Rasikbhai Ramsing Rana And Etc v. State Of Gujarat

K.J. Vaidya, J.

1. Rasikbhai Ramjibhai Rana and two others by their respective Misc. Criminal Applications through Superintendent, Central Prison, Vadodara, have moved this Court, inter alia praying for releasing them on temporary bail for few days at least on the ground of taking emergency medical treatment from the private Doctors of their choice as unfortunately they are neglected and denied the same since quite some long time, as a result of which their prolonged ailment, in all probability, was likely to be still further worsened going beyond the point of no restoration ! In support of this, they have also produced the necessary medical certificates issued by none other than the Medical Officer himself of Vadodara Central Prison.

2. To briefly narrate the grievances of the petitioners (one of whom is also a lady) undergoing the life imprisonment -each one of them though are suffering from serious illness namely - (1) serious eye trouble, wherein the operation has been advised, which was possible at SSG Hospital; (2) severe pain in Abdomen Lucas and Blood; suffering from internal piles; and (3) severe Hyper-tension, pain in Epigastric region, breathlessness, chest pain etc. etc. and yet, in clear defiance of recommendation of the Medical Officer from Vadodara Jail, they have not been immediately attended to for their medical treatment by taking them specially to SSG Hospital, Vadodara. As a matter of fact, in case of the convict-prisoner Narmadaben, the Medical Officer in terms has opined that the ailment from which she was suffering, was serious enough to be immediately treated by the private expert Doctors!! It is also further stated in the certificates that the jail authorities despite emergent situation could not send the ailing prisoners to SSG Hospital for examination and treatment due to the nonavailability of regular police escort since last 3 to 4 months. On coming to know about this pathetic situation prevailing in jail from no less an authority than Jail Medical Officer, we were simply shocked and taken aback. This was indeed quite unbelievable rather much loss thinkable! And yet the fact remains that it is very much there to be true!! For about last three to four months because of the alleged non-availability of police escort, prisoners were suffering and still appear to be suffering and in quite deteriorating serious condition further worsening every day!! This is simply too much!! Under such inhuman exasperating circumstances, it is quite stunning to be left guessing as to what indeed the higher-ups in the administration were/are doing all these times to meet with such an alarming accountable and none too happy situation ! This would obviously be the most obvious and natural question to any human heart pulsating and possessed with the humanity and justice. And yet quite as unconcerned! Rather with only one concern namely wait for the first day of the month to come and collect the salary packet Are not the prisoners human beings Are they further condemned to jail for all purposes Have they indeed no right to immediate medical care and treatment Can this carefree criminal attitude of authorities in charge of Jail administration and Home Department as well for the said purpose not answerable ^at all These are the basic questions which has very much touched our judicial conscience making us restless. Accordingly, it being quite serious a thing to be lightly countenanced more particularly when the grievance is coming from no other authority than the Jail authority itself which has indeed no reason to ill-portray the Government of which itself is a component and furthermore not been denied at all by the State Government. In this view of the matter, in the first instance, we issued notice to the Medical Officer of Vadodara Central Prison, by passing the following order dated 6-12-1995 :

The office is directed to issue a notice to Dr. Asnani, Medical Officer, Baroda, Central Prison, to remain personally present before this Court on 11-12-1995 at 11-00 AM without fail.

Perused the certificate dated 2-1-1995 issued by Medical Hospital, Baroda Central Prison. The applicant wants to get treatment at the hands of the private Doctor. Unless the applicant produces before us the certificate of the Doctor that the applicant needs immediate treatment and also fixes the date for operation etc. it is not possible for us to release him on temporary b ! for a longer period. Under the circumstance the applicant is ordered to be released on bail for five days from the date of his release in the sum of Rs. 2000/- and a surety of the like amount. It was only after production of the medical certificate regarding operation, that further time could be granted. In that view of the matter, before the temporary release on bail expires, the applicant shall appear before this Court and produce the medical certificate on the basis of which further orders would be passed. D. S. permitted.

Thereafter on 11-12-1996, on Dr. Asnani appearing before this Court, we passed the following order :-

In response to our notice dated 6-12-1995, Dr. Asnani, Medical Officer, Baroda Central Prison, is present before us. We have invited his attention to the certificate dated 2-11-1995 as regards health condition report of convict-prisoner Chatur Dhula, wherein the Medical Officer has expressed his opinion that parole may be granted to the prisoner. In our opinion, it is one of the functions of the Medical Officer to express his opinion or recommend whether the prisoner should be released on parole or not. It is entirely the discretion of the authority concerned which has to decide the same depending on the gravity and seriousness of the disease and the truthfulness and genuineness of- the medical certificate produced before it. To say that a person is suffering from a particular disease is one thing and to exceed the limit and say that parole may be granted is entirely different. This ought not to have been done by the Doctor and we are assured that the same will not be repeated in future. Accepting this assurance from the Doctor, we discharge the notice issued to him.

Office is directed to forward a copy of this order to the Secretary, Home Department, Government of Gujarat, Gandhinagar, with a request to circulate the same to all the Medical Officers in Jail all over Gujarat State, with a view to see that the mistake which is committed by the present Medical Officer is not repeated by any other Medical Officer in the Jails. The office is directed to forward the copy of this order as above, immediately.

3. Thereafter, taking into consideration extremely grave uncared situation prevailing in Vadodara Central Prison to the effect that it was only because of non-availability of .the police escort that the convict-prisoners could not be taken to SSG Hospital for urgent medical treatment, we were constrained to issue notices to the State Government by passing the following order:

Having come across certain cases wherein we have found that prisoners suffering from some serious disease, who are required to be operated on a particular date, could not be operated because it was not possible for the jail unauthorities to send them to the hospital in absence of the police escort. According to the jail authorities, many a time, the police escort is not provided because of paucity of police personnel. The difficulties of the jail authorities and the police department once a while are quite understandable. At the same time, in a given case, for want of police escort in order to see that the prisoner may not further suffer the disease, it is indeed quite necessary that either police escort should be immediately provided on the particular date or some way be found out to meet with the situation. It hardly requires to he told that a convict is sent to jail to suffer imprisonment and not to suffer and be a victim of any disease in jail which is not punishment of the Court. Under the circumstances, with a view to see that the ailing prisoners are properly medically attended to and at the same time the administrative difficulties are minimised, some practicable formula bearing in mind the humanistic approach is required to be worked out, and that can indeed be and certainly be done in the better way if the heads of all the concerned are put together. Under the circumstances, we request (1) Secretary, Home Department, Sachivalaya, Gandhinagar; (2) Additional Chief Secretary (Jail and Prohibition) Sachivalaya, Gandhinagar; and (3) Inspector General of Prisons, Ahmedabad, to see the undersigned on 14-12-1995 at 2-45 PM.

The office is directed to forward a copy of this order to the aforesaid authorities immediately.

4. In response to the above notice Mr. Kr. Fateh Singh Jasol, Additional Chief Secretary to the Government of Gujarat and Mr. R. D. Tahmne, IG Prisons appeared before us on 15-12-1995. While apprising them once again personally also of the facts and circumstances of the case, we had invited their attention to the matter of gross neglect in providing immediate medical attention to the ailing prisoners in Vadodara Jail admittedly on account of nonavailability of the police escort to take them to the SSG Hospital, further impressing upon them that right to the medical treatment is indeed basically a human right and accordingly the State is very much required to take an appropriate care of such prisoners in its custody. With a view to meet with such a tale of woe situation with all possibility of disgustingly recurring in future in other jails also we have impressed upon both the officers to find out immediately in overall public interest some effective administrative solutions in the matter of absolute health care of the prisoners, adjourning the hearing to 16-1 -1996. On that day, after some discussion in the Court room, we had further clarified to both the officers that the question involved was not limited to the problems of Vadodara Prison prisoners alone needing immediate medical attention as it was also of still wider import and importance and accordingly while finding out the permanent solution, sick prisoners languishing in other jails of the State were also required to be kept in mind by way of abundant-caution and the policy decision. Accordingly once again the matter was adjourned to 19-1-1996. On that day, the Additional Chief Secretary was good enough to bring to our notice the draft of the circular duly approved by the Government and hereafter proposed to be issued to all the concerned authorities. This circular is ordered to be taken on the record. The promptness with which Kr. Shri Jasol and Shri Tahmne, has responded to the concern and anxiety of the Court for sick, languishing prisoners indeed needs special mention, appreciation to be kept on record of their respective service-file. The said draft circular reads as under:

NO. JLK/1095/8229/J. Government of Gujarat, Home Department, Sachivalaya, Gandhinagar. DT:

CIRCULAR

In a matter that came before it recently, the High Court of Gujarat had occasion to express concern over the plight of prisoners in the jails and prisons of the State. The Court was inclined to view the matter in the context of the human rights of prisoners and touched upon questions of neglect by the concerned authorities of the prisoners need for medical attention on the one hand and on the other hand the rights of prisoners to such medical attention. The Court was anxious that institutional arrangement be made to minimise scope for such neglect and to give prisoners easy access to remedy in case of need.

Attention of all concerned authorities in this regard is drawn to the provisions of Chapter 15 of the Jail Manual which provides for the constitution of a Board of Visitors for each prison in the State and lays down detailed arrangements as to the tasks and duties of such Boards and the regulation of their functioning. Attention of all authorities is also invited to the Gujarat Visitors of Prisons Rules, 1974, issued under Home Department Notification No. GG/73/340/GJM/1770/4301/J, dated 15th January, 1974 under which the provisions of the Jail Manual have been given statutory character and authority under the provisions of the Prisons Act, 1894.

The attention of concerned authorities is drawn to the fact that several of the provisions of the rules referred to above are mandatory in nature and further to the fact that if these rules are implemented construed vely and effectively there need not be scope for the neglect or denial of prisoners rights in the matter of the health and medical care. Attention in this connection is invited to Rule 10 which provides that the Chairman of the Board of Visitors shall arrange for a weekly visit to the prison by one of the members of the Board. Attention is inviled to Rule 12 under which the duties of visitors are laid down which include inter alia the duty to ascertain that considerations of health and deanliness are attended to. Under Rule 12(d) prisoners have been conferred the right of petition and to make representation. It is further pointed out that under Rule 10(4), it is mandatory for the Chairman of the Board to convene a quarterly meeting of the full Board.

Having regard to the concerns raised by the High Court of Gujarat in the matter of rights of prisoners to timely medical attention in the context of the human rights and having regard to the fact that the State Government fully shares these concerns Government brings the above provisions and requirements of the Gujarat Visitors of Prisons Rules, 1974 to the notice of all concerned and directs all the concerned authorities to ensure regular and constructive compliance with the same.

In particular:

(i) Collectors and District Magistrates should ensure regular quarterly meeting of the Board of Visitors to ensure proper supervision over the implementation of the said Rules.

(ii) They must lay down workable arrangements to ensure weekly visits by at least one visitor nominated from among these mentioned in Rule 3. It is advised that visit reports be secured from all visitors to maintain proper follow up.

(iii) All visitors be provided a copy of the Rules and be adequately advised as to their functions and duties.

(iv) Particular attention be paid to prisoners health care aspects and to the rights of prisoners under Rule 12(2)(d) to be heard and to make a representation.

Government is considering amendment in the Gujarat Visitors of Prisons Rules, 1974, to make compliance with the rules more effective and to provide for proper monitoring of the compliance by all concerned. Pending these changes being made it is directed that the following steps be taken :

(1) All Collectors and District Magistrates are directed to draw up a list of ex-officio visitors from among the officials listed in Rule 3 of the said Rules and prepare a programme of visits for the Jails in their districts in such a way that each of the jail is visited each week by at least one member of the panel so drawn up.

(2) A copy of the annual visit programme so prepared shall be made available to the Superintendent of each jail to the IG Prisons, Ahmedabad, as well as to each of the offices from which the panel of ex-officio visitors is drawn up.

(3) The Collector and District Magistrates shall issue appropriate necessary instructions to all concerned for implementation of the visit programme as per the schedule prepared by him.

(4) Any failure in the implementation of the visit programme shall be brought to the notice of the Collector and District Magistrate by the Jail Superintendent who shall also inform the IG Prisons.

(5) The IG Prisons shall carefully monitor the default record and bring to the notice of Government all cases of chronic default so that Government may intervene appropriately to ensure compliance the purpose and the intent of the rules in so far as the programme of visits is concerned.

The receipt of this circular should be acknowledged.

(B.C. Yadav) Deputy Secretary to the Govt. of Gujarat, Home Department.

5. It may be stated with caution here that no doubt the issuance of above circular is indeed quite a right step in right direction, and yet at the same time the same by itself may not found to be "be all and end of the matter", achieving the desired object, goal. This we can very well feel and say so from our experience where though circulars after circulars are issued by the Government to the authorities concerned to spur-up the administration to make them upto date and efficient, yet many, many a time, we do find many of such circulars without entering into the head and heart to flow into action of the concerned officers they just lie unnoticed, unattended and found gathering dust on some stand in corner or corridor in office and ultimately instead the purpose for which they came to be issued not clicking at all wait as a paper scrap to be unceremoniously disposed of. Many a times, the Government rests simply contended "thus far and not further" with mere issuance of the circular without subsequently trying at all to check up and find out whether the solemn instructions given in the said circulars had in fact reached home duly implemented and complied with or not, and as a result even after issuance of the circulars situations remaining square-one not improving the least any further. Bearing in mind this quite disturbing disgusting experience, we once again impressed upon the Additional Chief Secretary that something further concrete in the nature of permanent workable arrangement was required to be made so as to constantly monitor the unfailing effective implementation of the arrangements by way of aforesaid circular. Not only that, but wherever and when the circular in question was found to be ignored, not implemented, immediate necessary departmental action was also required to be taken by way of the deterrent objective lesson to be taught to the concerned delinquents, setting them right in right frame of mind to correct their way to the disciplined behaviour as the public servant. Discipline in office is like the erect spine without which no administration can ever work with required efficiency. In this view of the matter, we once again directed the Additional Chief Secretary to submit a written report of the compliance of the directions given by this Court from time to time. Accordingly, on 29-1 -1996, the Additional Chief Secretary submitted the following report along with the aforesaid circular which is hereby ordered to be taken on record of these cases :

The following actions have been taken on the directions of the Court from time to time : A. Meeting and Consultations:

The undersigned had the following meetings and consultations in connection with the matter:

Date Place Present

1. 18-2-95 Gandhinagar R.D. Tahmane,

I.G. of Prisons.

P.G.J. Namputhiri,

Commissioner of

Police, Baroda City.

K.R. Kaushik,

Spl. I.G.P., Vado-

dara Range, Vado-

dara.

P.K. Datta,

Commissioner of

Police, Ahmedabad.

R. Benjamin,

Spl. I.G.P.(Admn.),

Ahmedabad.

P.C. Thakur,

D.S.P., Vadodara

2. 28-12-95 Gandhinagar Rural, Vadodara.

Vipul Mitra,

District Magistrate,

Ahmedabad.

H.C. Solanki,

D.I.G. Prisons,

Ahmedabad.

B.C. Yadav,

Deputy Secretary,

Sachivalaya,

Gandhinagar.

3. 30-12-95 Vadodara Collector, Vadodara,

Superintendent,

Vadodara Jail.

B. Correspondence :

1. D. O. letter addressed to Director General of Police, dated 5-1-96.

2. Report No. MKM-M-KA-47/1295/96, dated 16-1-96 from Commissioner of Police, Vadodara city.

3. Proposal from Director General of Police proposing transfer of 85 police personnel in the cadres of Armed Head Constables and Armed Police Constables respectively 18 and 67 in number working under jurisdiction of DIG Range Vadodara Rural to city Police, D.G.P.s letter Nos. 1-1536-Vadodara Shaher/Guard/68, dated 16-1-1996.

4. D. O. Letter No. JLK.1095/8229/J dated 22-1-96 from Additional Chief Secretary (Transport) dated 22-1 -96 from General of Prisons inviting the views of I. G. of Prisons on a draft circular to be issued to all concerned authorities and as to certain changes proposed to be made in the Gujarat Visitors of Prisons Rules, 1974.

5. Reply from I. G. Prisons to the above D. O. letter under his (sic) No. Jud/1/294/1996, dated 23-1-96.

C. Other Consultations :

Several rounds of consultations were also held with the Inspector General of Prisons on an ongoing basis. Three detailed briefings were also undertaken with the Minister in charge of Jails.

It will be observed from the above summary of action taken at various stages that due concern has been shown at all times for the concerns of the Court with regard to the matter before it and action was initiated immediately within two days of the first appearance of the undersigned in Court to come to grips with the problem and has continued on continual basis till the concluding appearance on 29-1 -96. The concern throughout has been to move the matter towards a resolution that would be to the satisfaction of the Court in the context in which it had declared itself to be viewing the matter before it, namely, the rights of prisoners in the legal and human rights sense and in that context their right to timely medical care and the obligation of the State to provide the same. In working on the matter and directing it towards a satisfactory resolution, wide-ranging consultations have been held at very high levels and all concerned Senior Officers of the State machinery have been involved in these consultations. A special visit was also made to Baroda to consult the Officers there. Scheduled meeting with the District Magistrates of several other Districts could not take place because of various constraints but some were consulted on telephone. The paper output of the exercises undertaken during this period has undergone several changes and improvements and has been several drafts. The final outcome of all these efforts is as submitted below.

D. Outcomes and Results :

1. In so far as the particular problem of Baroda city is concerned, Government have accepted the proposal of the Director General of Police and have issued orders under Government Resolution No. PGD-1396/211 /S, dated 18-1 -96 placing the services of 18 Armed Head Constables and 67 Armed Police Constables hitherto serving under the jurisdiction and control of Baroda rural to the jurisdiction and control of the Commissioner of Police, Vadodara city. This represents a substantial addition to the strength of the Baroda City Police and inasmuch as the entire complement so transferred is specifically assigned to guard duties, it is not expected that the Commissioner of Police, Baroda will now have any difficulty in providing escort for taking prisoners from the jail to Hospital for medical treatment.

2. On the general questions of making arrangement for ensuring that the health care aspect of prisoners do not suffer from neglect and that all cases of need are duly attended to in time, the following arrangements have been made :

(1) Government has approved changes in Rules 10(1), 12, and 14 so that the Collectors and District Magistrates who function as Chairman of the Board of Visitors under the Gujarat Visitors of Prisons Rules, 1974 are placed under statutory obligation to prepare an annual programme of weekly visits by visitors of jails in their Districts and regularly receive feedback and compliance reports from each visitor. With a view to providing for an in-built, systemic monitoring mechanism the proposed changes in the rules require every Superintendent of Jails to report any and all defaults in the visits programme to the Chairman of the Board of Visitors and to Inspector General of Prisons to enable them to take corrective action. The inspector General of Prisons is required by the proposed amended rules to report all cases of persistent default to the Government and the proposed amendments also require the Government to intervene effectively in all such cases of default so that the programme of visits takes place as intended by the rules. In this way, a built in trigger mechanism is provided to alert higher authorities when the system fails to work so that they may intervene to make it function as intended. The effect of the changes is to place greater responsibility at all levels starting from the Collector and District Magistrates of the District to Inspector General of Prisons, Superintendents of Jails and the Government itself in the matter of implementation of the rules. Along with greater responsibility, the Collector is also clothed with greater authority to give directions to Superintendents of Jails which the officers in charge of Jails are required to carry out. A monitoring systems is built into the rules themselves to ensure that the system works. The advantage of making these systemic provisions in the rules for a self-regulating and monitoring mechanism is that in the first place it is self-regulating and in the second place, being enshrined in statutory rules, it lends itself to judicial review in case of failure.

(ii) Pending the notification of the revised rules, a circular is proposed to be issued to all concerned authorities bringing the concerns of the Court to their notice and giving directions for the proper addressing of these concerns. Since the matter is sub judice before the Court, this circular will be issued after the Court has seen the same and consented to its issue. For this purpose a copy of the circular is annexed to this report. A copy of the Government Resolution dated 18-1-1996 transferring Police Staff from Baroda Rural to Baroda city is also annexed.

Sd/- (Kr. Fateh Singh Jasol) Addl. Chief Secretary to Govt. of Gujarat, Home Department.

6. We have also perused the report of the Medical Officer, Vadodara, wherein certain other difficulties are highlighted in matter of the medical treatment to the prisoners. They are-

(i) From 1-11-1995 the Medical Officers Class-II post is lying vacant.

(ii) The post of Jr. Pharmacist is lying vacant since last 6 months.

(iii) Despite the availability of the laboratory instruments, for want of technician, the same is lying idle.

(iv) Despite the specific orders, expert Doctors from SSG Hospital are not regularly visiting Jail.

6.1 The above report from the M. O., Vadodara has also made some good suggestions wherein over and above immediate compliance, filling up of the vacant posts arid directing strict compliance of expert Doctors from SSG Hospital regularly visiting Jail, it has been further suggested that (i) the additional post for the male nurse and female nurse for the female prisoners is required to be created. This is quite important and accordingly indeed a good suggestion which we are sure Government will immediately take into active consideration to do the needful at the earliest best.

6.2 The aforesaid grievances from the Jail Administration no doubt are quite serious but they are not such impossible unsurmountable one which if the Inspector General of Prisons evincing personal interest decides to set it right with the assistance of Additional Chief Secretary, Home Department, which we are sure, will do the needful within the shortest possible time. Till then, IG Prison shall pursue the matter relentlessly. If not done anything within reasonable time he can bring it to the notice of this Court for further orders.

7. We have carefully perused the above report. We quite appreciate the manner in which Kr. Fatesingh Jasol and Shri Tahmne in mutual consultation with eye to eye, head to head and heart to heart healthy attitude has attempted, tried to solve the prisoners problems. While taking a happy note of the assistance rendered by both the above officers in the present group of petitions and taking it on record, we also hope and trust that in future also the problems prejudicially affecting the prisoners in jail and overall jail administration would be immediately attended to and efficiently dealt with and effectively solved in the same spirit and manner in which it has been in the instant cases. Meaning thereby whenever any serious grievance is voiced by any convict-prisoner of his family members, and also for that purpose by jail authorities regarding the failing health requiring immediate attendance and treatment, and neglect of the same, Additional Chief Secretary, Home Department and IG Prisons shall treat the same as if notice issued to them from the High Court and help solve out the problem ruling out any cause for the affected persons/prisoners to move the High Court for redressal of grievances and reliefs for the purpose. In this regard, looking to the laudable manner in which we have been assisted, we are indeed further hopeful that Kr. Fatehsingh Jasol and/or his successor, Mr. R. D. Tahmne and/or his successor in office will do the remaining needful at their earliest possible best to eliminate the difficulties and sufferings of the ailing prisoners for want of police escort or on any other counts. Mr. R. D. Tahmne. 1C Prisons and/or his successor in office in particular will also take utmost care to see that the convict-prisoners are not neglected and denied immediate medical treatment bringing about a situation wherein the prison administration has no face-saving. We may incidentally also joint out that for any neglect in providing immediate medical treatment resulting into further deterioration of his health and/or he even succumbing to death for non-availability of police-escort, depending upon the facts and circumstances of each case. Government may ultimately stand responsible and accountable and in a given cases not ruling out even the liability to compensation. This compensation liability ultimately depending upon the facts and circumstances of the case can as well be personal upon the concerned fail and/or any other concerned Officer/s. who is ultimately found to be negligent by the Court. It is for this purpose that both the Additional Chief Secretary, Home and the 1. G. Prisons at the relevant time, will further take utmost care to see that the problems pertaining to the immediate medical treatment is attended to forthwith and solved at the earliest.

8. In view of the aforesaid observations, the Government is directed to implement the above circular and other recommendations, suggested in the above paras under caption "outcome and Results".

9. In the result, the aforesaid three Misc. Criminal Applications are allowed subject to the aforesaid observations. Rule made absolute.

10. The Registrar is hereby directed to forward a copy of this judgment and order to (1) Additional Chief Secretary Home; (2) Secretary, Legal Department, Gandhinagar; and (3) Director General of Prison, Gujarat State, Ahmedabad for information and necessary action to be taken in the light of the report and directions given pursuant thereto in this judgment, with the further request to acknowledge the receipt of copy of this judgment and order within 15 days from the date of its receipt.