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After the enactment of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 and the repeal of the Criminal Tribes Act, 1971 and in light of Articles 14, 15, 21 and 23 of the Indian Constitution, what has been the Supreme Court judgment regarding casteist prison manuals and Rules?
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LONG— arguably too long— after caste-based discrimination was outlawed in India, it finally took a journalist's petition to bring the Supreme Court of India up to speed with the blatant caste discrimination in prison manuals and Rules in India.
Archaic terms and concepts such as "habitual offenders", "prison-cooks of suitable caste", "superior mode of living" and "communities accustomed to performing menial tasks" continue to populate the rules and regulations meant for prisoners in India, in stark contrast with the high pedestals of Article 14, 15, 21 and 23 of the Indian Constitution.
Even the repeal of the Criminal Tribes Act, 1871 or the enactment of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 seem to have had little impact on the language of prison manuals and Rules.
This is not to say that prisons in India are the last bastion of caste-based discrimination. It is pervasive and by many accounts on the rise in certain pockets of the country. However, despite the ground reality, official documents in India usually tend to favour a language of anti-caste discrimination.
In this context, when the Supreme Court of India on Thursday declared unconstitutional certain provisions of the prison manual and Rules perpetuating caste-based discrimination in jails, it must be seen as a significant course correction.
A Bench comprising Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justice J.B. Pardiwala and Justice Manoj Misra directed the Union government and all state governments to revise their prison manuals and Rules as per the ruling of the court.
“A Supreme Court Bench has directed the Union government and all state governments to revise their prison manuals and Rules as per the ruling of the court.
It also directed that the "caste" column and any references to caste in undertrial or convicts' prisoners' registers inside the prisons be deleted.
The Bench also took suo motu cognisance of the discrimination inside prisons on grounds such as caste, gender or disability. It has decided to monitor such cases. The Bench has also sought compliance reports from the Union and state governments in this regard.
The Bench was ruling on a petition filed by journalist Sukanya Shantha through advocate-on-record Prasanna S.
Rule 289(g) of the Uttar Pradesh Jail Manual, 2022 provides: "A convict sentenced to simple imprisonment … shall not be called upon to perform duties of a degrading or menial character unless he belongs to a class or community accustomed to perform such duties; but may be required to carry water for his own use provided he belongs to the class of society the members of which are accustomed to perform such duties in their own homes."
Rule 158 begins with the words: "Remission to convicts on scavenging duty: Subject to good work and conduct in jail, convicts of the scavenger class working as scavengers in jails…"
Rule 694 of the West Bengal Jail Code provides: "[I]nterference with genuine religious practices or caste prejudices of prisoners should be avoided."
Rule 741 states: "Food shall be cooked and carried to the cells by prisoner-cooks of suitable caste, under the superintendence of a jail officer."
Rule 793 provides: "The barber should belong to the A class. Sweepers should be chosen from the Mehtar or Hari caste, also from the Chandal or other castes, if by the custom of the district they perform similar work when free, or from any caste if the prisoner volunteers to do the work."
Rule 1117 states: "Any prisoner in a jail who is of so high a caste that he cannot eat food cooked by the existing cooks shall be appointed a cook and be made to cook for the full complement of men."
Rule 36 of the Madhya Pradesh Jail Manual, 1987 states: "While the latrine parade is being carried out, the Mehtars attached to each latrine shall be present, and shall call the attention of the convict overseer to any prisoner who does not cover up his dejecta with dry earth.
"The Mehtars shall empty the contents of the small receptacle into large iron drums and replace the receptacles in the latrine after having cleaned them."
Rule 26.69 of the Himachal Pradesh Prison Manual, 2021 states, "If there are no females of suitable caste for conservancy work, paid-sweepers shall be taken into the enclosure in charge of a warder and under conditions laid down in Paragraph 214."
It was argued by the petitioners that the offending Rules and provisions of the manuals violated Article 14 of the Indian Constitution. The Bench held that caste can be an intelligible principle of classification as it has been used to create protective policies for the marginalised castes. The Bench referred to Article 15(1) of the Constitution which recognises caste as a proscribed ground of discrimination.
“The Bench also directed that the "caste" column and any references to caste in undertrial or convicts' prisoners' registers inside the prisons be deleted.
The Bench thus observed that caste can be a ground for classification as long as it is used to grant benefits to the victims of caste discrimination.
"Any use of caste as a basis for classification must withstand judicial scrutiny to ensure it does not perpetuate discrimination against oppressed castes. While caste-based classifications are permissible under certain constitutional provisions, they are strictly regulated to ensure they serve the purpose of promoting equality and social justice," the Bench ruled.
From precedents, the Bench observed that the classification of prisoners has been considered both from the point of view of security and discipline as well as reform and rehabilitation. This has been the objective. But there is no nexus between classifying prisoners based on caste and securing the objectives of security or reform.
The Bench ruled that the inmates are entitled to fair treatment that promotes rehabilitation and classification of any kind must be geared towards this objective.
"Segregating prisoners on the basis of caste would reinforce caste differences or animosity that ought to be prevented at the first place. Segregation would not lead to rehabilitation," the Bench held.
The Bench also observed that discipline could not be secured at the altar of violation of fundamental rights and correctional needs of inmates. Prison authorities ought to be able to tackle perceived threats to discipline by means that are not rights-effacing and inherently discriminatory, the Bench averred.
The Bench also said the differentia between inmates that distinguishes on the basis of "habit", "custom", "superior mode of living", and "natural tendency to escape", etc., is unconstitutionally vague and indeterminate.
These terms and phrases, the Bench ruled, do not serve as an intelligible differentia that can be used to demarcate one class of prisoners from the other. These terms have resultantly been used to target individuals from marginalised castes and denotified tribes.
The Bench thus ruled that provisions that discriminate among individual prisoners based on their caste specifically or indirectly by referring to proxies of caste identity are violative of Article 14 on account of invalid classification and subversion of substantive equality.
The Bench also found the offending provisions and Rules discriminatory against marginalised castes and acting to the advantage of certain castes.
“The Bench was ruling on a petition filed by journalist Sukanya Shantha through advocate-on-record Prasanna S.
"By assigning cleaning and sweeping work to [individuals] of the marginalised castes, while allowing the [individuals] of high castes to do cooking, the manuals directly discriminate. This is an instance of direct discrimination under Article 15(1)," the Bench held.
The Bench also ruled that the offending Rules also suffer from indirect discrimination by using broad terms which act to the disadvantage of the marginalised castes.
"Phrases such as 'menial' jobs to be performed by castes 'accustomed to perform such duties' may appear to be facially neutral, but refer to marginalised communities, given the history of systemic discrimination against them. Such indirect usages of phrases, which target the so called 'lower castes', cannot be permitted in our constitutional framework," the Bench held.
The Bench also held that by assigning specific types of work to marginalised castes based on their supposed 'customary' roles, the manuals perpetuate the stereotype that people from these communities are either incapable of or unfit for more skilled, dignified or intellectual work.
The Bench also held that offending Rules reinforce stereotypes against identified tribes. It observed that the tendency to treat individuals of denotified tribes as habitual to crime or having bad character reinforces a stereotype, which excludes them from meaningful participation in social life.
"When such stereotypes become a part of the legal framework, they legitimise discrimination against these communities. Members of denotified tribes have faced the brunt of colonial caste-based undertones of discrimination against them, and the prison manuals are reaffirming the same discrimination.
"Discrimination against denotified tribes is prohibited under the ground of 'caste' in Article 15(1), as the colonial regime considered them as belonging to separate hereditary castes," the Bench held.
The Bench was referring to different state manuals that reinforce stereotypes against identified tribes. For example, Rule 404 of the West Bengal Jail Code provides that a convict overseer may be appointed to be a nightguard provided that "he does not belong to any class that may have a strong natural tendency to escape, such as men of wandering tribes".
“Rule 741 states: "Food shall be cooked and carried to the cells by prisoner-cooks of suitable caste, under the superintendence of a jail officer."
The Madhya Pradesh Jail Manual, 1987 permits the classification of habitual and non-habitual criminals, where habitual criminals are described as those who are "by habit members of a gang of dacoits, or of thieves or a dealer in slaves or in stolen property", even if no previous conviction has been proved.
Also, any individual born into a denotified tribe may be treated as a habitual criminal, subject to the discretion of the state government.
Similarly, Rule 217 of the Andhra Pradesh Prison Manual, 1979 Rule 219 of the Tamil Nadu Prison Manual, 1985, and Rule 201 of the Kerala Prison Rules, 1958 classify as "habitual criminals" those who are by "habit" "robbers, housebreakers, dacoits, thieves or receivers of stolen property" or "habitually commit extortion, cheating, counterfeiting coin, currency notes or stamps or forgery", even if "no previous conviction has been proved, that they are by habit members of a gang of dacoits, or of thieves or dealers in stolen property".
The Andhra Pradesh Prison Manual also paints "a member of a wandering or criminal tribe" with the same brush as that of "a bad or dangerous character, or [one who] has, at any time, escaped of attempted to escape from lawful custody", and prohibits their employment on any labour outside the walls of the prison, or to be permitted to pass out of the prison for employment.
The Bench noted that the notion that an occupation is considered as "degrading or menial" is an aspect of the caste system and Untouchability. It noted that the caste system rigidly assigns certain tasks to specific communities based on birth, with the 'lowest' castes being relegated to tasks considered impure or unclean, such as manual scavenging, cleaning and other forms of physical labour.
"That a person belonging to such a community is accustomed to performing menial tasks is a mandate of the caste system. Similarly, the reference to 'scavenger class' is a practice of the caste system and Untouchability.
"No social group is born as a 'scavenger class'. They are forced to undertake certain jobs that are considered 'menial' and polluting based on the notions of birth-based purity and pollution," the Bench ruled.
The Bench ruled that the provision that food shall be cooked by members of a "suitable caste" reflects notions of Untouchability, where certain castes are considered suitable for cooking or handling kitchen work, while others are not. Besides, the division of work on the basis of caste is a practice of Untouchability prohibited under the Constitution.
The Bench observed that Article 21 envisages the growth of individual personality. Caste prejudices and discrimination hinder the growth of one's personality. On this basis, the Bench declared that Article 21 provides for the right to overcome caste barriers as a part of the right to life of individuals from marginalised communities.
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It added that when prison manuals restrict the reformation of prisoners from marginalised communities, they violate their right to life. At the same time, such provisions deprive prisoners from marginalised groups of a sense of dignity and the expectation that they should be treated equally. When prisoners from marginalised communities are subjected to discriminatory practices based on caste, their inherent dignity is violated.
“It was argued by the petitioners that the offending Rules and provisions of the manuals violated Article 14 of the Indian Constitution.
The Bench also struck the offending provisions for being violative of Article 23 in that it proscribes forced labour. The Bench noted that several provisions of different prison manuals impose a restriction on labour of certain communities in that these communities are allowed to undertake only one kind of labour. "Menial" jobs are prescribed to be performed by those communities who have been "accustomed" to performing such duties.
The Bench held that such provisions often lead to an unfair distribution of labour within the prison system, with persons from specific communities performing 'honourable' tasks, while those from marginalised communities are forced into undesirable work.
It went on to add that the provision that "food" shall be cooked by prisoner-cooks of "suitable caste" empowers the jail officer to discriminate against the marginalised castes. At the same time, it takes away the opportunity of individuals born into marginalised castes to cook food.
"The imposition of cleaning latrines and sweeping work to only 'Mehtar, Hari caste or Chandal' or similar castes is forcing only a type of work, which is considered low-grade, upon them. Imposing labour or work, which is considered impure or low-grade, upon the members of marginalised communities amounts to 'forced labour' under Article 23," the Bench held.
The Bench added that forcing marginalised caste inmates to perform tasks like cleaning latrines or sweeping, without providing them any choice in the matter and based purely on their caste, constitutes a form of coercion.
The Bench flagged that the Model Prison Manual, 2016 defines "habitual offender" as "a prisoner classified as such in accordance with the provisions of applicable law or Rules."
It noted that the "habitual offender" in several prison manuals refers to people from denotified or wandering tribes.
The Bench thus said this definition cannot be left to be interpreted and applied "in accordance with the provisions of applicable law or Rules", otherwise, what it will end up doing is to classify and separate people from denotified tribes in prisons without any basis.
The Bench also flagged that the manual does not explicitly prohibit physical caste-based segregation of prisoners, except in prisons for women.
“The Bench also observed that discipline could not be secured at the altar of violation of fundamental rights and correctional needs of inmates.
The Bench thus observed that the 2016 manual should have adopted a specific provision prohibiting the classification of prisoners on the basis of caste for all prisoners, as it does in the case of women prisoners.
The Bench also flagged that the manual does not prohibit division of work on the basis of caste, except in cooking. The Bench said various prison manuals in different states specify different work to people on the basis of caste.
The 2016 manual, the Bench said, should have taken into account such practices and provided specifically for their prohibition.
It also noted that the 2016 manual does not refer to the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, which prohibits manual scavenging.
The Bench clarified that the 2013 Act has a binding effect everywhere in the country, including in prisons. The Bench also directed that no special treatment should be given to any group of persons or individuals on the basis of caste in any scenario.
The Bench also flagged the continued targeting of denotified tribes. The Bench observed that the "habitual offender" legislations were enacted to replace the Criminal Tribes Act, 1871.
However, in states such as Rajasthan, they were used to refer to members belonging to criminal tribes or denotified tribes. Applying that logic, several prison manuals and Rules have also referred to "habitual offenders" to mean members of denotified tribes or wandering tribes.
“"It would not be wrong to say that the classification of 'habitual offender' has been used to target members of denotified tribes," the Bench said.
"It would not be wrong to say that the classification of 'habitual offender' has been used to target members of denotified tribes," the Bench said.
The Bench warned state governments that the classification of a "habitual offender" is constitutionally suspect, given the vague and broad language various laws and rules have employed, which is used to target the members of denotified tribes.
It has directed the state governments to reconsider the usage of various habitual offender laws, i.e., to examine anew whether such laws are needed in a constitutionally governed system.
Click here to read the order.
