punjab, Ratan Singh made an application to the Government of Punjab stating that he had spent 20 years behind bars, and was entitled to be released as per Jail Manual of Punjab. The Government of Punjab forwarded his application to the Government of Madhya Pradesh, which rejected the same. Ratan Singh approached the High Court in Chandigarh praying for his release in light of the Punjab Jail Manual. The High Court ordered that Ratan Singh be released, even without issuing notice to the State of Madhya Pradesh. In the SLP before the Apex Court, Madhya Pradesh contended that it was the “appropriate government”. The Court agreed with the submission and said, “In these circumstances there can be no shadow of doubt that the appropriate Government mentioned in sub-s. (1) and sub-s. (2) of s. 401 of the Code of Criminal Procedure refers to the Government of the State where the accused was convicted, that is to say, the transferor Government and not the transferee Government. Any such transfer of the accused from a jail situated in one state to a jail in another state has absolutely no bearing on the question as to the application of s. 401 of the Code of Criminal Procedure, because this is merely an executive matter and an executive decision taken to meet the convenience of the accused.”
Therefore, the state where the offence was conducted and trial performed becomes hugely important. A person may get sundry benefits of Jail Manuals of the State where the person is currently lodged, but material reliefs like remission, will have to be effected through the “appropriate government.”
Transfer of undertrials and balancing act
In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another, the Supreme Court had to examine the application seeking transfer of an undertrial. The undertrial was no ordinary individual but a long-time politician. Such was his cult that he was found to be addressing political rallies in a different district, even when he was in judicial custody. The victim’s family had approached the Apex Court, stating that no fair trial was possible as long as the accused was in Bihar. The authorities in Bihar were simply powerless to exercise any meaningful control over Pappu Yadav, and his criminal activities continued unabated. However, Pappu Yadav contended that there was no law in the statute book for the Court to transfer him to another State. The Court agreed with the submission that the statute did not provide for the same, but added that when an accused can seek a transfer, the Court too can order transfer under Article 142 of the Constitution of India. The Central Bureau of Investigation (hereinafter “CBI”), in its submissions, stated that Pappu Yadav be transferred to jails in Tamil Nadu, far away from Bihar. However, the Court balanced the transfer by ordering Pappu Yadav to be lodged in Tihar Jail in Delhi. The Court said, “While it is true that it is necessary in the interest of justice to transfer the respondent out of State of Bihar, we are required to keep in mind certain basic rights available to the respondent which should not be denied by transferring the respondent to any one of the jail suggested by CBI. It will cause some hardship to the wife and children of the respondent who we are told are normally residents of Delhi, his wife being a Member of Parliament and two young children going to school in Delhi. Taking into consideration the overall fact situation of the case, we think it appropriate that the respondent be transferred to Tihar Jail at Delhi and we direct the senior most officer-in-charge of Tihar Jail to make such arrangements as he thinks is necessary to prevent the recurrence of the activities of the respondent of the nature referred to hereinabove and shall allow no special privileges to him unless the same is entitled in law. His conduct during his custody in Tihar Jail will specially be monitored and if necessary be reported to this Court. However, the respondent shall be entitled to the benefit of the visit of his family as provided for under the Jail manual of Tihar. He shall also be entitled to such categorization and such facilities available to him in law.”
It is quite interesting to see the balancing act that was carried out by the Supreme Court while deciding the question of transfer. Had the Court transferred Pappu Yadav to Chennai, it would have ensured that he is lodged in a far-off land, away from his relatives as well as known surroundings. However, by transferring him to Delhi, the Court visibly ensured a better family life for the accused, while ensuring the trial remains unaffected by his antics. In addition, Delhi and Bihar being seamlessly connected, it would have been easier to take Pappu Yadav to Bihar for ensuring his personal presence, whenever sought for by the Court.
An opportunity to be heard: Mandatory?
In State of Maharashtra and others v. Saeed Sohail Sheikh, the Supreme Court examined the issue of whether an inmate can be transferred without being afforded an opportunity of being heard. The factual backdrop is that the State of Maharashtra decided to transfer certain inmates from Mumbai to different jails in other districts of the State. The State initiated communication in this regard, which reached the Court in whose judicial custody the inmates were. The Court dealt with communication on the administrative side and approved the transfer. The validity of transfer was challenged, and the Supreme Court held that in such cases “it is obligatory for the Court to apply its mind fairly and objectively to the circumstances in which the transfer is being prayed for and take a considered view having regard to the objections which the prisoner may have to offer. There is in that process of determination and decision making an implicit duty to act fairly, objectively or in other words to act judicially. It follows that any order of transfer passed in any such proceedings can be nothing but a judicial order or at least a quasi-judicial one.” Thus, it is clear that a Court cannot deal with a transfer on the administrative side, and must afford a hearing to the prisoner who is sought to be transferred.
Rights of the accused v. Rights of the victim
How can the rights and interests of an accused be balanced with the rights and interests of a victim? An apt case which deals with this question is Asha Ranjan and another v State of Bihar and another. In the impugned case, the inmate in question was M. Shahabuddin. The victim’s family was seeking his transfer from Bihar to a jail in a different State. The main allegation was that Shahabuddin was running his fiefdom in jail, and the police had remained ineffective in countering his criminal activities. Shahabuddin submitted that the Court had no power to transfer him as the circumstances proposed were not covered under Transfer of Prisoners Act, 1950. He also contended that any transfer would vitiate the basic tenet of Article 21 of the Constitution.
With respect to the first contention regarding there being no power to transfer, the Court held, “It is well settled in law that there is a distinction between a judicial function and the legislative action, and similarly the executive action and a direction from the Court…Therefore, the non-conferment of power under the 1950 Act would not prohibit the High Court, in exercise of its power under Article 226 to transfer a case from one jail to another inside the State depending upon the circumstances”. The Court held that any statutory power envisaged under the Transfer of Prisoners Act, 1950 cannot limit the powers of the Court. The Court further held, “when the issue of fair trial emerges before the constitutional court, Section 3 of the 1950 Act cannot be regarded so as to restrain the court from what is mandated and required for a free and fair trial. The statutory power is not such which is negative and curtails power of the court to act in the interest of justice, and ensure free and fair trial, which is of paramount importance for the Rule of Law. It only controls the power of the executive.”
On the point of fair trial, certain directions of the Court can be considered to be landmark, as they also elaborate the philosophy behind the criminal justice system. Few of such directions are:
1) The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep, the rights of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law, i.e., free and fair trial.
2) When there is an intra-conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instil the Rule of Law. A fair trial is not what the accused wants in the name of fair trial.
3) The weighing of balance between the two perspectives in case of a fair trial would depend upon the facts and circumstances weighed on the scale of constitutional norms and sensibility and larger public interest.
Eventually, it was ordered that M. Shahabuddin be transferred to Tihar Jail, and the trial be conducted through video conferencing.
The Supreme Court of India has made it clear that it has the power to transfer a prisoner from one State to another under Article 142 of the Constitution of India. At the same time, it is a must for the Court to hear the prisoner before ordering a transfer. It is rather sad that the Parliament has not amended the Transfer of Prisoners Act, 1950 to envisage an inter-state transfer of prisoners, and the Court is forced to resort to Article 142, a power which should be used sparingly. Unlike the United States, the substantive rights of a prisoner i.e. of remission and parole remain unaffected in India, as the “appropriate government” continues to be the one of the State in which the said prisoner was convicted. Further, it must also be pointed out that the treatment of prisoners inside jails varies from state to state. Some states have excellent facilities, including working and medical facilities, while some states struggle to put up with basic sanitation facilities. Unfortunately, uniform prison conditions in India, as on date, is a far-fetched idea. The Central Government has prepared a Model Prison Manual, 2016 but many states are yet to adopt the same. To end on a positive note, it must be pointed out that the transfer of prisoners in the United States is mostly done without judicial superintendence (“The Prisoner Trade” Harvard Law Review, 133 Harv. L. Rev. 1815), whereas, the law, as well as the practice of judicial review in India allows for a judicial oversight on transfers.
(Gaurav Pathak is a TCLF Advisory Board Member and a practising Advocate at the High Court of Delhi)