Scholars in Conversation l Justice (Dr.) S. Muralidhar with Radhika Chitkara and Pranav Verma

The ‘Scholars in Conversation’ series features interviews with academics across diverse disciplines and geographies. Anchored by NLSIU faculty members, these conversations explore the work of leading voices in their fields in order to bring academic insights to bear on public discourse.

Justice (Dr.) S. Muralidhar visited NLSIU on 14 March 2025 to deliver a lecture titled ‘Caste in Prisons: A Judicial Unravelling’ on the recent Supreme Court judgement in Sukanya Shanta v. Union of India, organised by the Ford Foundation Chair on Public Interest Law at NLSIU. Radhika Chitkara, an editorial board member of the National Law School Journal, and Pranav Verma, affiliate faculty, Ford Foundation Chair on Public Interest Law, sat down with the former judge for an extended conversation on criminal justice, prisoners’ rights, and legal aid. The conversation attempts to thread together themes of public interest in his long career, first as an advocate and legal aid lawyer, then as a high court judge, and now, as a designated senior advocate in the Supreme Court. Following is an edited excerpt of this conversation.

The court’s intervention in Sukanya Shanta demonstrates the active role courts can play in addressing systemic caste-based discrimination in society. Such interventions have, however, invited criticisms of ‘judicial overreach’ in the past. These criticisms speak to one of the most abiding dilemmas of constitutionalism, globally—on the function and scope of judicial review. What, according to you, is the function and scope of judicial review under the Constitution of India?

Let me respond to this question in the context of our discussion, which is prisons. These have historically been rule-bound institutions, and this has been the case since the colonial legal system, which in some ways continued the Mughal-Maratha systems. Within this rule-bound system, we had the advent of the Constitution in 1950, necessitating a reconciling of established legal procedures with constitutional mandates. The AK Gopalan case (1950) was one of the earliest encounters of this linkage between the Constitution, the courts, and the criminal justice system. This began the judicial reckoning of constitutionalising provisions such as the Defence of India Rules and prison conditions, and it took the court at least two decades, until the RC Cooper case (1970), to move out of the framework of a rule-bound system not subservient to the constitutional framework. In that sense, it took us two decades to acknowledge that Article 21 is untrammelled by these rules.

I set out this context because it is fascinating that operating within a rigid rule-bound system, we have this often less-discussed case of Prabhakar Pandurang (1965), which comes in just as we are exiting the twilight of the first emergency of the Chinese aggression in 1962. Yet, we have here a high court ruling that liberally constructs the Defence of India Rules to hold that they do not prohibit a prisoner from sending out a dissertation from jail for printing. The court reaches this conclusion only upon an examination of the rules, what they permit, and what restrictions the text of such rules impose. Justice Subba Rao accepts the contention that the rules in their text do not permit the wide sweep of prohibitions claimed by the prison authorities and that a restriction cannot go beyond the black letter of the law, before allowing the prisoner to send out the thesis for publication. We have another instance in the Bhuvan Mohan Patnaik case (1974). The petitioners here challenged the act of the prison authorities in putting up barbed wire electrical fencing to prevent prison breaks. Even as the court dismissed the petition, it held through a neat reading of Article 21 that no infringement on a fundamental right can be made in excess of the procedure established by law. Further, in Sunil Batra I (1978), Justice Krishna Iyer quotes from Prabhakar Pandurang‘s and Bhuvan Mohan Patnaik‘s formulations.

So, one may trace the evolution of a progressive Article 21 jurisprudence from Prabhakar Pandurang to Bhuvan Mohan Patnaik, and then to Sunil Batra. This is useful to remember since, in our collective imagination, the dawn of freedom in judicial enunciations appears to come only with Maneka Gandhi in 1978; however, incremental gains had already been in motion before that.

Now, coming to judicial activism in this context, I would think that all these cases are instances of judicial conservatism; there is no activism involved here at all. These illustrate a conservative approach—to put the text of the rules alongside the text of the Constitution and get the result on the validity of the impugned action. If one was being conservative in their approach to these cases, one would read the Constitution for what it was, and that is what the judges in these cases did. You didn’t need some sleight of hand or an innovative interpretive approach to reach the conclusion that these cases did. They were based on a textual reading of the provisions and the Constitution. I would categorise even the Sukanya Shanta judgement likewise, where the court was examining the classifications made in the text of the prison rules and evaluated them against constitutional standards. I would think that it is a low-hanging fruit for courts to say that prison conditions are inhuman if there is over-crowding in prisons or there is a lack of medical assistance for inmates. These are not instances of judicial activism at all, but of the judiciary doing what it is supposed to be doing in the first place, at the bare minimum.

You speak insightfully about a rule-bound prison system. Recent writings by political prisoners have revealed to us the face of prisons as a system of governance in which prison officials wield considerable discretionary authority over prisoners. How do we reconcile this scope of discretionary authority with a rule-bound system?

There are both written and unwritten rules in prisons, and the latter constitute a parallel system. This is true for society as well. In fact, violations of unwritten rules carry stricter enforcement at times—you cross the caste barrier and the khap panchayat will mete out the most violent penalties against you. In the context of prisons, the wide ambit of discretion available with prison authorities enables them to exercise their powers as they deem fit. This is particularly problematic since while written codes can be compared on the anvil of the Constitution and be delegitimised or illegalised, unwritten codes—in societies as well as in prisons—are not governed by the Constitution.

Michel Foucault’s Discipline and Punish is some kind of a bible for understanding the logic of prisons and how they operate. He argues that prison structures are meant to control human bodies and make them docile. I would say that is the goal towards which the unwritten rules are directed. The authorities, in the process, acquire unbridled power over such bodies and can make them do whatever they want without accountability, in the name of security and peace. It makes one understand why prison authorities have this kind of power over inmates. They are further aided by the law, which requires ‘good behaviour’ guarantees for determining distribution of privileges, such as who gets sent to open prisons, who gets a furlough, etc. In fact, prisons then emerge as complete zones of control. Thus, I find Foucault’s articulations useful to understand prison structures in practice even today. In fact, Foucault, writing in the 20th century with some optimism, believed that prison structures were moving away from inflicting physical pain to more effectively controlling the minds of prisoners. However, in India, even now, we very much look at physical pain as an integral part of prison structures. There is, for instance, a certain sadism involved in denying a sipper to Stan Swamy, who was suffering from Parkinson’s. Our current prison systems and the manner of control our prison authorities exercise in 2025—through rules written and unwritten—might want to make Foucault re-visit his optimism.

In Sukanya Shanta, when representing the petitioner, you argued that the Model Prison Manual 2016 cannot redress caste discrimination. You also brought attention to the category of the ‘habitual offender’, which carries forward into constitutional India the colonial-casteist category of ‘Criminal Tribes’, even though they have formally been denotified by law. How do prisons and prison manuals treat ‘habitual offenders’?

When you look at the Pardhis, they are ghettoised in Bhopal. Likewise, I’m told every such city has its own colonies that ghettoise nomadic tribes. For instance, the Chharas in Ahmedabad, the Banjaras in Telangana. You find them even under the flyovers in Delhi. The lives of people in these ghettos are criminalised—every time there is a crime, the police enter these colonies and pick up their men on suspicion. These colonies were formed during British times and have continued. Legal scholar Usha Ramanathan has, in her writings, spoken of shifting people—in the pretext of the city’s development—from zones of legality to zones of illegality. The erstwhile so-called ‘Criminal Tribes’ reside wherever they are peacefully and don’t look to the state for anything. But the state declares overnight that their dwelling is illegal. Thereafter, everything one does in a zone of illegality is a crime or an illegal activity. And worse, people who live in a zone of illegality are presumed to be criminals merely because they live there. This is the geography of injustice. The law makes them prisoners wherever they are without formally pushing them to prisons. And there is a revolving door there.

For the first time, Sukanya Shanta frontally acknowledges that this understanding of ‘habitual offenders’ has to change and that it cannot be an inter-generational inheritance. In prisons, it is the prejudice of law that seeps in through osmosis. So, the judgement points out that not only the Model Prison Code of 2016 but even the Model Act of 2023 continues to define habitual offenders in a manner that retains the appellation of denotified ‘Criminal Tribes’. This is a disturbing part of our written law, which has been halted by Sukanya Shanta. I don’t think anybody is so naive as to believe that this judgement is like a magic wand that would suddenly change the behaviour of the police or the prison authorities. That is going to take a long time. The judgement serves to keep the issue alive and as a subject matter of discussion and debate.

As you state, Sukanya Shanta is the starting point; it doesn’t mean that there will be systematic reforms overnight. In your view, what further action is needed to ensure that the guidelines issued in the matter are enforced and, in the long-term, the gains made inside the courtroom are sustained?

Sukanya Shanta only tells us the obvious. As petitioners, we insisted that the court keep the matter alive to ensure compliance of its orders by the different state actors. This is the stage at which we are presently.

I also admit that a continuing mandamus of this nature can only go so far. In our country, the moment one hears someone’s surname, it registers something in the mind. Where one is from and one’s parentage enable easy identification of one’s caste. There are many structural barriers to be broken. Whenever we have lectures on the Prevention of Atrocities Act in a judicial academy, most of the judicial officers say that they do not practise discrimination, that they have tea with their peers irrespective of their backgrounds, etc. What they perhaps don’t acknowledge is that historical injustices do not get erased through these episodic gestures of a few individuals. The judgement in Sukanya Shanta tells us that we live in an ambience of discrimination and pushes us to acknowledge that we discriminate.

In fact, even here I think persons from marginalised communities have a legitimate grouse, that somebody like myself from a privileged class has to be speaking for them for the issue to be noticed. They justifiably ask: when will our voices be acknowledged by the law? So, we still have a long way to go to have the kind of egalitarian society that Ambedkar was talking about.

As an advocate in the 1980s and 90s, you were an active part of the legal aid movement, which was also the subject of your doctoral dissertation. And as a judge, you have viewed legal aid institutions in India from a different vantage point. What interventions are needed to secure quality legal aid of choice for all? What role do law schools generally, and the national law universities specifically, need to play in such interventions?

Legal aid in our country is different from legal aid in other countries, in that it is not an initiative of the lawyers but of the state. The bar generally views legal aid as charity and not as the right or entitlement of the person in need of legal services. You might find some exemplars at the bar who have done remarkable  pro bono work in addition to their paid practice or as amicus curiae. But the idea of offering legal aid is not a natural sentiment as far as the bar in India is concerned. India is perhaps the only country where even the poorest litigant is statutorily required to contribute to the welfare of the lawyer. The Advocates Welfare Fund Act 2001 makes it mandatory for an Advocates’ Welfare Stamp to be affixed on every vakalatnama filed in every court. In some states you even have a Senior Advocates Welfare Fund.

In the past, whenever I was asked to speak to lawyers on access to justice and legal aid, there would invariably be a lawyer or two asking: ‘What about legal aid for lawyers?’ There are many lawyers who live hand to mouth, whose families suffer, who are below the poverty line. The Bar Council enrolment fee is the highest.

In this kind of scenario, where do you need legal aid most? Definitely in the magistrate’s courts, in the juvenile justice courts. What is the cross-section of lawyers there? There are lawyers who argue for a bail for Rs 500.

The way in which it is presently structured, legal services authorities are seen as an extension of the formal court system itself. This is both its strength and weakness. It is a weakness because there is general distrust of it by the litigant, as much as there is distrust of the court. It is somewhat like the public distribution system not being the favoured choice when one is in need of quality food. It is important to break through that distrust, for which we need more lawyers with commitment to enter the legal aid system, with not just idealism but also sensitivity.

What role can law schools play here?

Visits to penal custodial institutions are a must. Now more and more people are visiting prisons, but it’s a struggle to access these institutions. University clinics are important places for learning. Every law student must experience it, at least once. One should learn to talk to prisoners in the language they understand. It cannot be treated as just another project or fieldwork. It requires involvement. Human rights work is political work. It is not pure legal work. If it is going to change you, let it.

About the Authors

Justice (Dr.) S. Muralidhar (retired) is a designated senior advocate of the Supreme Court of India and a former chief justice of the High Court of Orissa.

Radhika Chitkara and Pranav Verma are assistant professors of law at the National Law School of India University, Bangalore.