Francis Coralie Mullin Vs. the
Administrator, Union Territory of Delhi & Ors [1981] INSC 12 (13 January
1981)
BHAGWATI, P.N.
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION: 1981 AIR 746 1981 SCR (2) 516 1981
SCC (1) 608 1981 SCALE (1)79
CITATOR INFO :
RF 1981 SC2041 (9) D 1982 SC 710 (92,93) D
1982 SC1029 (14) MV 1982 SC1325 (16,36,75) R 1982 SC1473 (11) E&D 1985
SC1618 (9) R 1986 SC 180 (39,42) RF 1986 SC 847 (12) RF 1987 SC 990 (16) R 1991
SC 101 (239) RF 1991 SC1902 (24) RF 1992 SC1858 (10)
ACT:
Right of the detenu under Conservation of
Foreign Exchange & Prevention of Smuggling Activities Act, to have
interview with a lawyer and the members of his family- Section 3(b)(i) &
(ii) read with rule 559A and 550 of the Punjab Manual of the Superintendence
and Management of Jails-Whether violates Articles 14 and 21 of the Constitution
and hence invalid-Distinction between preventive detention with punitive
detention-Constitution of India 1950 Article 21, scope of.
HEADNOTE:
Allowing the writ petition, the Court
HELD : (1) While considering the question of
validity of conditions of detention courts must necessarily bear in mind the
vital distinction between preventive detention and punitive detention. Punitive
detention is intended to inflict punishment on a person, who is found by the
judicial process to have committed an offence, while preventive detention is
not by way of punishment at all, but it is intended to pre-empt a person from
indulging in conduct injurious to the society. [523 A-B] (2) The power of
preventive detention has been recognised as a necessary evil and is tolerated
in a free society in the larger interest of security of the State and
maintenance of public order. It is a drastic power to detain a person without
trial and in many countries it is not allowed to be exercised except in times
of war or aggression. The Indian Constitution does recognise the existence of
this power, but it is hedged-in by various safeguards set out in Articles 21
and 22. Article 22 in clauses (4) to (7) deals specifically with safeguards
against preventive detention and enjoins that any law of preventive detention
or action by way of preventive detention taken under such law must be in
conformity with the restrictions laid down by those clauses on pain of invalidation,
Article 21 also lays down restrictions on the power of preventive detention.
[523 B-D] Article 21 as interpreted in Maneka Gandhi's case requires that no
one shall be deprived of his life or personal liberty except by procedure
established by law and this procedure must be reasonable, fair and just and not
arbitrary, whimsical or fanciful and it is for the Court to decide in the
exercise of its constitutional power or judicial review whether the deprivation
of life or personal liberty in a given case is by procedure, which is
reasonable, fair and just or it is otherwise. The law of preventive detention
must, therefore, pass the test not only of Article 22 but also of Article 21.
But, despite these safeguards laid down by the Constitution and creatively
evolved by the Courts. the power of preventive detention is a frightful and
awesome power with drastic consequences affecting personal liberty, which is
the most cherished 517 and prized possession of man in a civilised society. It
is a power to be exercised with the greatest care and caution and the courts
have to be ever vigilant to see that this power is not abused or misused,
inasmuch as the preventive detention is qualitatively different from punitive
detention and their purposes are different. In case of punitive detention, the
person has fullest opportunity to defend himself, while in case of preventive
detention, the opportunity that he has for contesting the action of the
Executive is very limited. Therefore, the "restrictions placed on a person
preventively detained must, consistently with the effectiveness of detention,
be minimal". [524A-G] Maneka Gandhi v. Union of India, [1979] 1 SCC 248;
M.O. Hoscot v. State of Maharashtra, [1979] 1 SCR 192; Hussainara Khatoon v.
State of Bihar, [1980] 1 SCC 81; Sunil Batra (I) v. Delhi Administration,
[1979] 1 SCR 392; Sunil Batra (II) v. Delhi Administration, [1980] 2 SCR 557,
referred to.
Sampat Prakash v. State of Jammu and Kashmir,
[1969] 3 SCR 574, followed.
3. The prisoner or detenu has all the fundamental
rights and other legal rights available to a free person, save those which are
incapable of enjoyment by reason of incarceration. A prisoner or detenu is not
stripped of his fundamental or other legal rights, save those which are
inconsistent with his incarceration, and if any of these rights are violated,
the Court will immediately spring into action and run to his rescue. [525 B-C,
526 G-H, 527 A] Sunil Batra (I) v. Delhi Administration, [1979] 1 SCR 392;
Sunil Batra (II) v. Delhi Administration, [1980] 2 SCR 557, State of
Maharashtra v. Prabhakar Sanzgire [1966] 1 SCR 702; D. B. Patnaik v. State of
Andhra Pradesh, [1975] 2 SCR 24, followed.
Eve Pall's Case, 417 US 817: 41 Lawyers
Edition 2nd 495; Charles Wolffs Case, 41 Lawyers Edition 2nd 935, quoted with
approval.
(4) While arriving at the proper meaning and
content of the right to life, the attempt of the court should always be to
expand the reach and ambit of the fundamental right rather than to attenuate
its meaning and content. A constitutional provision must be construed, not in a
narrow and constricted sense, but in a wide and liberal manner so as to
anticipate and take account of changing conditions and purposes so that the
constitutional provision does not get atrophied or fossilized but remains
flexible enough to meet the newly emerging problems and challenges. This
principle applies with greater force in relation to a fundamental right enacted
by the Constitution. The fundamental right to life which is the most precious
human right and which forms the ark of all other rights must therefore be
interpreted in a broad and expansive spirit so as to invest it with
significance and vitality which may endure for years to come and enhance the
dignity of the individual and the worth of the human person. [527 C-D, 528 A-C]
Weems v. U.S. 54 Lawyers Edition 801, quoted with approval.
(5) The right to life enshrined in Article 21
cannot be restricted to mere animal existence. It means something much more
than just physical survival.
518 Every limb or faculty through which life
is enjoyed is thus protected by Article 21 and a fortiorari, this would include
the faculties of thinking and feeling. Now deprivation which is inhibited by
Article may be total or partially neither any limb or faculty can be totally
destroyed nor can it be partially damaged. Moreover it is every kind of
deprivation that is hit by Article 21, whether such deprivation be permanent or
temporary and, furthermore, deprivation is not an act which is complete once
and for all: it is a continuing act and so long as it lasts, it must be in
accordance with procedure established by law. Therefore any act which damages
or injures or interferes with the use of any limb or faculty of a person either
permanently or even temporarily, would be within the inhibition of Article 21.
[528 D, G-H, 529 A] Kharak Singh v. State of
Uttar Pradesh, [1964] 1 SCR 232, followed.
Munn v. Illinois [1877] 94 US 133, referred
to.
Sunil Batra v. Delhi Administration, [1980] 2
SCR 557, applied.
(6) The right to life includes the right to
live with human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and shelter and
facilities for reading, writing and expressing oneself in diverse forms, freely
moving about and mixing and commingling with fellow human beings. The magnitude
and content of the components of this right would depend upon the extent of the
economic development of the country, but it must, in any view of the matter,
include the right to the basic necessities of life and also the right to carry
on such functions and activities as constitute the bare minimum expression of
the human self. Every act which offends against or impairs human dignity would
constitute deprivation pro tanto of this right to live and it would have to be
in accordance with reasonable, fair and just procedure established by law which
stands the test of other fundamental rights. Therefore, any form of torture or
cruel, inhuman or degrading treatment would be offensive to human dignity and
constitute an inroad into this right to live and it would, on this view, be
prohibited by Article 21 unless it is in accordance with procedure prescribed
by law, but no law which authorises and no procedure which leads to such torture
or cruelty, inhuman or degrading treatment can ever stand the test of
reasonableness and non-arbitrariness: it would plainly be unconstitutional and
void as being violative of Article 14 and 21. [529 B-F] (7) There is implicit
in Article 21 the right to protection against torture or cruel, inhuman or
degrading treatment which is enunciated in Article 5 of the Universal
Declaration of Human Rights and guaranteed by Article 7 of the international
Covenant on Civil and Political Rights.
This right to live which is comprehended
within the broad connotation of the right to life can concededly be abridged
according to procedure established by law and therefore, when a person is
lawfully imprisoned, this right to live is bound to suffer attenuation to the
extent to which it is incapable of enjoyment by reason of incarceration. The
prisoner or detenu obviously cannot move about freely by going outside the
prison walls nor can be socialise at his free will with persons outside the
jail. But, as part of the right to live with human dignity and therefore, as a
necessary component of the right to life, he would be entitled to have
interviews with the members of his family and friends and no prison regulation
or procedure laid down by prison regulation regulating the right to have
interviews with the members of the family and 519 friends can be upheld as
constitutionally valid under Article 14 and 21, unless it is reasonable, fair
and just.
Considered from the point of view also of the
right to personal liberty enshrined in Article 21, the right to have interviews
with members of the family and friends is clearly part of personal liberty
guaranteed under that Article. The expression "personal liberty"
occurring in Article 21 is of the widest amplitude and it covers a variety of
rights which go to constitute the personal liberty of a man and it also
includes rights which "have been raised to the status of distinct
Fundamental Rights and given additional protection under Article 19".
Therefore, personal liberty would include the right to socialise with members
of the family and friends subject, of course, to any valid prison regulations
and under Articles 14 and 21, such prison regulations must be reasonable and
non-arbitrary. If any prison regulation or procedure laid down by it regulating
the right to have interviews with members of the family and friends is
arbitrary or unreasonable, it would be liable to be struck down as invalid as
being violative of Articles 14 and 21.
[530 B-E] Maneka Gandhi v. Union of India,
[1979] 1 SCC 248, applied.
(8) Sub-clause (ii) of clause 3(b) of the
Conditions of Detention Order is violative of Articles 14 and 21 in so far as
it permits only one interview in a month to a detenu.
When an under-trial prisoner is granted the
facility of interviews with relatives and friends twice in a week under Rule
559A and a convicted prisoner is permitted to have interviews with his
relatives and friends, once in a week under Rule 550, sub-clause (ii) of clause
3(b) of the Conditions of Detention Order, which restricts the interview only
to one in a month in case of a detenu, is unreasonable and arbitrary,
particularly when a detenu stands on a highest pedestal than an under-trial
prisoner or a convict.
A detenu must be permitted to have at least
two interviews in a week with relatives and friends and it should be possible
for relative or friend to have interview with the detenu at any reasonable hour
on obtaining permission from the Superintendent of the Jail and it should not
be necessary to seek the permission of the District Magistrate, Delhi, as the
latter procedure would be cumbrous and unnecessary from the point of view of
security and hence unreasonable. Even independently of Rules 550 and 559A, of
the Punjab Manual for the Superintendence and Management of Jails, the present
norm of two interviews in a week for prisoners furnishes a reasonable and
non-arbitrary criterion. [530 F-H, 531 A-B] Sampath Prakash v. State of Jammu
and Kashmir, [1969] 3 SCR 574, applied.
(9) Sub-clause (i) of clause 3(b) of the
Conditions of Detention Order regulating the right of a detenu to have
interview with a legal adviser of his choice is violative of Article 14 and 21
and therefore unconstitutional and void, It would be quite reasonable if a
detenu were to be entitled to have interview with his legal adviser at any
reasonable hour during the day after taking appointment from the Superintendent
of the Jail, which appointment should be given by the Superintendent without
any avoidable delay. The interview need not necessarily take place in the
presence of a nominated officer of Customs/ Central Excise/Enforcement but if
the presence of such officer can be conveniently secured at the time of the
interview without involving any postponement of the interview, than such officer
and if his presence cannot be so secured, 520 then any other Jail official may,
if thought necessary, watch the interview but in a month to a detenu. When an
under-trial prisoner is granted the facility [532C-F] (10) The right of a
detenu to consult a legal adviser of his choice for any purpose not necessarily
limited to defence in a criminal proceeding but also for securing release from
preventive detention or filling a writ petition or prosecuting any claim or
proceeding, civil or criminal is obviously included in the right to live with
human dignity and is also part of personal liberty and the detenu cannot be
deprived of this right nor can this right of the detenu be interfered with
except in accordance with reasonable, fair and just procedure established by a
valid law. [531C-E]
ORIGINAL JURISDICTION: Writ Petition No. 3042
of 1980.
(Under Article 32 of the Constitution.) N. M.
Ghatate (Dr.) and S. V. Deshpande for the Petitioner.
Hardayal Hardy and M. N. Shroff for the
Respondents Nos. 1-2.
The Judgment of the Court was delivered by
BHAGWATI, J. This petition under Article 32 of the Constitution raises a
question in regard of the right of a detenu under the Conservation of Foreign
Exchange & Prevention of Smuggling Activities Act (hereinafter referred to
as COFEPOSA Act) to have interview with a lawyer and the members of his family.
The facts giving rise to the petition are few and undisputed and may be briefly
stated as follows:
The petitioner, who is a British national,
was arrested and detained in the Central Jail, Tihar under an Order dated 23rd
November 1979 issued under section 3 of the COFEPOSA Act. She preferred a
petition in this Court for a writ of habeas corpus challenging her detention,
but by a judgment delivered by this Court on 27th February 1980, her petition
was rejected with the result that she continued to remain under detention in
the Tihar Central Jail. Whilst under detention, the petitioner experienced
considerable difficulty in having interview with her lawyer and the members of
her family. Her daughter aged about five years and her sister, who was looking
after the daughter, were permitted to have interview with her only once in a
month and she was not allowed to meet her daughter more often, though a child
of very tender age. It seems that some criminal proceeding was pending against
the petitioner for attempting to smuggle hashish out of the country and for the
purpose of her defence in such criminal proceeding, it was necessary for her to
consult her lawyer, but even her lawyer found it difficult to obtain an
interview with her because in order to arrange an interview, he was 521
required to obtain prior appointment from the District Magistrate, Delhi and
the interview could take place only in the presence of a Customs Officer
nominated by the Collector of Customs. This procedure for obtaining interview
caused considerable hardship and inconvenience and there were occasions when,
even after obtaining prior appointment from the District Magistrate, Delhi, her
lawyer could not have an interview with her since no Customs Officer nominated
by the Collector of Customs remained present at the appointed time.
The petitioner was thus effectively denied
the facility of interview with her lawyer and even her young daughter 5 years
old could not meet her except once in a month. This restriction on interviews
was imposed by the Prison Authorities by virtue of clause 3(b) sub-clauses (i)
and (ii) of the Conditions of Detention laid down by the Delhi Administration
under an Order dated 23rd August 1975 issued in exercise of the powers
conferred under section 5 of the COFEPOSA Act. These two sub-clauses of clause
3(b) provided inter alia as under:
"3. The conditions of detention in
respect of classification and interviews shall be as under:- (a) ..........
(b) Interviews: Subject to the direction
issued by the Administrator from time to time, permission for the grant of
interviews with a detenu shall be granted by the District Magistrate, Delhi as
under:- (i) Interview with legal adviser:
Interview with legal adviser in connection
with defence of a detenu in a criminal case or in regard to writ petitions and
the like, may be allowed by prior appointment, in the presence of an officer of
Customs/Central Excise/ Enforcement to be nominated by the local Collector of
Customs/Central Excise or Deputy Director of Enforcement who sponsors the case
for detention.
(ii) Interview with family members:
A monthly interview may be permitted for
members of the family consisting of wife, children or parents of the detenu
.........." The petitioner, therefore, preferred a petition in this Court
under Article 32 challenging the constitutional validity of sub-clauses (i) 522
and (ii) of clause 3(b) of the Conditions of Detention Order and praying that
the Administrator of the Union Territory of Delhi and the Superintendent of
Tihar Central Jail be directed to permit her to have interview with her lawyer
and the members of her family without complying with the restrictions laid down
in those sub-clauses.
The principal ground on which the
constitutional validity of sub-clauses (i) and (ii) of clause 3(b) of the
Conditions of Detention Order was challenged was that these provisions were
violative of Articles 14 and 21 of the Constitution inasmuch as they were arbitrary
and unreasonable. It was contended on behalf of the petitioner that allowing
interview with the members of the family only once in a month was
discriminatory and unreasonable, particularly when under-trial prisoners were
granted the facility of interview with relatives and friends twice in a week
under Rule 559A and convicted prisoners were permitted to have interview with
their relatives and friends once in a week under Rule 550 of the Rules set out
in the Manual for the Superintendence and Management of Jails in the Punjab.
The petitioner also urged that a detenu was
entitled under Article 22 of the Constitution to consult and be defended by a
legal practitioner of his choice and she was, therefore entitled to the
facility of interview with a lawyer whom he wanted to consult or appear for him
in a legal proceeding and the requirement of prior appointment for interview
and of the presence of a Customs or Excise Officer at the interview was
arbitrary and unreasonable and therefore violative of Articles 14 and 21. The
respondents resisted the contentions of the petitioner and submitted that sub-
clauses (i) and (ii) of clause 3(b) were not violative of Articles 14 and 21,
since the restrictions imposed by them were reasonable, fair and just, but
stated that they would have no objection if instead of a monthly interview, the
petitioner was granted the facility of interview with her daughter and sister
twice in a week as in the case of under- trial prisoners and so far as
interview with the lawyer is concerned, they would not insist on the presence
of a customs or excise officer at the interview. Though these two concessions
were made on behalf of the respondents at the hearing of the petition before
us, the question still remains whether sub-clause (i) and (ii) of cl. 3(b) are
valid and it is necessary that we should examine this question in the context
of our constitutional values, since there are a large number of detenus under
the COFEPOSA Act and the conditions of their detention in regard to interviews
must be finally settled by this Court.
Now it is necessary to bear in mind the
distinction between 'preventive detention' and punitive detention', when we are
considering 523 the question of validity of conditions of detention. There is a
vital distinction between these two kinds of detention.
'Punitive detention' is intended to inflict
punishment on a person, who is found by the judicial process to have committed
an offence, while 'preventive detention' is not by way of punishment at all,
but it is intended to pre-empt a person from indulging in conduct injurious to
the society.
The power of preventive detention has been
recognised as a necessary evil and is tolerated in a free society in the larger
interest of security of the State and maintenance of public order. It is a
drastic power to detain a person without trial and there are many countries
where it is not allowed to be exercised except in times of war or aggression.
Our Constitution does recognise the existence of this power, but it is
hedged-in by various safeguards set out in Articles 21 and 22. Art. 22 in
clauses (4) to (7), deals specifically with safeguards against preventive
detention and any law of preventive detention or action by way of preventive
detention taken under such law must be in conformity with the restrictions laid
down by those clauses on pain of invalidation. But apart from Art. 22, there is
also Art. 21 which lays down restrictions on the power of preventive detention.
Until the decision of this Court in Maneka Gandhi. v. Union of India, a very
narrow and constricted meaning was given to the guarantee embodied in Art. 21
and that article was understood to embody only that aspect of the rule of law,
which requires that no one shall be deprived of his life or personal liberty without
the authority of law. It was construed only as a guarantee against executive
action unsupported by law. So long as there was some law, which prescribed a
procedure authorising deprivation of life or personal liberty, it was supposed
to meet the requirement of Art. 21. But in Maneka Gandhi's case (supra), this
Court for the first time opened-up a new dimension of Art. 21 and laid down
that Art. 21 is not only a guarantee against executive action unsupported by
law, but is also a restriction on law making. It is not enough to secure
compliance with the prescription of Article 21 that there should be a law
prescribing some semblance of a procedure for depriving a person of his life or
personal liberty, but the procedure prescribed by the law must be reasonable,
fair and just and if it is not so, the law would be void as violating the
guarantee of Art. 21. This Court expanded the scope and ambit of the right to
life and personal liberty enshrined in Art. 21 and sowed the seed for future
development of the law enlarging this most fundamental of Fundamental Rights.
This decision in Maneka Gandhi's case became the starting
point-the-spring-board-for a most spectacular evolution the law culminating in
the decisions in M. O. Hoscot v. 524 State of Maharashtra,, Hussainara
Khatoon's case, the first Sunil Batra's case and the second Sunil Batra's case.
The position now is that Art. 21 as interpreted in Maneka Gandhi's case (supra)
requires that no one shall be deprived of his life or personal liberty except
by procedure established by law and this procedure must be reasonable, fair and
just and not arbitrary, whimsical or fanciful and it is for the Court to decide
in the exercise of its constitutional power of judicial review whether the
deprivation of life or personal liberty in a given case is by procedure, which
is reasonable, fair and just or it is otherwise. The law of preventive
detention has therefore now to pass the test not only of Art. 22, but also of
Art. 21 and if the constitutional validity of any such law is challenged, the
Court would have to decide whether the procedure laid down by such law for
depriving a person of his personal liberty is reasonable, fair and just. But
despite these safeguards laid down by the Constitution and creatively evolved
by the Courts, the power of preventive detention is a frightful and awesome
power with drastic consequences affecting personal liberty, which is the most
cherished and prized possession of man in a civilised society. It is a power to
be exercised with the greatest care and caution and the courts have to be ever
vigilant to see that this power is not abused or misused. It must always be
remembered that preventive detention is qualitatively different from punitive
detention and their purposes are different. In case of punitive detention, the
person concerned is detained by way of punishment after he is found guilty of
wrong doing as a result of trial where he has the fullest opportunity to defend
himself, while in case of preventive detention, he is detained merely on
suspicion with a view to preventing him from doing harm in future and the
opportunity that he has for contesting the action of the Executive is very
limited. Having regard to this distinctive character of preventive detention,
which aims not at punishing an individual for a wrong done by him, but at
curtailing his liberty with a view to pre-empting his injurious activities in
future, it has been laid down by this Court in Sampat Prakash v. State of Jammu
and Kashmir "that the restrictions placed on a person preventively
detained must, consistently with the effectiveness of detention, be
minimal." The question which then arises is whether a person preventively
detained in a prison has any rights which he can enforce in a Court 525 of law.
Once his freedom is curtailed by incarceration in a jail, does he have any
fundamental rights at all or does he leave them behind, when he enters the
prison gate ? The answer to this question is no longer res integra. It has been
held by this Court in the two Sunil Batra cases that "fundamental rights
do not flee the person as he enters the prison although they may suffer
shrinkage necessitated by incarceration." The prisoner or detenu has all
the fundamental rights and other legal rights available to a free person, save
those which are incapable of enjoyment by reason of incarceration. Even before
the two Sunil Batra cases, this position was impliedly accepted in State of
Maharashtra v. Prabhakar Sanzgiri and it was spelt-out clearly and in no
uncertain terms by Chandrachud, J. as he then was, in D. B. Patnaik v. State of
Andhra Pradesh :
"Convicts are not, by mere reason of the
conviction, denuded of all the fundamental rights which they otherwise possess.
A compulsion under the authority of law, following upon a conviction, to live
in a prison-house entails to by its own force the deprivation of fundamental
freedoms like the right to move freely throughout the territory of India or the
right to "practise" a profession. A man of profession would thus
stand stripped of his right to hold consultations while serving out his
sentence. But the Constitution guarantees other freedoms like the right to
acquire, hold and dispose of property for the exercise of which incarceration
can be no impediment.
Likewise, even a convict is entitled to the
precious right guaranteed by Art. 21 of the Constitution that he shall not be
deprived of his life or personal liberty except according to procedure
established by law." This statement of the law was affirmed by a Bench of
five Judges of this Court in the first Sunil Batra case (supra) and by Krishna
Iyer, J. speaking on behalf of the Court in the second Sunil Batra case
(supra). Krishna Iyer, J. in the latter case proceeded to add in his
characteristic style; "The jurisdictional reach and range of this Court's
writ to hold prison caprice and cruelty in constitutional leash is
incontestable" and concluded by observing; "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." 526 It is interesting to note that the
Supreme Court of the United States has also taken the same view in regard to
rights of prisoners. Mr. Justice Douglas struck a humanistic note when he said
in Eve Pall's case :
"Prisoners are still persons entitled to
all constitutional rights unless their liberty has been constitutionally
curtailed by procedures that satisfy all the requirements of due process."
So also in Charles Wolff's case, Mr. Justice White made the same point in
emphatic terms.
"But, though his rights may be
diminished by environment, a prisoner is not wholly stripped off constitutional
protections, when he is imprisoned for crime. There is no iron curtain drawn
between the Constitution and the prisons of this country." Mr. Justice
Douglas reiterated his thesis when he asserted:
"Every prisoner's liberty i.e. of
courses, circumscribed by the very fact of his confinement, but his interest in
the limited liberty left to him is then only the more substantial. Conviction
of a crime does not render one a non-person whose rights are subject to the
whim of the prison administration, and therefore, the imposition of any serious
punishment within the system requires procedural safeguards." Mr. Justice
Marshall also expressed himself clearly and explicitly in the same terms:
"I have previously stated my view that a
prisoner does not shed his basic constitutional rights at the prison gate, and
I fully support the court's holding that the interest of inmates in freedom
from imposition of serious discipline is a 'liberty' entitled to due process
protection." What is stated by these learned Judges in regard to the
rights of a prisoner under the Constitution of the United States applies
equally in regard to the rights of a prisoner or detenu under our
constitutional system. It must, therefore, now be taken to be well-settled that
a prisoner or detenu is not stripped of his fundamental or other legal rights,
save those which are inconsistent with his incarceration, and if any of these
rights are violated, the Court which is to use the words of Krishna Iyer, J.,
"not a distant abstraction omnipotent in the 527 books but an activist
institution which is the cynosure of public hope," will immediately spring
into action and run to his rescue.
We must therefore proceed to consider whether
any of the Fundamental Rights of the detenu are violated by sub- clauses (i)
and (ii) of clause 3(b) so as to result in their invalidation wholly or in
part. We will first take up for consideration the Fundamental Right of the
detenu under Article 21 because that is a Fundamental Right which has, after
the decision in Maneka Gandhi's case (supra), a highly activist magnitude and
it embodies a constitutional value of supreme importance in a democratic
society. It provides that no one shall be deprived of his life or personal
liberty except according to procedure established by law and such procedure
shall be reasonable fair, and just. Now what is the true scope and ambit of the
right to life guaranteed under this Article ? While arriving at the proper
meaning and content of the right to life, we must remember that it is a constitutional
provision which we are expounding and moreover it is a provision enacting a
Fundamental right and the attempt of the court should always be to expand the
reach and ambit of the Fundamental right rather than to attenuate its meaning
and content. The luminous guideline in the interpretation of a constitutional
provision is provided by the Supreme Court of United States in Weems v. U. S.
54 Lawyers Edition 801.
"Legislation, both statutory and
constitutional is enacted; it is true, from an experience of evils, but- its
general language should not, therefore, be necessarily confined to the form
that evil had, therefore taken. Time works changes, brings into existence new
conditions and purposes. Therefore, a principle, to be vital, must be capable
of wider application than mischief which gave it birth. This is peculiarly true
of constitutions. They are not ephemeral enactments designed to meet passing
occasions. They are, to use the words of Chief Justice Marshall, "designed
to approach immorality as nearly as human institutions can approach it"
The future is their care, and provisions for events of good and bad tendencies
of which no prophecy can be made. In the application of a constitution,
therefore, our contemplation cannot be only of what has been, but of what may
be. Under any other rule a constitution would indeed be as easy of application
as it would be deficient in efficacy and power. Its general principles would
have little value, and be converted by precedent into important and lifeless
formulas. Rights declared in the words might be lost in reality. And this has
been recognised. The meaning and vitality of the 528 Constitution have
developed against narrow and restrictive construction." This principle of
interpretation which requires that a Constitutional provision must be
construed, not in a narrow and constricted sense but in a wide and liberal
manner so as to anticipate and take account of changing conditions and purposes
so that the Constitutional provision does not get atrophied or fossilized but
remains flexible enough to meet the newly emerging problems and challenges,
applies with greater force in relation to a fundamental right enacted by the
Constitution. The fundamental right to life which is the most precious human
right and which forms the ark of all other rights must therefore be interpreted
in a broad and expansive spirit so as to invest it with significance and
vitality which may endure for years to come and enhance the dignity of the
individual and the worth of the human person.
Now obviously, the right to life enshrined in
Article 21 cannot be restricted to mere animal existence. It means something
much more than just physical survival. In Kharak Singh v. State of Uttar
Pradesh Subba Rao J. quoted with approval the following passage from the
judgment of Field J.
in Munn v. Illinois to emphasize the quality
of life covered by Article 21:
"By the term "life" as here
used something more is meant than mere animal existence. The inhibition against
its deprivation extends to all those limbs and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body or
amputation of an arm or leg or the putting out of an eye or the destruction of
any other organ of the body through which the soul communicates with the outer
world." and this passage was again accepted as laying down the correct law
by the Constitution Bench of this Court in the first Sunil Batra case (supra).
Every limb or faculty through which life is enjoyed is thus protected by
Article 21 and a fortiorari, this would include the faculties of thinking and
feeling. Now deprivation which is inhibited by Article 21 may be total or
partial, neither any limb or faculty can be totally destroyed nor can it be
partially damaged. Moreover it is every kind of deprivation that is hit by
Article 21, whether such deprivation be permanent or temporary and,
furthermore, depriva- 529 tion is not an act which is complete once and for
all: it is a continuing act and so long as it lasts, it must be in accordance
with procedure established by law. It is therefore clear that any act which
damages or injures or interferes with the use of, any limb or faculty of a
person, either permanently or even temporarily, would be within the inhibition
of Article 21.
But the question which arises is whether the
right to life is limited only to protection of limb or faculty or does it go
further and embrace something more. We think that the right to life includes
the right to live with human dignity and all that goes along with it, namely,
the bare necessaries of life such as adequate nutrition, clothing and shelter
and facilities for reading, writing and expressing one-self in diverse forms,
freely moving about and mixing and commingling with fellow human beings. Of
course, the magnitude and content of the components of this right would depend
upon the extent of the economic development of the country, but it must, in any
view of the matter, include the right to the basic necessities of life and also
the right to carry on such functions and activities as constitute the bare
minimum expression of the human-self. Every act which offends against or
impairs human dignity would constitute deprivation protanto of this right to
live and it would have to be in accordance with reasonable, fair and just
procedure established by law which stands the test of other fundamental rights.
Now obviously, any form of torture or cruel, inhuman or degrading treatment
would be offensive to human dignity and constitute an inroad into this right to
live and it would, on this view, be prohibited by Article 21 unless it is in
accordance with procedure prescribed by law, but no law which authorises and no
procedure which leads to such torture or cruel, inhuman or degrading treatment
can ever stand the test of reasonableness and non-arbitrariness:
it would plainly be unconstitutional and void
as being violative of Articles 14 and 21. It would thus be seen that there is
implicit in Article 21 the right to protection against torture or cruel,
inhuman or degrading treatment which is enunciated in Article 5 of the
Universal Declaration of Human Rights and guaranteed by Article 7 of the
International Covenant on Civil and Political Rights.
This right to live which is comprehended
within the broad connotation of the right to life can concededly be abridged
according to procedure established by law and therefore when a person is
lawfully imprisoned, this right to live is bound to suffer attenuation to the
extent to which it is incapable of enjoyment by reason of incarceration. The
prisoner or detenu obviously cannot move about freely by going outside the
prison walls nor can he socialise at his free will with persons outside the
jail. But, as part of the 530 right to live with human dignity and therefore as
a necessary component of the right to life, he would be entitled to have
interviews with the members of his family and friends and no prison regulation
or procedure laid down by prison regulation regulating the right to have
interviews with the members of the family and friends can be upheld as
constitutionally valid under Articles 14 and 21, unless it is reasonable, fair
and just.
The same consequence would follow even if
this problem is considered from the point of view of the right to personal
liberty enshrined in Article 21, for the right to have interviews with members
of the family and friends is clearly part of personal liberty guaranteed under
that Article. The expression 'personal liberty' occurring in Article 21 has
been given a broad and liberal interpretation in Maneka Gandhi's case (supra)
and it has been held in that case that the expression 'personal liberty used in
that Article is of the widest amplitude and it covers a variety of rights which
go to constitute the personal liberty of a man and it also includes rights
which "have been raised to the status of distinct Fundamental Rights and
given additional protection under Article 19". There can therefore be no
doubt that 'personal liberty would include the right to socialise with members
of the family and friends subject, of course, to any valid prison regulations
and under Articles 14 and 21, such prison regulations must be reasonable and
non-arbitrary. If any prison regulation or procedure laid down by it regulating
the right to have interviews with members of the family and friends is
arbitrary or unreasonable, it would be liable to be struck down as invalid as
being violative of Articles 14 and 21.
Now obviously when an under-trial prisoner is
granted the facility of interviews with relatives and friends twice in a week
under Rule 559A and a convicted prisoner is permitted to have interviews with
his relatives and friends once in a week under Rule 550, it is difficult to
understand how sub-clause (ii) of Clause 3(b) of the Conditions of Detention
Order, which restricts the interview only to one in a month in case of a
detenu, can possibly be regarded as reasonable and non-arbitrary, particularly
when a detenu stands on a higher pedestal than an under-trial prisoner or a
convict and, as held by this Court in Sampath Prakash's case (supra)
restrictions placed on a detenu must "consistent with the effectiveness of
detention, be minimal." We would therefore unhesitatingly hold sub-clause
(ii) of clause 3(b) to be violative of Articles 14 and 21 in so far as it permits
only one interview in a month to a detenu. We are of the view that a detenu
must be permitted to have atleast two interviews in a week with relatives and
friends and it should be possible for a relative or friend to have interview
with 531 the detenu at any reasonable hour on obtaining permission from the
Superintendent of the Jail and it should not be necessary to seek the
permission of the District Magistrate, Delhi, as the latter procedure would be
cumbrous and unnecessary from the point of view of security and hence
unreasonable. We would go so far as to say that even independently of Rules 550
and 559A, we would regard the present norm of two interviews in a week for
prisoners as furnishing a criterion of what we would consider reasonable and
non-arbitrary.
The same reasoning must also result in
invalidation of sub-clause (i) of clause 3(b) of the Conditions of Detention
Order which prescribes that a detenu can have interview with a legal adviser
only after obtaining prior permission of the District Magistrate, Delhi and the
interview has to take place in the presence of an officer of Customs/Central
Excise/Enforcement to be nominated by the local Collector of Customs/Central
Excise or Deputy Director of Enforcement who has sponsored the case for detention.
The right of a detenu to consult a legal adviser of his choice for any purpose
not necessarily limited to defence in a criminal proceeding but also for
securing release from preventive detention of filing a writ petition or
prosecuting any claim or proceeding, civil or criminal, is obviously included
in the right to live with human dignity and is also part of personal liberty
and the detenu cannot be deprived of this right nor can this right of the
detenu be interfered with except in accordance with reasonable, fair and just
procedure established by a valid law. A prison regulation may, therefore,
regulate the right of a detenu to have interview with a legal adviser in a
manner which is reasonable, fair and just but it cannot prescribe an arbitrary
or unreasonable procedure for regulating such an interview and if it does so,
it would be violative of Articles 14 and 21. Now in the present case the legal
adviser can have interview with a detenu only by prior appointment after
obtaining permission of the District Magistrate, Delhi. This would obviously
cause great hardship and inconvenience because the legal adviser would have to
apply to the District Magistrate, Delhi well in advance and then also the time
fixed by the District Magistrate, Delhi may not be suitable to the legal
adviser who would ordinarily be a busy practitioner and, in that event, from a
practical point of view the right to consult a legal adviser would be rendered
illusory. Moreover, the interview must take place in the presence of an officer
of Customs/Central Excise/Enforcement to be nominated by the local Collector of
Customs/Central Excise or Deputy Director of Enforcement who has sponsored the
detention and this too would seem to be an unreasonable procedural requirement
because in order to secure the presence of such officer at the interview, the
District Magistrate, Delhi 532 would have to fix the time for the interview in
consultation with the Collector of Customs/Central Excise or the Deputy
Director of Enforcement and it may become difficult to synchronise the time
which suits the legal adviser with the time convenient to the concerned officer
and furthermore if the nominated officer does not, for any reason, attend at
the appointed time, as seems to have happened on quite a few occasions in the
case of the petitioner, the interview cannot be held at all and the legal
adviser would have to go back without meeting the detenu and the entire
procedure for applying for an appointment to the District Magistrate, Delhi
would have to be gone through once again. We may point out that no satisfactory
explanation has been given on behalf of the respondents disclosing the
rationale of this requirement.
We are therefore of view that sub-clause (i)
of clause 3(b) regulating the right of a detenu to have interview with a legal
adviser of his choice is violative of Arts. 14 and 21 and must be held to be
unconstitutional and void. We think that it would be quite reasonable if a
detenu were to be entitled to have interview with his legal adviser at any
reasonable hour during the day after taking appointment from the Superintendent
of the Jail, which appointment should be given by the Superintendent without
any avoidable delay. We may add that the interview need not necessarily take
place in the presence of a nominated officer of Customs/Central
Excise/Enforcement but if the presence of such officer can be conveniently
secured at the time of the interview without involving any postponement of the
interview, then such officer and if his presence cannot be so secured, then any
other Jail official may, if thought necessary, watch the interview but not as
to be within hearing distance of the detenu and the legal adviser.
We accordingly allow the writ petition and
grant relief to the extent indicated above.
V.D.K. Petition allowed.
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