PETITIONER:
FRANCIS CORALIE MULLIN
Vs.
RESPONDENT:
THE ADMINISTRATOR, UNION TERRITORY OF DELHI & ORS.
DATE OF JUDGMENT13/01/1981
BENCH:
BHAGWATI, P.N.
BENCH:
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]
JUDGMENT:
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
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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 can not 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.
533