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Judgment
S.S. Sodhi, J.—The matter here concern the allegations of torture of detenus at Ladha Kothi in Sangrur.
During a visit to the Jail at Nabha in December, 1984, the detenus detained under the National Security Act, 1980 came forth with the complaint that they were taken from there in batches to Ladha Kothi where they were tortured. The relevant extract of my note recorded on this visit reads as under :--
The most serious complaint made and one widely and openly voiced by the detenus particularly those in the Nabha Jail was of torture while in custody. It was mentioned that batches of detenus were taken to Ladha Kothi (in Sangrur) which though designated as Jail was in fact an interrogation centre, where all kinds of torture was inflicted upon them. This is indeed a matter of grave concern and the openness and the frequency with which it was voiced, cannot but invite serious note. Some of the detenus in fact proceeded to given descriptions of the tortures inflicted upon them.
The Jail Superintendent confirmed that detenus were often sent from Nabha to Ladha Kothi and it appeared from some of the transfer orders shown that the period of stay of such detenus at Ladha Kothi was usually about a week or so. In other words, they were taken from the Jail at Nabha and brought back there after spending a couple of days at Ladha Kothi. The allegations of torture during interrogation of the detenus at Ladha Kothi calls for an immediate probe and necessary consequential action.
The District & Sessions Judge, Patiala is accordingly directed to visit the Jails at Patiala and Nabha and to inquire into and to submit his report regarding these allegations. He may if necessary, also visit the jail at Ladha Kothi. This be treated as a matter of urgency.
In pursuance of the direction to this effect, the District and Sessions Judge, Patiala, enquired into the matter and reported that during the period August 30, 1984 to January 11, 1985, 92 detenus were taken for short spells in batches from Jail at Nabha to Ladha Kothi. According to the statements of some of the detenus, recorded by the District & Sesions Judge they were all tortured during their interrogation & Ladha Kothi and they narrated similar accounts of the modes of torture inflicted upon them.
Besides this, the conditions at the Jail at Ladha Kothi were also adversely commented upon. The District & Sessions Judge observed in this behalf, "the portion of the premises where the cells, in which the detenus are confined, are located, is in the shape of a barrack with narrow compound on its front and the compound is having a very high wall to screen it. In the cells, there are no costs. In some cells, utensils consisting of mugs and anamelled plates were laying. In one corner of each cell, there was place meant for urinating and easting out. Cells were stinking."
The District and Sessions Judge also reported that "the detenus were at no time allowed to meet or converse with each other and they were not provided any newspapers or other facilities which were available to them at the jail at Nabha."
Further, as regards the medical facilities for the detenus, the Jail Superintendent of Ladha Kothi was quoted as saying, that "there was no regular doctor. A doctor from a rural dispensary from nearby village had been deputed to visit Ladha Kothi once a day, but the doctor had no provision for the medicines for inmates of Ladha Kothi."
The District & Sessions Judge thus concluded that he obtained the impression that Ladha Kothi was just an ''Interrogation Centre'', and that "it possessed least trappings of Central Jail." and further, that "there seemed to be no justification for shifting of small batches of detenus from Nabha Jail to Ladha Kothi."
On receipt of the report of the District & Sessions Judge, Patiala, the matter was taken up on the judicial side and notice was issued to the Home Secretary, Punjab, as also to the Superintendents of Jails at Nabha and Ladha Kothi.
On putting in appearance, Karam Singh, Superintendent of the Jail at Ladha Kothi stated in his affidavit of February 26, 1985 that the detenus detained under the National Security Act, 1980 at Nabha were brougnt to Ladha Kothi to facilitate interviews by police officers. This was done in accordance with the provisions of clause (b), Section 5 of the National Security Act, 1980 read with Rules 8 and 26 of the Punjab Detenus (Conditions of Detention) Order, 1981 (hereinafter referred to as ''the Detention Rules''). Further, it was specifically denied that any of the detenus were subjected to any torture at Ladha Kothi.
As regards the mode and manner of the detention of the detenus at Ladha Kothi, it was stated that they were kept in association cells in accordance with the provisions of the rule 5 of the Detention Rules and were served food in their cells. The facility of flush latrines with water-tap had also been provided to them within their cells. Food, clothing and bedding etc., as were available at Ladha Kothi were also given to them. It was also stated that as the detenus were kept in association wards, they were always in a position to meet and converse with each other.
As for medical facilities, it was stated that the Medical Officer, Incharge of the Canal Dispensary Ladha Kothi, in whose jurisdiction the Jail at Ladha Kothi was situated, had been regularly visiting the Jail to look after the inmates and no detenu was allowed to suffer for want of medical facilities. It was mentioned in this context that no occasion ever arose necessitating the removal of a detenu to the civil dispensary outside the jail for any special treatment, which, he claimed supported the fact that the detenus were being properly looked after. To a similar effect was the affidavit filed by Mr. Ajit Kumar, Special Secretary (Home), Punjab.
Next to note is the statement on affidavit of Gurdarshan Singh, the Superintendent of the Jail at Nabha, who stated that the detenus were shifted to Ladha Kothi under the orders of the competent authority, that is, Home Secretary, Punjab and that no detenu ever complained of any mal-treatment or physical torture at Ladha Kothi,
The Advocate-General, Punjab, also placed on record affidavits of other persons too with a view to show that the allegations of torture of detenus at Ladha Kothi were not true. These affidavits being of Dr Phul Chand Jindal, who stated that he had been visiting Ladha Kothi to look after the inmates there.
Dr Satnam Singh, Incharge of the Hospital in the Jail at Nabha and Shri Raj Kumar, Pharmacist at that Hospital. Besides this, the supplementary affidavit of Karam Singh, Superintendent of the Jail at Ladha Kothi, as also that of Gurdarshan Singh, Deputy Superintendent of the Jail at Nabha, were also filed.
The reason for shifting of detenus from the Jail at Nabha to Ladha Kothi was spelt out by Mr. Ajit Kumar, Special Secretary (Home), Punjab, in his supplementary affidavit of March 21, 1985, where it was stated that there was reason to believe that the 92 detenus in question had perpetrated violence which was criminal in nature and actionable in law. It was, therefore, considered necessary to interview them in an atmosphere free from the immediate effect and vicinity of a large number of persons suspected to have acted with the same motivations. As there was a large concentration of terrorists at the Jail at Nabha, it was considered that such an atmosphere did not obtain there and it was consequently decided to shift these 92 detenus to Ladha Kothi and keep them there for some time so that the impression formed in their mind in the company of other terrorists could be removed and there was a fair expectation of their making a clean breast of whatever they knew. It was further stated that at Ladha Kothi there was the added advantage of availing of the services of a knowledgeable officer, namely; Karam Singh, Superintendent of Police, Incharge of the Jail at Ladha Kothi, who had been authorised for the purpose by the Director-General of Police, Punjab, in accordance with the provisions of the Detention Rules
During the pendency of this matter here, the District & Sessions Judge, Patiala, was called upon by the Supreme Court in Writ Petition (Criminal) 378 of 1985 filed by Mrs. Kamla Devi Chatoupadhiya, to submit another report on allegations of torture of detenus at Ladha Kothi. A copy of the report forwarded to the Supreme Court, in pursuance of this direction, has also been placed on record here. According to his subsequent report too, the Judge reported that all the 14 detenus examined by him corroborated the allegations of torture in their statements and also deposed to various modes of torture, they were subjected to.
The findings of torture of detenus, as recorded in the subsequent report of the District & Sessions Judge, were again sought to be controverted by the supplementary affidavit of Karam Singh, Superintendent of the Jail at Ladha Kothi.
Tagged to that matter here is criminal Writ Petition No. 105 of 1985 (Harbam Singh Ghuman v. State of Punjab and others) containing similar allegations of torture of detenus at Ladha Kothi.
Considering the importance of the matters raised in these proceedings, Mr. D.V. Sehgal, Senior Advocate (as his Lordship then was), was appointed as counsel to assist the Court in the matter. Later, on his application, the relevant record pertaining to the detenus at the Jail at Nabha was also sent for. The record summoned was produced and made available for inspection.
Both Mr. D. V. Sehgal as also Mr. G.S. Grewal, counsel for the petitioner Harbans Singh Ghuman, adverted to the record produced with a view to show that the transfer of detenus from the jail at Nabha to Ladha Kothi was a colourable exercise of the power of transfer. The contention being that it was for interrogation by the police, and not interview, as permitted by the detention rules. A point was also made here of Ladha Kothi until very recently being an interrogation centre. Further, it was argued that these transfers conformed to a predetermined pattern which was designed to provide for solitary confinment and segregation not permitted by law. Great stress was also laid upon the fact that power to allow interviews of detenus by the police was vested in the very person, namely, Karam Singh, Superintendent of Police, in whose custody the detenus were kept. Reference here being to the fact that he was also the Superintendent of the jail at Ladha Kothi.
The Advocate General, on the other hand, pointed to the various orders where the permission granted was to interview, and not interogate, the detenus. The charge of solitary confinement was also sought to be refuted. As regards the vesting of authority in Karam Singh to allow interviews of detenus by Police, it was argued that no illegality could be atributed to it.
The conditions at Ladha Kothi and the facilities provided to the detenus there also came in for adverse comment in the context of the provisions of the detention rules and the finding recorded in this behalf in the report of the District and the Sessions Judge
The points that thus emerge for consideration pertain, in the first instance, to the conditions at Ladha Kothi, in the context of the facilities provided to them, namely, whether they were as per the detention rules and then there is the matter regarding the allegations of torture.
A reading of the detention rules would show that definite provision has been made there with regard to accommodation, diet, clothing, beedings. furniture, books and periodicals and sundry allowances for detenus. As mentioned earlier, the District and Sessions Judge in his report had made critical mention of the condition at Ladha Kothi. The Special Secretary (Home) Punjab, and the jail Superintendent, Ladha Kothi, sought to dispel this charge by denying it saying that the detenus were provided "all those facilities as were available in the Ladha Kothi jail" a statement that tends to conceal more than what it reveals, in that, they neither spelt out in precise terms the facilities actually provided, nor was it said that what was available to the detenus conformed to the requirements of the detention rules. The inevitable impression caused thereby being that the detenus were denied the facilities as prescribed by the detention rules. Not without significance in this context is the fact that Ladha Kothi was proviously an interrogation centre and was being used as such until not so long ago. This matter must, however, rest here as there are no longerany detenus in Ladha Kothi and indeed none have been sent there since matter was taken up here.
In the situation, as has come to light, it would, of course, be relevant to recall the judgment of the Supreme Court in A.K. Roy and Others Vs. Union of India (UOI) and Others, where in dealing with the constitutional validity of the National Security Act, 1980, Chief Justice Chandrachud made it a point to impress upon the Government that detenus must be afforded all reasonable facilities for an existence consistent with human dignity It was also observed, "Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community" and further that "whatever smacks of punishment must be scrupulously avoided in matters of preventive detention".
There can, thus, be no escape from the conclusion that it is incumbent upon the Government as the detaining authority to ensure that detenus are provided all the facilities as have been prescribed in the detention rules. The Court would certainly intervene to enforce the provisions of the detention rules if they are not complied with or are disregarded. In other words, the provisions of such facilities to detenus are mandatory.
It also follows that no place can be declared or used as a place for detention of detenus where the prescribed facilities are incapable of being provided to them.
Turning now to the other and more serious matter, namely, that pertaining to the allegation of torture of detenus at Ladha Kothi, there is no gainsaying that what Krishna Iyer J. observed with regard to prisoners in Sunil Batra Vs. Delhi Administration and Others etc., aptly applies to detenus too, namely, "Courts which sign citizens into prison have an onerous duty to ensure that during detention and subject to the Constitution, freedom from torture belongs to the detenu" and further "Part III of the Constitution does not part company with the prisoner at the gates and judicial oversight protects prisoner''s shruken fundamental rights, if flouted, frowned upon or frozen by the prison authorities.
The charge of torture of detenus as made here undoubtedly calls for probe and enquiry and then necessary consequential action. It is pertinent to note here that the Special Secretary (Home), Punjab, too has chosen to deny and refute this allegation, but significantly without any mention of any investigation or enquiry into the matter. As regards the enquiry to be held, it was recognised by all concerned that it was imperative not only that such an enquiry should be fair and independent but also that it must appear to be so too. The name of Mr. S.S. Dhanoa, Adviser to the Punjab Governor, was accordingly suggested. The Advocate General, Punjab, has now conveyed the approval of the Punjab Government to such an enquiry being held by Mr. S.S. Dhanoa. The enquiry into the matter in all its aspects is accordingly entrusted to him. Mr. S.S. Dhanoa shall examine all the detenus whose statements were recorded by the District and Sessions Judge and such other detenus besides other persons as he may deem fit to associate in the enquiry. He shall, of course, be at liberty to call for and examine such record aas he may deem appropriate. Mr. R.K. Battas. Retired District & Sessions Judge, now a practicing Advocate of this Court, who is acceptable to all the parties is appointed counsel to assist Mr. S.S. Dhanoa in the enquiry. The Punjab Government shall fix and pay him due remuneration keeping in view his standing and status and the nature of the duties and functions he has been called upon to discharge. It shall also be open to Mr. S.S. Dhanoa to permit counsel to appear on behalf of the detenues and those against whom allegations of torture may be made.
It may be clarified that Mr. S.S. Dhanoa shall not only enquire into the allegations of torture and record his finding with regard to them, but shall also recommend such consequential action as may be called for on the basis of his findings.
Let the relevant record of this matter be forwarded to Mr. S.S. Dhanoa forthwith.
This matter is disposed of accordingly.