ORDER: Looking to the complex factual and legal issues involved in the matter, learned counsel Mr. Farzand Ali was requested to act as an Amicus Curiae for assisting the Court. By way of this parole writ petition, the petitioner Khayali Devi w/o late Shri Devilal Menaria mother of the convict Bhanwarlal lodged at Central Jail, Udaipur has approached this Court with a prayer to direct the respondents to consider the case of her son, the convict Bhanwarlal for being sent to the Open Air Camp. It is asserted in the parole writ petition that the jail authorities have arbitrarily without following the procedure provided in the Rajasthan Prisoners Open Air Camp Rules, 1972 imposed unjustified jail punishment upon her son. The petitioner has also pleaded in the writ petition that the jail authorities are deliberately misusing their powers for oblique motives and spoil the record of the convicts who do not satisfy their illegal demands. The respondents have filed a reply to the writ petition wherein there is no emphatic denial of the assertion made by the petitioner that the procedure provided under the Rules of 1972 was not followed before imposing jail penalty on the convict. It is only mentioned in the reply that while awarding jail penalty upon the convict, complete and transparent procedure was adopted. However, the details of the procedure adopted are not reflected in the reply. It is further mentioned in the reply that the last prisoner sent to the Open Air Camp had served 7 years 10 months and 15 days sentence with remission and the convict Bhanwarlal had also served 7 years 10 months and 15 days with remission as on 31.12.2014. As per Rule 6(a) of the Rajasthan Prisoners Open Air Camp Rules, 1972 (hereinafter in short the Rules of 1972) the prisoners are entitled to be sent to the Open Air Camp in the order of seniority calculated by the period of imprisonment suffered. It is further asserted in the reply that since the convict had earned a jail penalty within the preceding two years, therefore, as per Rule 3 of the Rules of 1972 he is not entitled to be sent to the Open Air Camp. As the reply was vague in particulars, the original record was summoned and has been produced by Mr. Narendra Kumar Swamy, Dy. Jailor, Kota. Heard learned Amicus Curiae Mr. Farzand Ali, Mr. As the reply was vague in particulars, the original record was summoned and has been produced by Mr. Narendra Kumar Swamy, Dy. Jailor, Kota. Heard learned Amicus Curiae Mr. Farzand Ali, Mr. K.K.Rawal, learned P.P. and perused the material available on record as well as the relevant Rules. In order to verify the probity of the rival assertions, the original jail record of the prisoner was summoned and perused with the assistance of Shri Farzand Ali Amicus Curiae. Learned counsel Mr. Farzand Ali ably assisting the Court urged that the manner in which the authorities imposed jail penalty on the convict is totally arbitrary and illegal. He points that under Rule 1 of the Rajasthan Prisons Rules, 1951 (hereinafter in short as Rules of 1951), 43 violations are enumerated as prison offences. The convict Bhanwarlal has been held guilty of infringing Sub-rule 43 of Rule 1 inasmuch as he allegedly did not attend the workshop. He submits that though Rule 3 of the Rules provides a distinction between minor and serious jail offences but no guideline has been provided in the Rules for categorization of the infringements enumerated in the Rules vis-à-vis the nature of the penalty to be inflicted i.e. minor or major. He contends that in the case at hand, the jail authorities imposed a punishment of forfeiture of remission for five days on the convict which as per Rule 5(2)(ii)(a) of the Rules of 1951 would be a major punishment. He contends that before imposing a major punishment on the convict, the authorities were required to follow the mandatory procedure prescribed in Rule 8 of the Rules of 1951 which they failed to do. Since a major punishment was imposed on the convict as per this Rule, the offence would be treated as falling in a serious offence and the names of the witnesses proving the offence are necessarily required to be recorded in the prescribed column provided in the punishment register. The date on which the punishment is inflicted is also required to be entered both on the history ticket and in the register. He urges that it is evident from the original record of the convict maintained by the jail authorities that neither the names of the witnesses proving the offence were recorded in the prescribed column of the register nor was the punishment entered in the register. He urges that it is evident from the original record of the convict maintained by the jail authorities that neither the names of the witnesses proving the offence were recorded in the prescribed column of the register nor was the punishment entered in the register. Thus, he submits that the punishment of forfeiture of remission for five days imposed on the convict for the alleged offence of not attending the workshop is grossly illegal and deserves to be quashed. Mr. Narendra Kumar Swami, Dy. Jailor, Kota where the convict was lodged at the time when the punishment was imposed on him is present in the Court with the record. After referring to the record he admits that it is correct to say that the names of the witnesses for proving the offences were not entered in the column provided in the register nor was the punishment entered in the punishment register maintained at the jail. The Rajasthan Prisoners Open Air Camp Rules, 1972 particularly Rule 3 thereof lays down the criterion for the prisoners who are to be treated ineligible for being sent to open air camp. As per Rule 3(g) of the Rules of 1972 a prisoner whose conduct in jail is not good is ineligible for admission to open air camp. However, even a prisoner whose conduct is not good, if he does not receive a jail punishment for two years preceding the date of the recommendation of his name for admission to the open camp would become eligible for being considered to be sent Open Air Camp. Sub-rule 1 to 43 of Rule 1 of the Rajasthan Prisons Rules, 1951 defines various kinds of jail offences. Under Sub-rule 43 disobeying any lawful order of an officer of the prison or omitting or refusing to perform duties in the manner prescribed is a jail offence. Further categorization of the offences into minor and serious offences is made under Rule 3 of the Rules of 1951 which lays down that a prison offence shall be deemed to be a minor offence when it is dealt with by a minor punishment and a serious offence when dealt with by a major punishment. The rule is apparently highly anomalous. The proposition postulated in the Rule that the nature of offence would be governed by the nature of punishment awarded is perplexing and incomprehensible. The rule is apparently highly anomalous. The proposition postulated in the Rule that the nature of offence would be governed by the nature of punishment awarded is perplexing and incomprehensible. The ambiguous provisions of the Rules give unfettered and arbitrary powers to the jail authorities regarding the manner in which the infringements are to be dealt with. However, since the validity of the Rule is not under challenge, this Court refrains from making any comments thereupon. Rules 4 and 5 of the Rules of 1951 have material bearing for deciding the controversy raised in this petition and are reproduced hereinbelow for the sake of ready reference:- “4. Punishment of prison offences by loss of privileges admissible under remission system.-For a prison offence any of the following punishments involving loss of privileges admissible under the remission system may be awarded:-(a)Forfeiture of remission earned; (b)Temporary Forfeiture of class, grade or prison privileges; (c)Temporary or permanent reduction from a higher to a lower class or grade; (d)Temporary or permanent exclusion from the remission system; Provided that no order directing the forfeiture of remission in, excess of one month shall take effect without the previous sanction of the Inspector-General. 5. Classification of minor and major punishments.-The punishment that may be awarded for prison offences are classified as minor and major punishments as follows:- (1) Minor punishments ;- (i) Formal warning; (ii) Change of labour for a stated period to some more irksome or severe form ; (iii) Forfeiture or remission earned, not exceeding four days; (iv) Forfeiture of class, grade or prison privileges for a period not exceeding three months ; (v) Temporary reduction from a higher to a lower class or grade; (vi) Penal diet with or without cellular confinement not exceeding 48 hours; (vii) Cellular confinement for not more than 7 days; (viii) Separate confinement for a period not exceeding fourteen days; (ix) Imposing of hand-cuffs, otherwise than by handcuffing a prisoner behind or to a staple; (x) Imposition of link fetters for a period not exceeding 30 days; and (xi) Substitution of gunny or other course clothing for the portion of the ordinary prison dress which is not woollen. (2) Major punishments :- (i) Hard labour for a period not exceeding seven days in the case of prisoners not sentenced to rigorous imprisonment; (ii) (a) Forfeiture of remission earned, exceeding four days but not exceeding one month; (b) Forfeiture of remission earned, in excess of one month; (c) Forfeiture of class, grade or prison privileges for a period exceeding three months; (d) Exclusion from the remission system for a period not exceeding three months; (e) Exclusion from the remission system for a period exceeding three months; (f) Permanent reduction from a higher to a lower class or grade; (iii)…… (iv) Separate confinement for a period exceeding 14 days; (v) Link-fetters, if imposed for more than 30 days; (vi) Bar fetters; (vii) Cross-bar fetter; (viii) Hand-cuffing behind or to a staple; (ix) Penal diet combined with cellular confinement for more than 48 hours; (x) whipping; and (xi) Any combination of minor punishments admissible under section 47 of the Prisons Act. Note 1-The major punishments (ii)(d) and any combination of the major punishments (ii)(b), (ii)(c) and (ii)(e) shall not be inflicted without the previous sanction of the Inspector-General of Prisons. Note 2-The following punishments shall not be carried out in combination even when awarded at different time for different offences:- 1. Penal diet with whipping; 2. Penal diet with standing hand-cuffs; 3. Standing hand-cuffs with cross-bar-fetters; and 4. cross-bar-fetters with bar fetters. The prisoner Bhanwarlal allegedly remained absent from the workshop between April to June 2014 and was inflicted with a punishment of forfeiture of remission for a period of five days which is a major punishment as per Rule 5(2)(ii)(a). Under Rule 8 of the Rules of 1951 every infringement of jail rules is to be brought to the notice of the superintendent, who is empowered to decide whether the infringement reported was committed in such circumstances e.g. willful or without excuse, so as to constitute an offence. If the Superintendent is of opinion that the infringement of rule was committed through ignorance or excusable carelessness, he is required to admonish the prisoner and dismiss the charge without recording it in the punishment Register. But if he finds it to be an offence, he shall award some punishment, and have it recorded on the history ticket, and shall have the entries made in the punishment Register as well, on the same day, giving all details required by the rules. But if he finds it to be an offence, he shall award some punishment, and have it recorded on the history ticket, and shall have the entries made in the punishment Register as well, on the same day, giving all details required by the rules. Rule 8 further postulates that in the case of every serious offence, the names of the witnesses proving the offence shall be recorded in the column provided for that purpose. The date on which the punishment is inflicted shall also be entered both on the history ticket and in the register. The respondents in their reply have alleged that the prisoner was detained at the Central Jail, Kota from April, 2014 to June, 2014 and during this period he remained absent from jail workshop and was awarded penalty by way of depriving him remission of five days. Two questions arises for the Court’s consideration in this matter; (i) whether the respondent authorities were justified in imposing the jail punishment of deprivation of remission for a period of five days on the convict and (ii) whether owing to such punishment, the convict’s entitlement for admission to the Open Air Camp can be curtailed. On going through the Rules referred to above particularly Rule 3, 4, 5 and 8 of the Rules of 1951, it is evident that when a jail infringement is reported to the Superintendent, he has to decide whether the infringement committed was willful or without excuse so as to constitute an offence. Thus, before subjecting a prisoner to a jail punishment, the Superintendent has to decide as to whether or not the infringement was deliberate and intentional. For this purpose some kind of explanation must be taken from the prisoner which was not done in the case at hand. That apart, the date of infliction of punishment has to be entered in the history ticket and in the punishment register. In case of serious offence, the names of the witnesses proving the offences are to be recorded in the column provided for the purpose. The category under which the offence would fall ; minor or major is dependent on the nature of punishment awarded which is totally arbitrary and thus the provisions suffer from a serious anomaly in this regard. Be that as it may. The category under which the offence would fall ; minor or major is dependent on the nature of punishment awarded which is totally arbitrary and thus the provisions suffer from a serious anomaly in this regard. Be that as it may. While inflicting any category of punishment on a convict be it minor or major, the detail and the date thereof are required to be recorded in the history ticket as well as in the punishment register. It is admitted position from perusal of the record that the factum of infliction of punishment on the convict Bhanwarlal was not entered in the punishment register. Since the punishment inflicted on the convict was of forfeiture of remission exceeding four days, it is covered by the definition of major punishment as per Rule 5(2)(ii)(a) of the Rules of 1951, and therefore, the punishment along with the names of the witnesses proving the offence were required to be recorded in the column provided for the purpose. Admittedly, this was not done. In this background, the jail authorities were totally unjustified in inflicting the punishment of forfeiture of remission of five days upon the convict and consequently, the punishment cannot be allowed to stand. Indisputably since, the convict had completed 7 years 10 months and 15 days on 31.12.2014 and as the last prisoner recommended for the Open Air Camp had also earned the same priority in reference to the length of sentence suffered, the convict Bhanwarlal also became entitled for being considered to be sent to Open Air Camp. Consequently, the writ petition deserves to be allowed and is hereby allowed. The punishment of forfeiture of five days remission imposed on the convict by the Superintendent, Central Jail, Kota vide noting dated 2.7.2014 is quashed. The respondent authority shall forthwith take up the petitioner’s case for being sent to Open Air Camp by ignoring the said punishment of forfeiture of remission of five days against the convict Bhanwarlal. Necessary order in this regard shall be passed within six weeks from today. The Court expresses its appreciation for the assistance provided by the learned counsel Mr. Farzand Ali who acted as Amicus Curiae. While concluding, this Court feels that some of the major punishments provided in Rule 5 of the Rules are barbaric and inhuman in nature and reminds one of colonial times. The Court expresses its appreciation for the assistance provided by the learned counsel Mr. Farzand Ali who acted as Amicus Curiae. While concluding, this Court feels that some of the major punishments provided in Rule 5 of the Rules are barbaric and inhuman in nature and reminds one of colonial times. The punishments of handcuffing behind or to a staple, whipping, penal diet with whipping, standing handcuffs with cross bar fetters and cross bar fetters with bar fetters cannot be comprehended because they virtually tend to infringe upon the fundamental right of freedom available to every individual which includes a prisoner under Article 21 of the Constitution of India. In this modern era, when the Hon’ble Supreme Court has expanded the horizon of the fundamental rights guaranteed by the Constitution of India, keeping such barbaric punishments on the statute book which virtually transgress upon the dignified life of a prisoner in jail, amounts to a violation of the fundamental right of life and liberty guaranteed by the Constitution. Hon’ble Justice Shri V.K. Krishna Iyer speaking for the Bench in the case of Sunil Batra vs. Delhi Administration reported in AIR 1980 SC 1579 , observed as below :- “28. Are prisoners persons? Yes, of course. To answer in the negative is to convict the nation and the Constitution of dehumanization and to repudiate the world legal order, which now recognises rights of prisoners in the international Covenant on Prisoners' Rights to which our country has signed assent. In Batra's case ( AIR 1978 SC 1675 ), this Court has rejected the hands off doctrine and it has been ruled that fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration. Our constitutional culture has now crystallised in favour of prison justice and judicial jurisdiction Sunil Batra v. Delhi Admn. (1979) 1 SCR 392 at pp. 409-410 : ( AIR 1978 SC 1675 ). 31. Our constitutional culture has now crystallised in favour of prison justice and judicial jurisdiction Sunil Batra v. Delhi Admn. (1979) 1 SCR 392 at pp. 409-410 : ( AIR 1978 SC 1675 ). 31. Hoskot (1979) 1 SCR 192 at p. 203 : ( AIR 1978 SC 1548 ) applied the rule in Maneka Gandhi ( AIR 1978 SC 597 ) (supra) to a prison setting and held that "one component of fair procedure is natural justice".Thus, it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ' aid. The Indian human has a constant companion -the court armed with the Constitution. The weapon is 'habeas' the power is Part III and the projectile is Batra (1978) 4 SCC 494 at p. 495 : ( AIR 1978 SC 1675 ) (supra). No iron curtain can be drawn between the prisoner and the Constitution. It is, therefore, the court's concern, implicit in the power to deprive the sentence of his personal liberty, to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to buy advantages and liberties to avoid or water down the deprivation implied in the sentence the Prison Establishment will be called to order for such adulteration or dilution of court sentences by executive palliation, if unwarranted by law. One of us, in Batra ( AIR 1978 SC 1675 ) observed: Suffice it to say that, so long as judges are invigilators and enforcers of Constitutionality and performance auditors of legality and convicts serve terms in that grim microcosm called prison by the mandate of the court a continuing institutional responsibility vests in the system to monitor in the incarceratory process and prevent security 'excesses'. Jailors are bound by the rule of law and cannot inflict supplementary sentence under disguises or defeat the primary purposes of imprisonment.” Some of the punishments which are provided in Rule 5(2) the Rajasthan Prison Rules, 1951 are no longer justified looking to the aforesaid observations made in Sunil Batra’s case (supra) and thus, it is a high time that the State Government acts promptly and revisits and suitably amends these archaic rules. A copy of this judgment be forwarded to the State Government forthwith for necessary action. Copy of this order be also sent to Superintendent, Central Jail, Udaipur ; Superintendent, Central Jail, Kota and the convict Bhanwarlal.