Judgment

V. R. KRISHNA IYER, J,:- Is a prison term in Tihar Jail a post-graduate course in crime? Such is the poignant issue that emerges from the facts of this case.

2. The fundamental human right is not to a legal system that is infallible but to one that is fair - these great words of Lord Diplock in Maharaj v. Attorney General of Trinidad and Tobago (No. 2), (1978) 1 WLR 902 at p. 911 trigger our jurisdiction to ensure a fair legal deal to the prisoner whose petition to this Court makes frightening exposures about the insiders of Delhis Central Jail.

3. Kaushik, a lifer (to use jail jargon), now lodged in the Tihar Central Jail, has moved this quasi-habeas corpus petition wherein he bitterly complains with facts and figures, of the terror and horror, physical and psychic, let loose on him and other jail-mates by a cryptocriminal combination of senior officials and superior prisoners, thereby making the prison life within that walled world such a trauma and torment the law never meant under the sentence suffered at the hands of the court. Prison torture is not beyond the reach of this Court in its constitutional jurisdiction and so we appointed Shri Subodh Markandeya as amicus curiae and directed the Superintendent of the Jail to make available for him facilities to meet the prisoner Kaushik and to present, after a brief fact-finding enquiry, the facts necessary for taking further action, if any, Shri Markandeya has, with a gush of gusto, excuted his work of assisting this Court and made a report, and we record our appreciation therefor. What makes law a force is a lawyer with a cause.

4. The Delhi Administration has responded through counsel and traversed the grounds in the petition but Shri Abdul Khader, appearing for the State, has fairly agreed that the Superintendent of the Central Jail, far from fighting shy of a probe into the prison management and the shocking aspersions cast on it would welcome a judicial investigation where he could prove his innocence of the foul charges levelled.

5. Were there a modicum of truth in the disclosures made of vice and violence, over and covert, in the goings on in Tihar such an institutional outrage would make our constitutional culture blush and our judicial punishment guilty procedure. And on the materials placed before us there is ground enough to exercise our exceptional but undoubted jurisdiction to ensure some minimum of social hygiene and banishment of licentious excesses lest the sentence of Court be frustrated in its dual ends of deterrence and rehabilitation by prison pathology.

6. Briefly the petitioner alleges that his life in jail is subjected to intimidation by overbearing toughs inside, that he is forced to be party to misappropriation of jail funds by and bribery of officers, that homosexual and sexual indulgence with the connivance of officials are going on, that smuggling in and out is frequent and drug racket common, that alcoholic and violent misconduct by gangs like those involved in Bank Robbery and other notorious cases are a menace to quieter prisoners and the whole goal of reformation of sentences is defeated by this supercrime syndrome. Maybe, like Oscar Wilde, the petitioner, in flinging allegations, considers that "moderation is a fatal thing. Nothing succeeds like excess". Making a large margin for unveracious dilution, still, if a fragment of truth survives, something is rotten in the State of Denmark. This courts writ must remove from Tihars face such indelible stain and incurable wound.

7. When police and prison torture is escalating in our human rights era, courts owe a duty to society not to ignore such a dangerous reality. "At this time the lack of law and order is especially of prime concern. Our courts must bear their share of blame and shame for this condition".*l

* 1. From the dissent of Montogomery, J. in Workmen and Pipes v. Kentucky (376) (see also United States Prison Law Edn. 1975, Vol. I, P. 624)

8. Under our Constitution, deprivation of personal