The Supreme Court on Thursday set aside caste-based discriminatory provisions of prison manuals of around 11 States while deprecating the practice of distribution of work and segregation of prisoners in separate wards on basis of their castes. The top court also directed the states to amend their prison manuals within three months.

“State has a positive obligation to prevent such discriminations,” a bench comprising Chief Justice D Y Chandrachud and Justices JB Pardiwala and Manoj Misra held while issuing a slew of directions to abolish caste-based discrimination inside jails. “All such provisions are held to be unconstitutional. All the states are directed to make changes (in prison manuals) in accordance with the judgment.

“The references to habitual offenders shall be in reference to the habitual offender legislations and all such references of habitual offenders in state prison manuals are declared as unconstitutional if they are based on castes,” the CJI said while pronouncing the verdict in a packed courtroom. The top court also took suo motu cognizance of the instances of caste-based discrimination inside prisons and directed the apex court registry to list it with a title of ‘In re: Discrimination Inside Prisons” after three months.

The Chief Justice said the PIL challenged the provisions of state prison manuals on the grounds of them being discriminatory. The CJI said there are divisions of manual labour, barracks inside jails in some states on the basis of identity of the prisoners. “We have said that the criminal laws of the colonial era impacts even the post colonial period...The constitutional laws must uphold equality and dignity of citizens,” he said.

“We have also dealt (in the judgement) with the concept of emancipation, equality and the fight against caste-based discrimination and said it cannot be won overnight,” he said. This court is making a contribution to the ongoing struggle against caste- based discrimination and the judgement has dealt with aspects of non- discrimination under Article 14 (right to equality) under the Constitution, the CJI said.

Based on the analysis of the judgment certain anti-discrimination principles emerge and such instances can be both “direct, indirect” and stereotypes they can further such discriminations, he said. “State has a positive obligation to prevent the same and the courts have to adjudicate claims of indirect and systemic discrimination...Not providing dignity to prisoners is a relic of colonial period where they were dehumanised and the Constitution mandates that prisoners have to be treated humanely and prison system must be aware of mental and physical state of prisoners,” the judgement said.

The verdict said the states will be held liable if the prisoners are being made to do inhuman work and treated inhumanely. “Hatred and contempt towards the castes showed inherent and pervasive bias towards such castes. The colonial history indicates that social hierarchy was imbibed in their administration,” the CJI said.

Discrimination against the Scheduled Castes (SCs), Scheduled Tribes (STs) and the de-notified tribes have continued and the courts have to ensure there is implementation of protective legislations and ensure that marginalised people do not suffer, the judgement said.  “We have held that the Constitution recognizes that SCs, STs for protective discrimination....Castes cannot be used to discriminate against the marginalised ones,” the CJI said.

There cannot be such a discrimination between prisoners and their segregation based on their castes will not lead to their rehabilitation and such a practice does not survive the test of “intelligible differentia”, the verdict said.  “We have held that assigning cleaning and sweeping work to marginalised and assigning cooking to higher caste is nothing but violation of Article 15 (it forbids discrimination on grounds of religion, race, caste, gender, or place of birth or any of them),” the CJI said.

The bench referred to an Uttar Pradesh law which provides that a person undergoing simple imprisonment will not work in degrading and menial work unless his caste is used to do such jobs. “We hold that no group is born as a scavenger class or to do or not do menial jobs. The classes who can cook and who cannot cook are aspects of untouchability which cannot be permitted....Sweepers should be chosen from ‘chandal’ caste is nothing but entirely opposed to substantive equality and a facet of institutional discrimination.

“The prisoners shall not be permitted to undertake cleaning of sewers tanks in hazardous conditions,” it said while ordering that the police will have to work in earnest to deal with the cases of caste-based discriminations. The apex court had in January this year sought responses from the Centre and 11 states, including Uttar Pradesh and West Bengal, on a plea filed by Sukanya Shantha, a native of Kalyan in Maharashtra.