PETITIONER:
SHEELA BARSE
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT18/09/1987
BENCH:
MISRA RANGNATH
BENCH:
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the permission to interview was withdrawn.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 thereunder, 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of a situation may not be published.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.
JUDGMENT:
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
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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 fulfil 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 gover-
217
nors 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 coting but becomes a
continuous process of government-an attitude and
habit of mind. But this important role people can
fulfil 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.
220
