PETITIONER:
SHEELA BARSE
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT15/02/1983
BENCH:
BHAGWATI, P.N.
BENCH:
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 any one 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]
JUDGMENT:
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 aud 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 practising in the
district court to visit the jail or jails in the district
atleast 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 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 direc-
347
tion 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.
348