JUDGMENT

KRISHNA IYER, J.:— The province of prison justice, the conceptualization of freedom behind bars and the role of judicial power as constitutional sentinel in a prison setting, are of the gravest moment in a world of escalating torture by the minions of State, and in India, where this virgin area of jurisprudence is becoming painfully relevant. Therefore, explicative length has been the result;and so it is that, with all my reverence for and concurrence with my learned brethren on the jurisdictional and jurisprudential basics they have indicated, I have preferred to plough a lonely furrow.

The Core-questions.

2. One important interrogation lies at the root of these twin writ petitions: Does a prison setting, ipso facto, out-law the rule of law, lock out the judicial process from the jail gates and declare a long holiday for human rights of convicts in confinement, and (to change the metaphor) if there is no total eclipse, what luscent segment is open for judicial justice? Three inter-related problems project themselves: (i) a jurisdictional dilemma between hands off prisons and take over jail administration (ii) a constitutional conflict between detentional security and innate liberties and (iii) the role of processual and substantive reasonableness in stopping brutal jail conditions. In such basic situations, pragmatic sensitivity, belighted by the preamble to the Constitution and balancing the vulnerability of caged humans to State torment and the prospect of escape or internal disorder, should be the course for the court to navigate.

3. I proceed to lay bare the broad facts, critically examine the legal contentions and resolve the vital controversy which has profound impact on our value system. Freedom is what Freedom does - to the last and the least - Antyodaya.

4. Two petitioners - Batra and Sobraj - one Indian and the other French, one under death sentence and the other facing grave charges, share in two different shapes, the slings and arrows of incarceratory fortune, but instead of submitting to what they describe as shocking jail injustice, challenge, by separate writ petitions, such traumatic treatment as illegal. The soul of these twin litigations is the question, in spiritual terms, whether the prison system has a conscience in constitutional terms, whether a prisoner, ipso facto, forfeits personhood to become a rightless slave of the State and in cultural terms, whether man-management of prison society can operate its arts by zoological strategies. The grievance of Batra, sentenced to death by the Delhi Sessions Court, is against de facto solitary confinement, pending his appeal, without de jure sanction. And the complaint of Sobraj is against the distressing disablement, by bar fetters, of men behind bars especially of undertrials, and that for unlimited duration, on the ipse dixit of the prison brass. The petitioners seek to use the rule of law to force open the iron gates of Tihar Jail where they are now lodged, and the Prison Administration resists judicial action, in intra-mural matters as forbidden ground, relying on Ss. 30 and 56 of Prisons Act, 1894 (the Act, hereafter). The petitioners invoke Arts. 14, 21 (and 19, in the case of Batra) of the Constitution.

The paramount Law, Prison discipline and judicial oversight.

4-A. The jurisdictional reach and range of this Courts writ to hold prison caprice and cruelty in constitutional leash is incontestable, but teasing intrusion into administrative discretion is legal anathema, absent breaches of constitutional rights or prescribed procedures. Prisoners have enforceable liberties devalued maybe but not demonetized; and under out basic scheme, Prison Power must bow before Judge Power if fundamental freedoms are in jeopardy. The principle is settled, as some American decisions have neatly put it. Donnel Douglas v. Maurice H. Sigler, 386 F 2nd 684.

"The matter of internal management of prisons or correctional institutions is vested in and rests with the hands of th