Sheela
Barse Vs. State of Maharashtra [1987] INSC 258 (18 September 1987)
MISRA
RANGNATH MISRA RANGNATH DUTT, M.M. (J) CITATION: JT 1988 (3) 15
ACT:
Permission
to journalists to interview prisoners and tape-record the interviews,
guarantees under Articles 19(1)(a) and 21-Benefits thereof for all the
citizens.
HEADNOTE:
Sheela
Barse, a free lance journalist, sought permission to interview the female
prisoners in the Maharashtra State Jails. The permission was granted by the
Inspector-General of Prisons. As, how ever, the journalist started
tape-recording her interviews with the prisoners; the permission to interview
was withdrawn. Feeling aggrieved by the cancellation of the permission, the
journalist moved this Court in its writ jurisdiction on the ground that a
citizen has a right to know under Articles 19(1)(a) and 21 of the Constitution,
if the Government is administering the jails in accordance with law, and that
the Press has a special responsibility to collect information on public issues
to educate the people. The permission in question was cancelled, as stated by
the Inspector-General of Prisons in his counter-affidavit to the Writ Petition,
on the ground inter alia that the permission had been granted to the petitioner
in contravention of the Maharashtra Prison Manual and the rules made there under,
which govern the interviews with the prisoners; the petitioner, an amateur free
lance journalist not employed by any responsible newspaper, was not covered by
the said rules. The respondent also contended that the Articles of the
Constitution referred to by the petitioner were not attracted to the case.
Disposing
of the Writ Petition, the Court, ^ HELD: The term 'life' in Article 21 covers
the living conditions of the prisoners, prevailing in the jails. The prisoners
are also entitled to the benefit of the guarantees provided in the Article
subject to reason able restrictions.
It
is necessary that public gaze should be permitted on the prisoners, and the
pressmen as friends of the society and public spirited citizens should have
access to information about, and interviews with, the prisoners. But such
access has to be controlled and regulated. The petitioner is not entitled to
uncontrolled interviews. The factual information collected as a result of the
interviews should usually be 211 cross-checked with the authorities, so that a
wrong picture of a situation may not be published. Disclosure of correct
information is necessary, but there is to be no dissemination of wrong
information. Persons, who get permission to interview have to abide by
reasonable restrictions. As for tape-recording the interviews, there may be
cases where such tape-recording is necessary, but tape-recording is to be
subject to special permission of the appropriate authority. There may be some
individuals or class of persons in the prisons with whom interviews may not be
permitted for reasons indicated by this Court in Prabha Dutt v. Union of India
& ors., [1982] 1 S.C.R. 1184. The interviews cannot be forced upon anyone and
willingness of the prisoners to be interviewed is always to be insisted upon.
There may also be certain other cases, where, for good reasons, permission to
interview the prisoners may be withheld, which situations can be considered as
and when they arise. [215C; 217F; 218B, E-H; 219A-B] The petitioner can make a
fresh application for permission to interview the prisoners, which is to be
dealt with in accordance with the guidelines laid down hereinabove. [219B]
Prabha Dutt v. Union of India & ors., [1982] 1 S.C.R. 1184; Sunil Batra v.
Delhi Administrator, [1979] 1 S.C.R. 392 and Francis Coralie Mulin v.
Administrator, Union Territory of Delhi and ors., [19811 1 S.C.C. 608, referred
to.
ORIGINAL
JURISDICTlON: Writ Petition No. 1053 of 1982.
(Under
Article 32 of the Constitution of India). Suleman Khurshid and K.K. Luthra for
the Petitioner. S.B. Bhasme, A.M. Khanwilkar and A.S. Bhasme for the
Respondent. L.R. Singh for the Intervener.
The
Judgment of the Court was delivered by RANGANATH MISRA, J. Petitioner is a
Bombay-based free lance journalist who had sought permission to interview women
prisoners in the Maharashtra jails and on 6.5.1982, the Inspector-General of
Prisons of the State permitted her to do so in respect of female prisoners
lodged in the Bombay Central Jail, the Yerawada Central Jail at Pune and the
Kolhapur District Jail. When the petitioner started 212 tape-recording her
interviews with the prisoners at the Bombay Central Jail, she was advised
instead to keep notes only of interviews. When the petitioner raised objection
on this score, the Inspector-General of Prisons orally indicated that he had
changed his mind. Later, the petitioner was informed that grant of permission
to have interview was a matter of discretion of the Inspector- General and such
interviews are ordinarily allowed to research scholars only. Petitioner has
made grievance over the withdrawal of the permission and has pleaded that it is
the citizen's right to know if Government is administering the jails in
accordance with law. Petitioner's letter was treated as a writ petition under
Article 32 of the Constitution.
Return
has been made to the rule nisi and the Inspector-General of Prisons in his
affidavit has pleaded that the petitioner is a free lance journalist and is not
employed by any responsible newspaper. The permission issued in favour of the
petitioner was under administrative misunderstanding and mistaken belief and
was in contravention of the Maharashtra Prison Manual. When this fact was
discovered the permission was withdrawn. It has been pleaded that interview
with prisoners is governed by the rules made in the Maharashtra Prison Manual
and the petitioner does not satisfy the prescription therein so as to justify
grant of permission for having interviews with prisoners. The Inspector-General
wrote a letter to the petitioner on 31st May, 1982, explaining therein that
normally the prison authorities do not allow interviews with the prisoners
unless the person seeking interview is a research scholar studying for Ph. D. Or
intends to visit the prison as a part of his field work of curriculum
prescribed for post graduate course etc. The letter further indicated that
there was no rules for permitting interviews except to the relatives and legal
advisers for facilitating defence of prisoners. The Inspector-General further
indicated in his letter that there was no inherent right of journalists to
elicit information from prisoners.
The
counter affidavit further indicated that the State Government has prescribed a
set of rules known as the Maharashtra Visitors of Prisons Rules, 1962. A Board
of Visitors is constituted for every jail and the Board consists of both
ex-officio visitors and non-official visitors appointed by the State
Government. The members of the Board are expected to inspect the barracks, cell
wards, work sheds and other buildings; ascertain or make enquiries about the
health, cleanliness, security of prisoners and examine registers of convicted
and under trial prisoners, punishment books, other records relating to prisoners,
attend to representations, objections etc. made by prisoners, make 213 entries
in the visitors' book abou their visits. It was finally indicated in A the
counter affidavit that the petitioner was an amateur journalist and had
published 'certain articles in the newspapers and magazines without realising
the impact thereof; many of such allegations and the so-called hearsay stories
said to have been collected from the under trials were one-sided and nothing
but exaggeration of facts. Such articles written by her were defamatory,
irresponsible and no mature journalist would have published such reckless
articles.
We
have heard Mr. Salman Khurshid Ahmed for the petitioner and Mr. Bhasme for the
State of Maharashtra and have considered the written submissions filed on
behalf of both in furtherance of their submissions.
According
to the petitioner and her counsel Articles 19(1)(a) and 21 guarantee to every
citizen reasonable access to information about the institutions that formulate,
enact, implement and enforce the laws of the land. Every citizen has a right to
receive such information through public institutions including the media as it
is physically impossible for every citizen to be informed about all issues of
public importance individually and personally. As a journalist, the petitioner
has a right to collect and disseminate information to citizens. The press has a
special responsibility in educating citizens at large on every public issue.
The conditions prevailing in the Indian prisons where both under trial persons
and convicted prisoners are housed is directly connected with Article 21 of the
Constitution. It is the obligation of Society to ensure that appropriate
standards are maintained in the jails and humane conditions prevail therein. In
a participatory democracy as ours unless access is provided to the citizens and
the media in particular it would not be feasible to improve the conditions of
the jails and maintain the quality of the environment in which a section of the
population is housed segregated from the rest of community.
On
behalf of the State it has been contended that neither of the Articles is
attracted to a matter of this type. The rules made by the Government are
intended to safeguard the interests of the prisoners. The Board contemplated
under the Rules consists of several public officers both executive and
judicial. Apart from that there is a body of non-official visitors as provided
in Rule 5 of the Maharashtra Rules. Detailed provisions have been made in the
Rules as to the duties of the visitors and the manner in which the visitors
have to perform the same. It has been further contended that the idea of
segregating the prisoners from the community is to keep the prisoners under
strict control and H 214 cut off from the community. If unguided and
uncontrolled right of visit is provided to citizens it would be difficult to
maintain discipline and the very purpose of keeping the delinquents in prison
would be frustrated.
In
the case of Prabha Dutt v. Union of India & ors., 119821 1 SCR 1184 this
Court was considering the claim of a jounalist to interview two condemned
prisoners awarding execution. The learned Chief Justice said:
"Before
considering the merits of the application, we would like to observe that the
constitutional right to freedom of speech and expression conferred by Article
19(1)(a) of the Constitution, which includes the freedom of the press, is not
an absolute right, nor indeed does it confer any right on the press to have an
unrestricted access to means of information. The press is entitled to exercise
its freedom of speech and expression by publishing a matter which does not
invade the rights of other citizens and which does not violate the sovereignty
and integrity of India, the security of the State, public order, decency and
morality. But in the instant case, the right claimed by the petitioner is not
the right to express any particular view or opinion but the right to means of
information through the medium of an interview of the two prisoners who are
sentenced to death. No such right can be claimed by the press unless in the
first instance, the person sought to be interviewed is willing to be
interviewed. The existence of a free press does not imply or spell out any
legal obligation on the citizens to supply there is under section 161 (2) of
the Criminal Procedure Code. No data has been made available to us on the basis
of which it would be possible for us to say that the two prisoners are ready
and willing to be interviewed Dealing with the matter further learned Chief
Justice stated:
"Rule
549 (4) of the Manual for the Superintendence and Management of Jails, which is
applicable to Delhi, provides that every prisoner under a sentence of death
shall be allowed such interviews and other communications with his relatives,
friends and legal advisers as the Superintendent thinks reasonable.
Journalists
or newspapermen are not 215 expressly referred to in clause (4) but that does
not mean that they can always and without good reasons be denied the
opportunity to interview a condemned prisoner. If in any given case, there are
weighty reasons for doing so, which we expect will always be recorded in
writing, the interview may appropriately be refused. But no such consideration
has been pressed upon us and therefore we do not see any reason why
newspapermen who can broadly, and we suppose without great fear of
contradiction, be termed as friends of the society be denied the right of an
interview under clause (4) of the Rule 549." That Article 19(1)(a) of the
Constitution guarantees to all citizens to freedom of speech and expression is
not the point in issue; but the enlarged me. ng given to the provisions of
Article 21 by this Court would, however, is relevant. The meaning given to the
term 'life' will cover the living condition prevailing in jails.
In
Sunil Batra v. Delhi Administration, [1979] 1 SCR 392 a Constitution Bench of
this Court was examining the effect of Article 21 in regard to a condemned
prisoner. The Court observed thus:
"Judges,
even within a prison setting, are the real, though restricted, ombudsmen
empowered to prescribe and prescribe, humanize and citizens and life-style
within the carcers. The operation of Articles 14, 19 and 21 may be pared down
for a prisoner but not puffed out altogether. For example, public addresses by
prisoners may be put down but talking to fellow prisoners cannot. Vows of
silence or taboos on writing poetry or drawing cartoons are violative of
Article 19. So also, locomation may be limited by the needs of imprisonment but
binding hand and foot, with hoops of steel, every man or woman sentenced for a
term is doing violence to Part III .. " The Constitution Bench quoted with
approval from Munn v. Ilino's, [1877] 94, U.S. 113, to emphasise the quality of
life covered by Article 21. The same Constitution Bench judgment further
states: - "..... so, when human rights are hashed behind bars,
constitutional justice impeaches such law.
In
this sense, courts which sign citizens into prisons have an onerous duty to
ensure that, during detention and subject to the 216 Constitution, freedom from
torture belongs to the detenu." In Francis Coralie Mulin v. Administrator,
Union Territory of Delhi & ors., [1981] 1 Scc 608 this Court pointed out
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 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 .. ..
It
was also pointed out in this case that 'life' included the right to live with
human dignity In A.K. Roy etc. v. Union of India & Anr., [ 1982]2 SCR the
word was found:
"..........
to include the necessity of right such as nutrition, clothing shelter over the
head, facilities for reading, writing, interviews with members of the family
and friends, subject, of course, to present regulation, if any . . . . . .
.
. . . .
Counsel
for the petitioner relied upon the observations of this Court in the case of
S.P. Gupta & Ors. v. Union of India & ors., [1982] 2 SCR 365 at page
598, where it was said:
"Now
it is obvious from the Constitution that we have adopted a democratic form of
Government.
Where
a society has chosen to accept democracy as its creda faith it is elementary
that the citizens ought to know what their government is doing The citizens
have a right to decide by whom and by what rules they shall be governed and
they are entitled to call on those who govern on their behalf to account for
their conduct No democratic government can survive without accountability and
the basic postulate of accountability is that the people should have
information about the functioning of the government. It is only if people know
how government is functioning that they can fulfill the role which democracy
assigns to them and make democracy a really effective participatory democracy.
"Knowledge said James Madison, 'will for ever govern ignorance and a people
who mean to be their own governors must arm themselves with the power knowledge
gives. a popular government without popular information on the means of
obtaining it, is but a prologue to a force or tragedy or perhaps both'.
The
citizens' right to know the facts, the true facts, about the administration of
the country is thus one of the pillars of a democratic State. And that is why
the demand for openness in the government is increasingly growing in different
parts of the world." "The demand for openness in the government is
based principally on two reasons. It is now widely accepted that democracy does
not consist merely in people exercising their franchise once in five years to
choose their rulers, and once the vote is cast, then retiring in passivity and
not taking any interest in the government. Today it is common ground that
democracy has a more positive content and its orchestration has to be
continuous and pervasive. This means inter alia that people should not only
cast intelligent and rational votes but should also exercise sound judgment on
the conduct of the government and the merits of public policies, so that
democracy does not remain merely a sporadic exercise in costing but becomes a
continuous process of government-an attitude and habit of mind. But this
important role people can fulfill in a democracy only if it is an open
government where there is a full access to information in regard to the functioning
of the government. "We endorse these observations as a correct statement
of the position. We also reiterate the views expressed in several decisions of
this Court that "life" in Article 21 has the extended meaning given
to the word and those citizens who are detained in prisons either as
under-trials or as convicts are also entitled to the benefit of the guarantees
subject to reasonable restrictions.
Judicial
notice should be taken of the position that on account of intervention of
courts there has been a substantial improvement in the conditions prevailing in
jails. The provisions of jail manuals have undergone change;
the
authorities connected with the jail administration have changed their approach
to administration and method of control there has been a new awakening both in
citizens in general and the people detained in jail. Indisputably intervention
of the courts has been possible on account of petitions and protests lodged
from jails;
218
news items published in the Press. We may not be taken to mean that the rules
prescribed for administration of prisons are of no value at all. Yet, until the
appropriate attitude grows in the administrative establishment the provisions
in the several manuals applicable to the jails in the country would not provide
adequate safeguard for implementation of the standards indicated in judicial
decisions. It is, therefore, necessary that public gaze should be directed to
the matter and the pressmen as friends of the society and public spirited
citizens should have access not only to information but also interviews. Prison
administrators have the human tendency of attempting to cover up their lapses
and so shun disclosure thereof. As an instance, we would like to refer to
incidents in the Tihar Jail located at the country's capital under the very
nose of the responsible administrators.
In
such a situation we are of the view that public access should be permitted. We
have already pointed out that the citizen does not have any right either under
Article 19(1)(a) or 21 to enter into the jails for collection of information
but in order that the guarantee of the fundamental right under Article 21 may
be available to the citizens detained in the jails, it becomes necessary to
permit citizen's access to information as also interviews with prisoners.
Interviews become necessary as otherwise the correct information may not be
collected but such access has got to be controlled and regulated.
We
are, therefore, not prepared to accept the petitioner's claim that she was
entitled to uncontrolled interview. We agree with the submission of Mr. Bhasme
for the respondent that as and when factual information is collected as a
result of interview the same should usually be cross-checked with the
authorities so that a wrong picture of the situation may not be publised. While
disclosure of correct information is necessary, it is equally important that
there should be no dissemination of wrong information. We assume that those who
receive permission to have interviews will agree to abide by reasonable
restrictions. Most of the manuals provide restrictions which are reasonable. As
and when reasonableness of restrictions is disputed it would be a matter for
examination and we hope and trust that such occasions would be indeed rare. We
see reason in the stand adopted by Mr. Bhasme relating to the objections of his
client about tape-recording by interviewers. There may be cases where such
tape-recording is necessary but we would like to make it clear that
tape-recording should be subject to special permission of the appropriate
authority. There may be some individuals or class of persons in prison with
whom interviews may not be permitted for the reasons indicated by this Court in
the case of 219 Prabha Dutt (supra). We may reiterate that interviews cannot be
a forced and willingness of the prisoners to be interviewed would always be insisted
upon. There may be certain other cases where for good reason permission may
also be withheld. These are situations which can be considered as and when they
arise.
The
petitioner is free to make an application to the prescribed authority for the
requisite permission and as and when such application is made, keeping the
guidelines indicated above, such request may be dealt with. There will be no
order for costs.
S
. L. Petition disposed of.
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