Sheela Barse Vs. State of
Maharashtra [1983] INSC 11 (15 February 1983)
BHAGWATI, P.N.
BHAGWATI, P.N.
PATHAK, R.S.
SEN, AMARENDRA NATH (J)
CITATION: 1983 AIR 378 1983 SCR (2) 337 1983
SCC (2) 96 1983 SCALE (1)140
ACT:
Legal Aid to the poor-Importance of legal aid
to the poor explained-Directions given to Prison authorities and police on
providing Legal aid to the poor prisoners.
HEADNOTE:
The petitioner, a journalist, in her letter
addressed to this Court stated that Five out of fifteen women prisoners
interviewed by her in the Bombay Central Jail alleged that they had been
assaulted by the police in the police lock up and two of them in particular
alleged that they had been assaulted and tortured in the lock up.
Treating the letter as a writ petition the
Court issued notices to all concerned to show cause why the writ petition
should not be allowed In the meanwhile the Director of the College of Social
Work, Nirmala Niketan, Bombay was directed to interview the women prisoners
without anyone else being present and ascertain whether the allegations made to
the petitioner were correct. The Director, in her report, stated among other
things that there was no adequate arrangement for providing legal assistance to
women prisoners and that two prisoners who were foreign nationals complained
that a lawyer duped and defrauded them and misappropriated almost half of their
belongings and jewellery on the plea that he was retaining them for payment of
his fees.
Disposing of the petition the court gave the
following directions: F Legal assistance to a poor or indigent accused,
arrested and put in jeopardy of his life or personal liberty, is a
constitutional imperative mandated not only by Art. 39A but also by Articles 14
and 21 of the Constitution.
It is a Necessary sine qua non of justice and
where it is not provided, injustice is likely to result and every act of
injustice corrodes the foundations of democracy and rule of law. It is possible
that a prisoner lodged in a jail does not know to whom he can turn for help to
indicate his innocence or defend his constitutional G or legal rights or to
protect himself against torture and ill-treatment, oppression and harassment at
the hands of his custodians. It is also possible that he or the members of his
family may have other problems where legal assistance is required but by reason
of his being incarcerate. it may be difficult if not impossible for him or the
members of his family to obtain proper legal advice or aid. It is therefore
essential that legal assistance must be made available to prisoners in jails
whether they be under-trials or convicted prisoners.
338 The Inspector General of Prisons in
Maharashtra should issue a circular to all Superintendents of Jails in
Maharashtra requiring them to send to the Legal Aid Committee of each district
in which the jail is situated:
(i) a list of all under-trial prisoners
giving the date of entry, the nature of the offence showing separately male and
female prisoners and (ii) a list giving the particulars of persons arrested on
suspicion under s. 41 of the Code of Criminal Procedure who have been in jail
beyond a period of 15 days. The Circular should also contain directions: (i) to
provide facilities to lawyers nominated by the concerned district Legal Aid
Committee to enter the jail and to interview the prisoners who have expressed
their desire to have their assistance; (ii) to furnish to the lawyers nominated
by tho Legal Aid Committee whatever information is required by them in regard
to the prisoners in jail; (iii) to put up notices at prominent places in the
jail that lawyers nominated by the concerned District Legal Aid Committee would
be visiting the jail on particular days arid that prisoners who wanted their
assistance could avail of their counselling services; (iv) to allow any
prisoner to meet such lawyers. Such interview should be within, sight but out
of hearing of any jail official. [343 D-E, G-H, 344 A-D] The Maharashtra State
Board of Legal Aid should advise and instruct the District Legal Aid Committees
to nominate a few selected lawyers to visit the jail or jails in the district
once in a fortnight to ascertain whether the law laid down by this Court and
the High Court in this respect is being properly and effectively implemented
and to interview the prisoners who express their desire to obtain legal
assistance. The State Board should call for periodic reports from the district
legal aid committees to ensure that these directions are being properly carried
out. [344 E-H] The Court has given the following further directions:
(i) Four or five police lock ups should be
selected in reasonably good localities where only female suspects should be
kept and they should be guarded. by female constables.
Female suspects should not be kept in a
police lock up in which male suspects are detained. [345 E-F] (ii)
Interrogation of females should be carried out only in the presence of female
police officers/constables.
[345 G] (iii) A person arrested must be
immediately informed of the grounds of his arrest. It must immediately be made
known to the arrested person that he is entitled to apply for bail. The
Maharashtra State Board of Legal Aid and Advice should forthwith get a
pamphlets prepared setting out the legal rights of an arrested person. The
pamphlets should be in Marathi, Hindi and English. Printed copies of the
pamphlets in all these languages should be affixed in each cell in every police
lock up. As soon as the arrested person is brought to the police station, the
pamphlet should be read out to him in any of the languages which he
understands. [345 H, 346 A C] (iv) Whenever a person is arrested by the police
and taken to the police lock up, the police should immediately give intimation
of the fact of such arrest to the nearest Legal Aid Committee which should take
immediate steps to 339 provide legal assistance to him at State cost provided
he is willing to accept such A legal assistance. [346 D-E] (v) In the city of
Bombay, a City Sessions Judge, nominated by the principal Judge of the City
Civil Court, preferably a lady Judge if there is one, shall make surprise
visits to police lock ups in the city periodically with a view to providing the
arrested persons an opportunity to air their grievances and for ascertaining
the conditions in the police lock up, whether the requisite facilities are
being provided, whether the provisions of law are being observed and that these
directions are being carried out. If it is found that there are any lapses on
the part of the police authorities, the City Sessions Judge shall bring them to
the notice of the Commissioner of Police and if necessary to the notice of the
Home Department. If even this approach fails, then the City Sessions Judge may
draw the attention of the Chief Justice of the High Court of Maharashra to such
lapses. This direction in regard to police lock up at the district headquarters
shall be carried out by the Sessions Judge of the district concerned. [346 F-H,
347 A] (vi) As soon as a person is arrested, the police must immediately obtain
from him the name of any relative or friend whom he would like to be informed
about his arrest and the police should get in touch with such relative or
friend and inform him about the arrest. [347 B-C] (vii) The magistrate before
whom an arrested person is produced shall enquire from him whether he has any
complaint of torture or maltreatment in police custody and inform him that he
has a right under section 54 of the Code of Criminal Procedure 1973 to be
medically examined. [347 C-D] The Court made the following observations:
The profession of law is a noble profession.
A lawyer owes a duty to the society to help people in distress more so when
those in distress are women 2nd in jail. Lawyers must positively reach up to
those sections of humanity who are poor, illiterate and ignorant and who, when
they are placed in a crisis such as an accusation of crime or arrest or
imprisonment, do not know what to do or where to go or to whom to turn. If
lawyers, instead of coming to the rescue of persons in distress, exploit and
prey upon them, the legal profession will come into disrepute and The large
masses of people in the country would lose faith in lawyers and that would be
destructive of democracy and the rule of law. [342 F-H, 343 A-B]
ORIGINAL JURISDICTION; Writ Petition (Crl.)
Nos. 1053- 1054 of 1982.
(Under Article 32 of the Constitution of
India.
Khursheed Ahmed for the Petitioner.
K.G. Bhagat Addl. Sol. General, V.B. Joshi
and M.N.
Shroff for the Respondent.
340 The Judgment of the Court was delivered
by BHAGWATI, J. This writ petition is based on a letter addressed by Sheela
Barse, a journalist, complaining of custodial violence to women prisoners
whilst confined in the police lock up in the city of Bombay. The petitioner
stated in her letter that she interviewed fifteen women prisoners in the Bombay
Central Jail with the permission of the Inspector General of Prisons between 11
and 17th May, 1982 and five out of them told her that they had been assaulted
by the police in the police lock up. Of these five who complained of having
been assaulted by the police, the petitioner particularly mentioned the cases
of two, namely, Devamma and Pushpa Paeen who were allegedly assaulted and
tortured whilst they were in the police lock up. It is not necessary for the
purpose of this writ petition to go into the various allegations in regard to
the ill-treatment meted out to the women prisoners in the police lock up and
particularly the torture and beating to which Devamma and Pushpa Paeen were
said to have been subjected because we do not propose to investigate into the
correctness of these allegations which have been disputed on behalf of the
State of Maharashtra. But, since these allegations were made by the women
prisoners interviewed by the petitioner and particularly by Devamma and Pushpa
Paeen and there was no reason to believe that a journalist like the petitioner
would invent or fabricate such allegations if they were not made to her by the
women prisoners, this Court treated the letter of the petitioner as a writ
petition and issued notice to the State of Maharashtra, Inspector General of
Prisons, Maharashtra, Superintendent, Bombay Central Jail and the Inspector
General of Police, Maharashtra calling upon them to show cause why the writ
petition should not be allowed. It appears that on the returnable date of the
show cause notice no affidavit was filed on behalf of any of the parties to
whom show cause notice was issued and this Court therefore adjourned the
hearing of the writ petition to enable the State of Maharashtra and other parties
to file an affidavit in reply to the averments made in the letter of the
petitioner. This Court also directed that in the meanwhile Dr. (Miss) A.R.
Desai, Director of College of Social Work, Nirmala Niketan, Bombay will visit
the Bombay Central Jail and interview women prisoners lodged there including
Devamma and Pushpa Paeen without any one else being present at the time of
interview v and ascertain whether they had been subjected to any torture or
ill- treatment and submit a report to this Court on or before 30th August,
1982. The State Government and the Inspector General of Prisons were directed
to provide all 341 facilities to Dr. Miss A.R. Desai to carry out this
assignment entrusted to her. The object of assigning this commission to Dr.
Miss A.R. Desai was to ascertain whether allegations of torture and
ill-treatment as set out in the letter of the petitioner were, in fact, made by
the women prisoners including Devamma and Pushpa Paeen to the petitioner and
what was the truth in regard to such allegations. Pursuant to the order made by
this Court, Dr. Miss A.R. Desai visited Bombay Central prison and after
interviewing women prisoners lodged there, made a detailed report to this
Court. The Report is a highly interesting and instructive socio-legal document
Which provides an insight into the problems and difficulties facing women
prisoners and we must express our sense of gratitude to Dr. Miss A.R. Desai for
the trouble taken by her in submitting such a wonderfully thorough and
perceptive report. We are not concerned here directly with the conditions
prevailing in the Bombay Central Jail or other jails in the State of
Maharashtra because the primary question which is raised in the letter of the
petitioner relates to the safety and security of women prisoners in police lock
up and their protection against torture and ill-treatment. But even so we would
strongly recommend to the Inspector General of Prisons, Maharashtra that he may
have a look at this Report made by Dr. Miss A.R. Deasai and consider what
further steps are necessary to be taken in order to improve the conditions in
the Bombay Central Jail and other jails in the State of Maharashtra and to make
life for the women prisoners more easily bearable by them. There is only one
matter about which we would like to give directions in this writ petition and
that is in regard to the need to provide legal assistance not only to women
prisoners but to all prisoners lodged in the jails in the State of Maharashtra.
We have p already had occasion to point out in several decisions given by this
Court that legal assistance to a poor or indigent accused who is arrested and
put in jeopardy of his life or personal liberty is a constitutional imperative
mandated not only by Article 39 but also by Articles 14 and 21 of the
Constitution. It is a necessary sine qua non of justice and where it is not
provided, injustice is likely to result and undeniably every act of injustice
corrodes the foundations of democracy and rule of law, because nothing rankles
more in the human heart than a feeling of injustice and those who suffer and
cannot get justice because they are priced out of the legal system, lose faith
in the legal process and a feeling begins to overtake them that democracy and
rule of law are merely slogans or myths intended to perpetuate the domination
of the rich and the powerful 342 and to protect the establishment and the
vested interests.
Imagine the helpless condition of a prisoner
who is lodged in a jail who does not know to whom he can turn for help in order
to vindicate his innocence or defend his constitutional or legal rights or to
protect himself against torture and ill-treatment or oppression and harassment
at the hands of his custodians. lt is also possible that he or the members of
his family may have other problems where legal assistance is required but by
reason of his being incarcerated, it may be difficult if not impossible for him
or the members of his family to obtain proper legal advice or aid. It is
therefore absolutely essential that legal assistance must be made available to
prisoners in C: jails whether they be under-trial or convicted prisoners.
The Report of Dr. Miss A.R. Desai shows that
there is no adequate arrangement for providing legal assistance to women
prisoners and we dare say the situation which prevails in the matter of
providing legal assistance in the case of women prisoners must also be the same
m regard to male prisoners. It is pointed out in the Report of Dr. Miss A.R. Desai
that two prisoners in the Bombay Central Jail, one a German national and the
other a Thai national were duped and defrauded by a lawyer, named Mohan Ajwani
who misappropriated almost half the belongings of the German national and the
jewellery of the Thai national on the plea that he was retaining such
belongings and jewellery for payment of his fees. We do not know whether this
allegation made by these two German and Thai women prisoners is true or not
but, if true, it is a matter of great shame for the legal profession and it
needs to be thoroughly.
investigated. The profession of law is-a
noble profession which has always regarded itself as a branch of social service
and a lawyer owes a duty to the society to help people in distress and more so
when those in distress are women and in jail. Lawyers must realise that law is
not a pleasant retreat where we are concerned merely with mechanical
interpretation of rules made by the legislature but it is a teeming open ended
avenue through which most of the traffic of human existence passes. There are
many casualities of this traffic and it is the function of the legal profession
to help these casualities in a spirit of dedication and service. It is for the
lawyers to minimise the numbers of those casualities who still go without legal
assistance. The lawyers must positively reach out to those sections of humanity
who are poor, illiterate and ignorant and who, when they are placed in a crisis
such as an accusation of crime or arrest or imprisonment, do not know what 343
to do or where to go or to whom to turn. If lawyers, instead of A coming to the
rescue of persons in distress, exploit and prey upon them, the legal profession
will come into disrepute and large masses of people in the country would lose
faith in lawyers and that would be destructive of democracy and rule of law. If
it is true-that these two German and Thai women prisoners were treated by Mohan
Ajwani in the manner alleged by them-and this is a question on which we do not
wish to express any opinion ex parte-it deserves the strongest condemnation. We
would therefore direct that the allegations made by the two German and Thai
women prisoners as set out in paragraph 9.2 of the Report of Dr. Miss A.R.
Desai be referred to the Maharashtra State Bar Council for taking such action
as may be deemed fit.
But, this incident highlights the need for
setting up a machinery for providing legal assistance to prisoners in jails.
There is fortunately a legal aid organisation in the State of Maharashtra
headed by the Maharashtra State Board of Legal Aid and Advice which has set up
committees at the High Court and district levels. We would therefore direct the
Inspector General of Prisons in Maharashtra to issue a circular to all
Superintendents of Police in Maharashtra requiring them- (1) to send a list of
all under-trial prisoners to the Legal Aid Committee of the district in which
the jail is situate giving particulars of the date of entry of the under-trial
prisoners in the jail and to the extent possible, of the offences with which
they are charged and showing separately male prisoners and female prisoners.
(2) to furnish to the concerned District
Legal Aid Committee a list giving particulars of the persons arrested on
suspicion under section 41 of the Code of Criminal Procedure who have been in
jail beyond a period of 15 days.
(3) to provide facilities to the lawyers
nominated by the concerned District Legal Aid Committee to enter the jail and
to interview the prisoners who have expressed their desire to have their
assistance.
344 (4) to furnish to the lawyers nominated
by the concerned District Legal Aid Committee whatever information is required
by them in regard to the prisoners in jail.
(5) to put up notices at prominent places in
the jail that lawyers nominated by the concerned District Legal Aid Committee
would be visiting the jail on particular days and that any prisoner who desires
to have their assistance can meet them and avail of their counselling services;
and (6) to allow any prisoner who desires to meet the lawyers nominated by the
concerned District Legal Aid Committee to interview and meet such lawyers
regarding any matter for which he requires legal assistance and such interview
should be within sight but out of hearing of and jail official.
We would also direct that in order to
effectively carry out these directions which are being given by us to the
Inspector General of Prisons, the Maharashtra State Board of Legal Aid and
Advice will instruct the District Legal Aid Committees of the districts in
which jails are situate to nominate a couple of selected lawyers practicing in
the district court to visit the jail or jails in the district at least once in
a fortnight with a view to ascertaining whether the law laid down by the
Supreme Court and the High Court of Maharashtra in regard to the rights of
prisoners including the right to apply for bail and the right to legal aid is
being properly and effectively implemented and to interview the prisoners who
have expressed their desire to obtain legal assistance and to provide them such
legal assistance as may be necessary for the purpose of applying for release on
bail or parole and ensuring them adequate legal representation in courts,
including filing or preparation of appeals or revision applications against
convictions and legal aid and advice in regard to any other problems which may
be facing them or the members of their families. The Maharashtra State Board of
Legal Aid & Advice will call for periodic reports from the district legal
aid committees with a view to ensuring that these directions given by us are
being properly carried out. We would also direct the Maharashtra State Board of
Legal Aid and Advice to pay an honorarium of Rs. 25/- per lawyer for every
visit to the jail together with reasonable travelling expenses from the court
house to jail and back. These directions 345 in so far as the city of Bombay is
concerned, shall be carried out by substituting the High Court Legal Aid
Committee for the District Legal Aid Committee, since there is no District
Legal aid committee in the city of Bombay but the Legal Aid Programme is
carried out by the High Court Legal Aid Committee. We may point out that this
procedure is being followed with immense benefit to the prisoners in jails by
the Tamil Nadu State Legal Aid & Advice Board.
We may DOW take up the question as to how
protection can be accorded to the women prisoners in police lock ups.
We put forward several suggestions to the
learned advocate appearing on behalf of the petitioner and the State of
Maharashtra in the course of the hearing and there was a meaningful and
constructive debate in court. The State of Maharashtra offered its full
co-operation to the Court in laying down the guidelines which should be
followed so far as women prisoners in police lock ups are concerned and most of
the as suggestions made by us were readily accepted by the State of
Maharashtra. We propose to give the following directions as a result of
meaningful and constructive debate in court in regard to various aspects of the
question argued before us.
(i) We would direct that four or five police
lock ups should be selected in reasonably good localities where only female
suspects should be kept and they should be guarded by female constables. Female
suspects should not be kept in police lock up in which male suspects are
detained. The State of Maharashtra has intimated to us that there are already
three cells where female suspects are kept and are guarded by female constables
and has assured the Court that two more cells with similar arrangements will be
provided exclusively for female suspects.
(ii) We would further direct that
interrogation of females should be carried out only in the presence of female
police officers/constables.
(ii) Whenever a person is arrested by the
police without warrant, he must be immediately informed of the grounds of his
arrest and in case of every arrest it must immediately be made known to the
arrested 346 person that he is entitled to apply for bail. The Maharashtra
State Board of Legal Aid & Advice will forthwith get a pamphlet prepared
setting out the legal rights of an arrested person and the State of Maharashtra
will bring out sufficient number of printed copies of the pamphlet in Marathi
which is the language of the people in the State of Maharashtra as also in
Hindi and English and printed copies of the pamphlet in all the three languages
shall be affixed in each cell in every police lock up and shall be read out to
the arrested person in any of the three languages which he understands as soon
as he is brought to the police station.
(iv) We would also direct that whenever a
person is arrested by the police and taken to the police lock up, the police
will immediately give an intimation of the fact of such arrest to the nearest
Legal Aid Committee and such Legal Aid Committee will take immediate steps far
the purpose of providing legal assistance to the arrested person at State cost
provided he is willing to accept such legal assistance. The State Government
will provide necessary funds to the concerned Legal Aid Committee for carrying
out this direction.
(v) We would direct that in the city of
Bombay, a City Sessions Judge, to be nominated by the principal Judge of the
City Civil Court, preferably a lady Judge, if there is one, shall make surprise
visits to police lock ups in the city periodically with a view to providing the
arrested persons an opportunity to air their grievances and ascertaining what
are the conditions in the police lock ups and whether the requisite facilities
are being provided and the provisions of law are being observed and the
directions given by us are being carried out. If it is found as a result of
inspection that there are any lapses on the part of the police authorities, the
City Sessions Judge shall bring them to the notice of the Commissioner of
Police and if necessary to the notice of the Home Department and if even this
approach fails, the City Sessions Judge may draw the attention of the Chief
Justice of the High Court of Mahrashtra to such lapses. This direction in
regard to police lock ups at the districts head quarters, shall be carried out
by the Sessions Judge of the district concerned.
(vi) We would direct that as soon as a person
is arrested, the police must immediately obtain from him the name of any
relative or friend whom he would like to be informed about his arrest and the
police should get in touch with such relative or friend and inform him about
the arrest; and lastly (vii) We would direct that the magistrate before whom an
arrested person is produced shall enquire from the arrested person whether he
has any complaint of torture or maltreatment in police custody and inform him
that he has right under section 54 of the Code of Criminal Procedure 1973 to be
medically examined. We are aware that section 54 of the Code of Criminal Procedure
1973 undoubtedly provides for examination of an arrested person by a medical
practitioner at the request of the arrested person and it is a right conferred
on the arrested person. But very often the arrested person is not aware of this
right and on account of his ignorance, he is unable to exercise this right even
though he may have been tortured or malterated by the police in police lock up.
It is for this reason that we are giving a specific direction requiring the
magistrate to inform the arrested person about this right of medical
examination in case he has any complaint of torture or mal-treatment in police
custody.
We have no doubt that if these directions
which are being given by us are carried out both in letter and spirit, they
will afford considerable protection to prisoners in police lock ups and save
them from possible torture or ill- treatment. The writ petition will stand
disposed of in terms of this order.
P.B.R.
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