In a petition filed by 122 under-trial prisoners voicing several grievances Advocate C.S. Dias, who was appointed by this Court as Amicus Curiae, brought to the notice of this Court that there are huge number of under-trial prisoners languishing in different jails in the State, undergoing detention for more than even the maximum period of sentence prescribed for the offence or offences alleged against them. It was also submitted that this was mainly due to non-production of such prisoners in court for want of sufficient police escort.

2. Sensing the immediate need for an urgent intervention at the hands of this Court, a direction was issued to the Director General of Police (Prisons) to file a statement whether there are any such prisoners in the jails. A shocking statement dated 20.9.2006 was filed by the D.G.P. (Prisons), in response to the direction of this Court. The statement revealed that there are as many as 109 under-trial prisoners in the various jails of Kerala who suffer detention for more than half of or the maximum period of imprisonment which they have to undergo for the respective offences alleged against them. (The number, indeed, is alarming). The names of the respective jails and the number of prisoners undergoing such detention in those jails have been furnished in the said statement.

3. On hearing both sides, it appears that the main cause for the unwarranted detention of the under-trial prisoners is their non-production in court, due to want of sufficient police escort, as alleged by the prisoners. It is also an admitted fact that there is difficulty in providing adequate police escort on all occasions, for want of sufficient police men. The continued existence of the deplorable state of affair has thus, become not merely imaginary now, but very real, as inferable from the statement of the D.G.P.(Prisons). As a remedial measure, this court issued directions, as early as in March 2005, to implement video-conferencing at least in the three District jails, in the State as suggested by the State itself. But, the said order remains in papers, without compliance. The State prays for further extension of time for implementation of video conferencing.

4. Resultantly, prisoners continue to remain within the four walls of different jails in despair, awaiting their long-over-due production before the court, for want of police escort from jail to court. The voice of the several Magistrate Courts in the State in this regard also seems to be unheard by the State machinery. No one seems to be prepared to take up the burden for the failure, except shirking the responsibility from shoulder to shoulder. This shall not continue any longer, especially since serious violation of the fundamental rights of the citizens are involved in the matter. No Fundamental Right shall ever be denied to any prisoner, except to the extent deprived of bylaw, for the mere reason that he is a prisoner.

5. “A prisoner does not cease to have his constitutional right except to the extent he has been deprived of it in accordance with law”. (vide Kewal Pati v. State of U.P., (1995 (3) SCC 600). The Supreme Court in Nilabati Behera v. State of Orissa, (1993 (2) SCC 746) observed that the wrongdoer is accountable and the State is responsible if the person in custody is deprived of his life except according to the procedure established by law.

6. The Supreme Court, in R.D. Upadhyay v. State of A.P. (2001 (1) SCC 437), observed in a case of violation of fundamental rights of the prisoners at the hands of the State, as follows:

“All that the courts can do in such cases is to award such sums of money, which may appear to be giving of some reasonable compensation, assessed with moderation, to express the court’s condemnation of the tortuous act committed by the State.”

7. The Supreme court continued to observe thus:

“The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is indepe