{"id":54075,"date":"1981-01-13T00:00:00","date_gmt":"1981-01-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/francis-coralie-mullin-vs-the-administrator-union-on-13-january-1981"},"modified":"2016-08-31T17:23:23","modified_gmt":"2016-08-31T11:53:23","slug":"francis-coralie-mullin-vs-the-administrator-union-on-13-january-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/francis-coralie-mullin-vs-the-administrator-union-on-13-january-1981","title":{"rendered":"Francis Coralie Mullin vs The Administrator, Union … on 13 January, 1981"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Francis Coralie Mullin vs The Administrator, Union … on 13 January, 1981<\/div>\n
Equivalent citations: 1981 AIR 746, \t\t 1981 SCR (2) 516<\/div>\n
Author: P Bhagwati<\/div>\n
Bench: Bhagwati, P.N.<\/div>\n
           PETITIONER:\nFRANCIS CORALIE MULLIN\n\n\tVs.\n\nRESPONDENT:\nTHE ADMINISTRATOR, UNION TERRITORY OF DELHI & ORS.\n\nDATE OF JUDGMENT13\/01\/1981\n\nBENCH:\nBHAGWATI, P.N.\nBENCH:\nBHAGWATI, P.N.\nFAZALALI, SYED MURTAZA\n\nCITATION:\n 1981 AIR  746\t\t  1981 SCR  (2) 516\n 1981 SCC  (1) 608\t  1981 SCALE  (1)79\n CITATOR INFO :\n RF\t    1981 SC2041\t (9)\n D\t    1982 SC 710\t (92,93)\n D\t    1982 SC1029\t (14)\n MV\t    1982 SC1325\t (16,36,75)\n R\t    1982 SC1473\t (11)\n E&D\t    1985 SC1618\t (9)\n R\t    1986 SC 180\t (39,42)\n RF\t    1986 SC 847\t (12)\n RF\t    1987 SC 990\t (16)\n R\t    1991 SC 101\t (239)\n RF\t    1991 SC1902\t (24)\n RF\t    1992 SC1858\t (10)\n\n\nACT:\n     Right of  the  detenu  under  Conservation\t of  Foreign\nExchange &  Prevention of  Smuggling Activities Act, to have\ninterview with\ta lawyer  and the  members  of\this  family-\nSection 3(b)(i)\t & (ii)\t read with  rule 559A and 550 of the\nPunjab Manual  of  the\tSuperintendence\t and  Management  of\nJails-Whether  violates\t  Articles  14\t and   21   of\t the\nConstitution   and    hence   invalid-Distinction    between\npreventive detention with punitive detention-Constitution of\nIndia 1950 Article 21, scope of.\n\n\n\nHEADNOTE:\n     Allowing the writ petition, the Court\n^\n     HELD :  (1) While\tconsidering the question of validity\nof conditions  of detention  courts must necessarily bear in\nmind the  vital distinction between preventive detention and\npunitive  detention.   Punitive\t detention  is\tintended  to\ninflict punishment on a person, who is found by the judicial\nprocess to  have  committed  an\t offence,  while  preventive\ndetention is  not by  way of  punishment at  all, but  it is\nintended to  pre-empt a\t person from  indulging\t in  conduct\ninjurious to the society. [523 A-B]\n     (2)  The\tpower  of   preventive\tdetention  has\tbeen\nrecognised as  a necessary  evil and  is tolerated in a free\nsociety in  the larger interest of security of the State and\nmaintenance of public order. It is a drastic power to detain\na person  without trial\t and in\t many countries\t it  is\t not\nallowed\t to   be  exercised   except  in  times\t of  war  or\naggression.  The  Indian  Constitution\tdoes  recognise\t the\nexistence of  this power,  but it  is hedged-in\t by  various\nsafeguards set\tout in\tArticles 21  and 22.  Article 22  in\nclauses\t (4)  to  (7)  deals  specifically  with  safeguards\nagainst preventive  detention and  enjoins that\t any law  of\npreventive  detention\tor  action   by\t way  of  preventive\ndetention taken\t under such  law must  be in conformity with\nthe restrictions  laid down  by those  clauses\ton  pain  of\ninvalidation, Article  21 also lays down restrictions on the\npower of preventive detention. [523 B-D]\n     Article 21\t as  interpreted  in  Maneka  Gandhi's\tcase\nrequires that  no one  shall be\t deprived  of  his  life  or\npersonal liberty except by procedure established  by law and\nthis procedure\tmust be\t reasonable, fair  and just  and not\narbitrary, whimsical  or fanciful and it is for the Court to\ndecide in  the\texercise  of  its  constitutional  power  or\njudicial review\t whether the deprivation of life or personal\nliberty\t in   a\t given\t case  is  by  procedure,  which  is\nreasonable, fair  and just  or it  is otherwise.  The law of\npreventive detention must, therefore, pass the test not only\nof Article  22 but  also of  Article 21.  But, despite these\nsafeguards laid\t down by  the  Constitution  and  creatively\nevolved by  the Courts. the power of preventive detention is\na frightful  and awesome  power\t with  drastic\tconsequences\naffecting personal liberty, which is the most cherished\n517\nand prized possession of man in a civilised society. It is a\npower to be exercised with the greatest care and caution and\nthe courts  have to  be ever vigilant to see that this power\nis  not\t abused\t or  misused,  inasmuch\t as  the  preventive\ndetention is qualitatively different from punitive detention\nand their  purposes  are  different.  In  case\tof  punitive\ndetention, the\tperson has  fullest  opportunity  to  defend\nhimself,  while\t  in  case   of\t preventive  detention,\t the\nopportunity that  he has  for contesting  the action  of the\nExecutive is  very  limited.  Therefore,  the  \"restrictions\nplaced on  a person preventively detained must, consistently\nwith the effectiveness of detention, be minimal\". [524A-G]\n     Maneka Gandhi v. Union of India,<\/a> [1979] 1 SCC 248; M.O.\nHoscot v. State of Maharashtra, [1979] 1 SCR 192; Hussainara\nKhatoon v.  State of Bihar, [1980] 1 SCC 81; Sunil Batra (I)\nv. Delhi  Administration,<\/a> [1979] 1 SCR 392; Sunil Batra (II)\nv. Delhi Administration,<\/a> [1980] 2 SCR 557, referred to.\n     Sampat Prakash  v. State of Jammu and Kashmir,<\/a> [1969] 3\nSCR 574, followed.\n     3. The  prisoner or  detenu  has  all  the\t fundamental\nrights and  other legal\t rights available  to a free person,\nsave those  which are  incapable of  enjoyment by  reason of\nincarceration. A  prisoner or  detenu is not stripped of his\nfundamental or\tother legal  rights, save  those  which\t are\ninconsistent with  his incarceration,  and if  any of  these\nrights are  violated, the Court will immediately spring into\naction and run to his rescue. [525 B-C, 526 G-H, 527 A]\n     Sunil Batra  (I) v.  Delhi Administration,<\/a> [1979] 1 SCR\n392; Sunil  Batra (II) v. Delhi Administration,<\/a> [1980] 2 SCR\n557, State of Maharashtra v. Prabhakar Sanzgire<\/a> [1966] 1 SCR\n702; D.\t B. Patnaik v. State of Andhra Pradesh,<\/a> [1975] 2 SCR\n24, followed.\n     Eve Pall's\t Case, 417  US 817:  41 Lawyers\t Edition 2nd\n495; Charles Wolffs Case, 41 Lawyers Edition 2nd 935, quoted\nwith approval.\n     (4) While arriving at the proper meaning and content of\nthe right to life, the attempt of the court should always be\nto expand  the reach  and ambit\t of  the  fundamental  right\nrather\tthan   to  attenuate  its  meaning  and\t content.  A\nconstitutional provision  must be construed, not in a narrow\nand constricted\t sense, but  in a wide and liberal manner so\nas to anticipate and take account of changing conditions and\npurposes so  that the  constitutional provision does not get\natrophied or  fossilized but remains flexible enough to meet\nthe newly  emerging problems  and challenges. This principle\napplies with  greater force  in relation  to  a\t fundamental\nright enacted  by the Constitution. The fundamental right to\nlife which  is the most precious human right and which forms\nthe ark of all other rights must therefore be interpreted in\na broad\t and expansive\tspirit\tso  as\tto  invest  it\twith\nsignificance and vitality which may endure for years to come\nand enhance  the dignity  of the individual and the worth of\nthe human person. [527 C-D, 528 A-C]\n     Weems v.  U.S. 54\tLawyers\t Edition  801,\tquoted\twith\napproval.\n     (5) The right to life enshrined in Article 21 cannot be\nrestricted to mere animal existence. It means something much\nmore than just physical survival.\n518\nEvery limb  or faculty through which life is enjoyed is thus\nprotected by Article 21 and a fortiorari, this would include\nthe faculties of thinking and feeling. Now deprivation which\nis inhibited  by Article  may be  total or partially neither\nany limb  or faculty  can be totally destroyed nor can it be\npartially damaged.  Moreover it is every kind of deprivation\nthat is\t hit by\t Article 21,  whether  such  deprivation  be\npermanent or  temporary and, furthermore, deprivation is not\nan act\twhich  is  complete  once  and\tfor  all:  it  is  a\ncontinuing act\tand so\tlong as\t it lasts,  it\tmust  be  in\naccordance with\t procedure established by law. Therefore any\nact which  damages or  injures or interferes with the use of\nany limb  or faculty  of a person either permanently or even\ntemporarily, would  be within  the inhibition of Article 21.\n[528 D, G-H, 529 A]\n     Kharak Singh  v. State  of Uttar  Pradesh, [1964] 1 SCR\n232, followed.\n     Munn v. Illinois [1877] 94 US 133, referred to.\n     Sunil Batra  v. Delhi Administration,<\/a> [1980] 2 SCR 557,\napplied.\n     (6) The  right to\tlife includes the right to live with\nhuman dignity  and all\tthat goes along with it, namely, the\nbare  necessaries   of\tlife  such  as\tadequate  nutrition,\nclothing and shelter and facilities for reading, writing and\nexpressing oneself in diverse forms, freely moving about and\nmixing\tand   commingling  with\t fellow\t human\tbeings.\t The\nmagnitude and  content of the components of this right would\ndepend upon  the extent\t of the\t economic development of the\ncountry, but it must, in any view of the matter, include the\nright to the basic necessities of life and also the right to\ncarry on  such functions  and activities  as constitute\t the\nbare minimum  expression of  the human self. Every act which\noffends against\t or impairs  human dignity  would constitute\ndeprivation pro\t tanto of  this right  to live\tand it would\nhave to\t be in\taccordance with\t reasonable, fair  and\tjust\nprocedure established  by law which stands the test of other\nfundamental rights. Therefore, any form of torture or cruel,\ninhuman or  degrading treatment\t would be offensive to human\ndignity and constitute an inroad into this right to live and\nit would,  on this  view, be prohibited by Article 21 unless\nit is in accordance with procedure prescribed by law, but no\nlaw which  authorises and  no procedure\t which leads to such\ntorture or  cruelty, inhuman or degrading treatment can ever\nstand the  test of  reasonableness and non-arbitrariness: it\nwould  plainly\t be  unconstitutional\tand  void  as  being\nviolative of Article 14 and 21. [529 B-F]\n     (7) There\tis implicit  in\t Article  21  the  right  to\nprotection against  torture or\tcruel, inhuman\tor degrading\ntreatment which\t is enunciated in Article 5 of the Universal\nDeclaration of\tHuman Rights  and guaranteed by Article 7 of\nthe international  Covenant on\tCivil and  Political Rights.\nThis right  to live  which is  comprehended within the broad\nconnotation of\tthe right to life can concededly be abridged\naccording to  procedure established  by law  and  therefore,\nwhen a\tperson is lawfully imprisoned, this right to live is\nbound to  suffer attenuation  to the  extent to\t which it is\nincapable of  enjoyment\t by  reason  of\t incarceration.\t The\nprisoner or  detenu obviously  cannot move  about freely  by\ngoing outside  the prison  walls nor can be socialise at his\nfree will with persons outside the jail. But, as part of the\nright to  live\twith  human  dignity  and  therefore,  as  a\nnecessary component  of the  right  to\tlife,  he  would  be\nentitled to  have interviews  with the members of his family\nand friends  and no prison regulation or procedure laid down\nby prison regulation regulating the right to have interviews\nwith the members of the family and\n519\nfriends\t can  be  upheld  as  constitutionally\tvalid  under\nArticle 14 and 21, unless it is reasonable, fair and just.\n     Considered from  the point of view also of the right to\npersonal liberty  enshrined in Article 21, the right to have\ninterviews with members of the family and friends is clearly\npart of\t personal liberty guaranteed under that Article. The\nexpression \"personal  liberty\" occurring in Article 21 is of\nthe widest amplitude and it covers a variety of rights which\ngo to  constitute the  personal liberty of a man and it also\nincludes rights\t which \"have  been raised  to the  status of\ndistinct Fundamental  Rights and given additional protection\nunder Article 19\". Therefore, personal liberty would include\nthe right  to socialise\t with  members\tof  the\t family\t and\nfriends subject,  of course, to any valid prison regulations\nand under  Articles 14\tand 21, such prison regulations must\nbe reasonable and non-arbitrary. If any prison regulation or\nprocedure laid\tdown by\t it regulating\tthe  right  to\thave\ninterviews  with  members  of  the  family  and\t friends  is\narbitrary or  unreasonable, it\twould be liable to be struck\ndown as\t invalid as  being violative  of Articles 14 and 21.\n[530 B-E]\n     Maneka Gandhi  v. Union  of India,<\/a>\t [1979] 1  SCC\t248,\napplied.\n     (8) Sub-clause (ii) of clause 3(b) of the Conditions of\nDetention Order is violative of Articles 14 and 21 in so far\nas it  permits only  one interview  in a  month to a detenu.\nWhen an\t under-trial prisoner  is granted  the\tfacility  of\ninterviews with\t relatives and friends twice in a week under\nRule 559A  and a  convicted prisoner  is permitted  to\thave\ninterviews with\t his relatives\tand friends,  once in a week\nunder Rule  550, sub-clause  (ii)  of  clause  3(b)  of\t the\nConditions of Detention Order, which restricts the interview\nonly to\t one in a month in case of a detenu, is unreasonable\nand arbitrary,\tparticularly  when  a  detenu  stands  on  a\nhighest pedestal  than an under-trial prisoner or a convict.\nA detenu  must be  permitted to have at least two interviews\nin a  week with\t relatives and\tfriends\t and  it  should  be\npossible for  relative or  friend to have interview with the\ndetenu at  any reasonable  hour on obtaining permission from\nthe  Superintendent  of\t the  Jail  and\t it  should  not  be\nnecessary to seek the permission of the District Magistrate,\nDelhi,\tas  the\t latter\t procedure  would  be  cumbrous\t and\nunnecessary from  the point  of view  of security  and hence\nunreasonable. Even  independently of  Rules 550 and 559A, of\nthe Punjab  Manual for the Superintendence and Management of\nJails, the  present norm  of two  interviews in\t a week\t for\nprisoners   furnishes\ta   reasonable\t and   non-arbitrary\ncriterion. [530 F-H, 531 A-B]\n     Sampath Prakash v. State of Jammu and Kashmir,<\/a> [1969] 3\nSCR 574, applied.\n     (9) Sub-clause  (i) of clause 3(b) of the Conditions of\nDetention Order\t regulating the\t right of  a detenu  to have\ninterview with a legal adviser of his choice is violative of\nArticle 14  and 21  and therefore unconstitutional and void,\nIt would be quite reasonable if a detenu were to be entitled\nto have\t interview with\t his legal adviser at any reasonable\nhour during  the  day  after  taking  appointment  from\t the\nSuperintendent of  the Jail,  which  appointment  should  be\ngiven by the Superintendent without any avoidable delay. The\ninterview need not necessarily take place in the presence of\na nominated  officer of\t Customs\/ Central Excise\/Enforcement\nbut if\tthe presence  of such  officer can  be\tconveniently\nsecured at  the time  of the interview without involving any\npostponement of\t the interview, than such officer and if his\npresence cannot be so secured,\n520\nthen any  other Jail  official may,  if\t thought  necessary,\nwatch the  interview but  in a\tmonth to  a detenu.  When an\nunder-trial prisoner is granted the facility [532C-F]\n     (10) The  right of\t a detenu to consult a legal adviser\nof his\tchoice for  any purpose\t not necessarily  limited to\ndefence in  a criminal\tproceeding  but\t also  for  securing\nrelease from preventive detention or filling a writ petition\nor prosecuting any claim or proceeding, civil or criminal is\nobviously included  in the  right to live with human dignity\nand is\talso part  of personal liberty and the detenu cannot\nbe deprived  of this  right nor can this right of the detenu\nbe interfered  with except  in accordance  with\t reasonable,\nfair and just procedure established by a valid law. [531C-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION: Writ Petition No. 3042 of 1980.
\n     (Under Article 32 of the Constitution.)
\n     N. M.  Ghatate  (Dr.)  and\t S.  V.\t Deshpande  for\t the
\nPetitioner.\n<\/p>\n
     Hardayal Hardy  and M.  N. Shroff\tfor the\t Respondents
\nNos. 1-2.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     BHAGWATI, J.  This petition  under Article\t 32  of\t the
\nConstitution raises  a question\t in regard of the right of a
\ndetenu\tunder\tthe  Conservation   of\tForeign\t Exchange  &
\nPrevention of Smuggling Activities Act (hereinafter referred
\nto as  COFEPOSA Act) to have interview with a lawyer and the
\nmembers of his family. The facts giving rise to the petition
\nare few and undisputed and may be briefly stated as follows:\n<\/p>\n
     The petitioner, who is a British national, was arrested
\nand detained in the Central Jail, Tihar under an Order dated
\n23rd November  1979 issued  under section  3 of the COFEPOSA
\nAct. She  preferred a  petition in  this Court for a writ of
\nhabeas corpus  challenging her\tdetention, but by a judgment
\ndelivered by  this Court on 27th February 1980, her petition
\nwas rejected  with the\tresult that  she continued to remain
\nunder detention\t in the\t Tihar Central\tJail.  Whilst  under
\ndetention,   the    petitioner\t experienced\tconsiderable
\ndifficulty in  having interview\t with  her  lawyer  and\t the
\nmembers of  her family.\t Her daughter  aged about five years
\nand her\t sister, who  was looking  after the  daughter, were
\npermitted to  have interview  with her\tonly once in a month
\nand she\t was not  allowed to  meet her\tdaughter more often,
\nthough a  child of  very tender\t age.  It  seems  that\tsome
\ncriminal proceeding  was pending  against the petitioner for
\nattempting to smuggle hashish out of the country and for the
\npurpose of  her defence\t in such criminal proceeding, it was
\nnecessary for her to consult her lawyer, but even her lawyer
\nfound it  difficult to\tobtain an interview with her because
\nin order to arrange an interview, he was
\n521<\/span>
\nrequired to  obtain  prior  appointment\t from  the  District
\nMagistrate, Delhi and the interview could take place only in
\nthe presence of a Customs Officer nominated by the Collector
\nof Customs.  This procedure  for obtaining  interview caused
\nconsiderable  hardship\tand  inconvenience  and\t there\twere
\noccasions when,\t even after obtaining prior appointment from
\nthe District Magistrate, Delhi, her lawyer could not have an
\ninterview with her since no Customs Officer nominated by the
\nCollector of Customs remained present at the appointed time.
\nThe petitioner\twas thus  effectively denied the facility of
\ninterview with\ther lawyer  and even  her young\t daughter  5
\nyears old  could not  meet her\texcept once in a month. This
\nrestriction  on\t  interviews  was   imposed  by\t the  Prison
\nAuthorities by\tvirtue of  clause 3(b)\tsub-clauses (i)\t and\n<\/p>\n
(ii) of\t the Conditions\t of Detention laid down by the Delhi
\nAdministration under  an Order dated 23rd August 1975 issued
\nin exercise  of the  powers conferred under section 5 of the
\nCOFEPOSA Act.  These two sub-clauses of clause 3(b) provided
\ninter alia as under:\n<\/p>\n
\t  “3.  The conditions  of detention  in\t respect  of
\n     classification and interviews shall be as under:-\n<\/p><\/blockquote>\n
\t  (a) ……….\n<\/p><\/blockquote>\n
\t  (b)  Interviews: Subject  to the  direction issued
\n\t       by  the\tAdministrator  from  time  to  time,
\n\t       permission for the grant of interviews with a
\n\t       detenu  shall  be  granted  by  the  District
\n\t       Magistrate, Delhi as under:-\n<\/p><\/blockquote>\n
\t       (i)  Interview with legal adviser:\n<\/p><\/blockquote>\n
\t\t    Interview\twith\tlegal\tadviser\t  in
\n\t\t    connection with defence of a detenu in a
\n\t\t    criminal  case  or\tin  regard  to\twrit
\n\t\t    petitions and  the like,  may be allowed
\n\t\t    by prior appointment, in the presence of
\n\t\t    an officer\tof  Customs\/Central  Excise\/
\n\t\t    Enforcement to be nominated by the local
\n\t\t    Collector of  Customs\/Central Excise  or
\n\t\t    Deputy  Director   of  Enforcement\t who
\n\t\t    sponsors the case for detention.\n<\/p><\/blockquote>\n
\t       (ii) Interview with family members:\n<\/p><\/blockquote>\n
\t\t    A monthly interview may be permitted for
\n\t\t    members  of\t the  family  consisting  of
\n\t\t    wife, children  or parents of the detenu
\n\t\t    ……….”\n<\/p><\/blockquote>\n
The petitioner,\t therefore, preferred  a  petition  in\tthis
\nCourt  under   Article\t32  challenging\t the  constitutional
\nvalidity of sub-clauses (i)
\n522<\/span>
\nand (ii) of clause 3(b) of the Conditions of Detention Order
\nand praying that the Administrator of the Union Territory of
\nDelhi and  the\tSuperintendent\tof  Tihar  Central  Jail  be
\ndirected to permit her to have interview with her lawyer and
\nthe  members  of  her  family  without\tcomplying  with\t the
\nrestrictions laid down in those sub-clauses.\n<\/p>\n
     The  principal   ground  on  which\t the  constitutional
\nvalidity of  sub-clauses (i)  and (ii) of clause 3(b) of the
\nConditions of  Detention Order was challenged was that these
\nprovisions were\t violative of  Articles 14  and\t 21  of\t the
\nConstitution   inasmuch\t  as   they   were   arbitrary\t and
\nunreasonable. It  was contended\t on behalf of the petitioner
\nthat allowing  interview with the members of the family only
\nonce  in   a  month  was  discriminatory  and  unreasonable,
\nparticularly when  under-trial prisoners  were\tgranted\t the
\nfacility of  interview with relatives and friends twice in a
\nweek under  Rule 559A and convicted prisoners were permitted
\nto have interview with their relatives and friends once in a
\nweek under  Rule 550  of the Rules set out in the Manual for
\nthe Superintendence  and Management  of Jails in the Punjab.
\nThe petitioner\talso urged  that a detenu was entitled under
\nArticle 22 of the Constitution to consult and be defended by
\na legal\t practitioner of  his choice  and she was, therefore
\nentitled to  the facility of interview with a lawyer whom he
\nwanted to  consult or  appear for  him in a legal proceeding
\nand the\t requirement of\t prior appointment for interview and
\nof the\tpresence of  a Customs\tor  Excise  Officer  at\t the
\ninterview  was\tarbitrary  and\tunreasonable  and  therefore
\nviolative of  Articles 14  and 21.  The respondents resisted
\nthe contentions\t of the\t petitioner and\t submitted that sub-
\nclauses (i)  and (ii)  of clause  3(b) were not violative of
\nArticles 14  and 21,  since the restrictions imposed by them
\nwere reasonable,  fair and  just, but stated that they would
\nhave no\t objection if  instead of  a monthly  interview, the
\npetitioner was\tgranted the  facility of  interview with her
\ndaughter and sister twice in a week as in the case of under-
\ntrial prisoners\t and so\t far as interview with the lawyer is
\nconcerned, they\t would not  insist  on\tthe  presence  of  a
\ncustoms or excise officer at the interview. Though these two
\nconcessions were  made on  behalf of  the respondents at the
\nhearing of  the\t petition  before  us,\tthe  question  still
\nremains whether\t sub-clause (i)\t and (ii)  of cl.  3(b)\t are
\nvalid and  it is  necessary  that  we  should  examine\tthis
\nquestion in  the context of our constitutional values, since
\nthere are  a large  number of detenus under the COFEPOSA Act
\nand  the   conditions  of   their  detention  in  regard  to
\ninterviews must be finally settled by this Court.\n<\/p>\n
     Now it  is necessary  to bear  in mind  the distinction
\nbetween ‘preventive detention’ and punitive detention’, when
\nwe are considering
\n523<\/span>
\nthe question  of validity  of conditions of detention. There
\nis a vital distinction between these two kinds of detention.
\n‘Punitive detention’  is intended to inflict punishment on a
\nperson, who  is\t found\tby  the\t judicial  process  to\thave
\ncommitted an offence, while ‘preventive detention’ is not by
\nway of\tpunishment at  all, but it is intended to pre-empt a
\nperson from  indulging in  conduct injurious to the society.
\nThe power  of preventive  detention has been recognised as a
\nnecessary evil\tand is\ttolerated in  a free  society in the
\nlarger interest\t of security of the State and maintenance of
\npublic order.  It is  a drastic\t power to  detain  a  person
\nwithout trial  and there  are many countries where it is not
\nallowed\t to   be  exercised   except  in  times\t of  war  or
\naggression. Our Constitution does recognise the existence of
\nthis power,  but it  is hedged-in  by various safeguards set
\nout in\tArticles 21  and 22.  Art. 22 in clauses (4) to (7),
\ndeals  specifically   with  safeguards\t against  preventive
\ndetention and  any law\tof preventive detention or action by
\nway of\tpreventive detention taken under such law must be in
\nconformity with\t the restrictions laid down by those clauses
\non pain\t of invalidation.  But apart  from Art. 22, there is
\nalso Art.  21 which  lays down\trestrictions on the power of
\npreventive detention.  Until the  decision of  this Court in
\nManeka\tGandhi.\t v.  Union  of\tIndia,<\/a>\ta  very\t narrow\t and
\nconstricted meaning  was given\tto the guarantee embodied in
\nArt. 21\t and that article was understood to embody only that
\naspect of  the rule of law, which requires that no one shall
\nbe deprived  of his  life or  personal liberty\twithout\t the
\nauthority of  law. It  was construed  only  as\ta  guarantee
\nagainst executive  action unsupported  by law.\tSo  long  as
\nthere was some law, which prescribed a procedure authorising
\ndeprivation of\tlife or personal liberty, it was supposed to
\nmeet the requirement of Art. 21. But in Maneka Gandhi’s case
\n(supra), this  Court for  the first  time  opened-up  a\t new
\ndimension of  Art. 21 and laid down that Art. 21 is not only
\na guarantee against executive action unsupported by law, but
\nis also\t a restriction\ton law\tmaking. It  is not enough to
\nsecure compliance  with the  prescription of Article 21 that
\nthere should  be a  law\t prescribing  some  semblance  of  a
\nprocedure for  depriving a  person of  his life\t or personal
\nliberty, but  the procedure  prescribed by  the law  must be
\nreasonable, fair and just and if it is not so, the law would
\nbe void\t as violating  the guarantee  of Art. 21. This Court
\nexpanded the  scope and\t ambit of  the\tright  to  life\t and
\npersonal liberty enshrined in Art. 21 and sowed the seed for
\nfuture\tdevelopment   of  the\tlaw  enlarging\t this\tmost
\nfundamental of\tFundamental Rights.  This decision in Maneka
\nGandhi’s case became the starting point-the-spring-board-for
\na most\tspectacular evolution  the law\tculminating  in\t the
\ndecisions in M. O. Hoscot v.\n<\/p>\n
524<\/span><\/p>\n
State of  Maharashtra,, Hussainara Khatoon’s case, the first
\nSunil Batra’s  case and\t the second  Sunil Batra’s case. The
\nposition now  is that  Art.  21\t as  interpreted  in  Maneka
\nGandhi’s case (supra) requires that no one shall be deprived
\nof  his\t  life\tor  personal  liberty  except  by  procedure
\nestablished by\tlaw and\t this procedure\t must be reasonable,
\nfair and  just and  not arbitrary, whimsical or fanciful and
\nit is  for the\tCourt to  decide  in  the  exercise  of\t its
\nconstitutional\tpower\tof  judicial   review  whether\t the
\ndeprivation of\tlife or\t personal liberty in a given case is
\nby procedure,  which is\t reasonable, fair  and just or it is
\notherwise. The law of preventive detention has therefore now
\nto pass\t the test  not only  of Art. 22, but also of Art. 21
\nand if\tthe constitutional  validity  of  any  such  law  is
\nchallenged, the\t Court would  have  to\tdecide\twhether\t the
\nprocedure laid\tdown by\t such law  for depriving a person of
\nhis personal  liberty is  reasonable,  fair  and  just.\t But
\ndespite these  safeguards laid\tdown by the Constitution and
\ncreatively evolved  by the  Courts, the\t power of preventive
\ndetention is  a frightful  and awesome\tpower  with  drastic
\nconsequences affecting\tpersonal liberty,  which is the most
\ncherished and  prized  possession  of  man  in\ta  civilised
\nsociety. It  is a  power to  be exercised  with the greatest
\ncare and  caution and the courts have to be ever vigilant to
\nsee that this power is not abused or misused. It must always
\nbe remembered  that preventive\tdetention  is  qualitatively
\ndifferent from\tpunitive detention  and their  purposes\t are
\ndifferent.  In\t case  of  punitive  detention,\t the  person
\nconcerned is detained by way of punishment after he is found
\nguilty of  wrong doing as a result of trial where he has the
\nfullest opportunity  to defend\thimself, while\tin  case  of
\npreventive detention,  he is  detained merely  on  suspicion
\nwith a\tview to preventing him from doing harm in future and
\nthe opportunity that he has for contesting the action of the
\nExecutive is very limited. Having regard to this distinctive
\ncharacter  of\tpreventive  detention,\twhich  aims  not  at
\npunishing an  individual for  a wrong  done by\thim, but  at
\ncurtailing his\tliberty\t with  a  view\tto  pre-empting\t his
\ninjurious activities  in future,  it has  been laid  down by
\nthis Court  in Sampat  Prakash v. State of Jammu and Kashmir<\/a>
\n“that the  restrictions\t placed\t on  a\tperson\tpreventively
\ndetained  must,\t  consistently\twith  the  effectiveness  of
\ndetention, be minimal.”\n<\/p>\n
     The question  which then  arises is  whether  a  person
\npreventively detained  in a  prison has\t any rights which he
\ncan enforce in a Court
\n525<\/span>
\nof law.\t Once his freedom is curtailed by incarceration in a
\njail, does  he have any fundamental rights at all or does he
\nleave them  behind, when  he enters  the prison\t gate ?\t The
\nanswer to  this question  is no\t longer res  integra. It has
\nbeen held  by this  Court in  the two Sunil Batra cases that
\n“fundamental rights  do not flee the person as he enters the
\nprison although\t they may  suffer shrinkage  necessitated by
\nincarceration.”\t The   prisoner\t or   detenu  has   all\t the
\nfundamental rights  and other  legal rights  available to  a
\nfree person,  save those which are incapable of enjoyment by
\nreason of  incarceration. Even\tbefore the  two Sunil  Batra
\ncases, this  position was  impliedly accepted  in  State  of
\nMaharashtra v.\tPrabhakar  Sanzgiri  and<\/a>  it  was  spelt-out
\nclearly and  in no  uncertain terms by Chandrachud, J. as he
\nthen was, in D. B. Patnaik v. State of Andhra Pradesh<\/a> :\n<\/p>\n
\t  “Convicts  are   not,\t by   mere  reason   of\t the
\n     conviction, denuded of all the fundamental rights which
\n     they  otherwise   possess.\t A   compulsion\t under\t the
\n     authority of  law, following upon a conviction, to live
\n     in a  prison-house entails\t to by\tits  own  force\t the
\n     deprivation of  fundamental freedoms  like the right to
\n     move freely  throughout the  territory of\tIndia or the
\n     right to  “practise” a  profession. A man of profession
\n     would  thus   stand  stripped  of\this  right  to\thold
\n     consultations while  serving out  his sentence. But the
\n     Constitution guarantees  other freedoms  like the right
\n     to acquire,  hold\tand  dispose  of  property  for\t the
\n     exercise of  which incarceration  can be no impediment.
\n     Likewise, even  a convict\tis entitled  to the precious
\n     right guaranteed by Art. 21 of the Constitution that he
\n     shall not\tbe deprived  of his life or personal liberty
\n     except according to procedure established by law.”<\/p><\/blockquote>\n
     This statement  of the  law was  affirmed by a Bench of
\nfive Judges  of this  Court in\tthe first  Sunil Batra\tcase
\n(supra) and  by Krishna\t Iyer, J.  speaking on behalf of the
\nCourt in  the second Sunil Batra case (supra). Krishna Iyer,
\nJ. in the latter case proceeded to add in his characteristic
\nstyle; “The  jurisdictional reach  and range of this Court’s
\nwrit to\t hold prison  caprice and  cruelty in constitutional
\nleash is incontestable” and concluded by observing; “Thus it
\nis now\tclear law  that a prisoner wears the armour of basic
\nfreedom even  behind bars  and that  on\t breach\t thereof  by
\nlawless officials  the law  will  respond  to  his  distress
\nsignals through\t ‘writ’ aid. The Indian human has a constant
\ncompanion-the Court armed with the Constitution.”\n<\/p>\n
526<\/span><\/p>\n
It is  interesting to  note that  the Supreme  Court of\t the
\nUnited States  has also\t taken the  same view  in regard  to
\nrights of prisoners. Mr. Justice Douglas struck a humanistic
\nnote when he said in Eve Pall’s case :\n<\/p>\n
\t  “Prisoners  are  still  persons  entitled  to\t all
\n     constitutional rights  unless their  liberty  has\tbeen
\n     constitutionally curtailed\t by procedures\tthat satisfy
\n     all the requirements of due process.”\n<\/p><\/blockquote>\n
So also\t in Charles Wolff’s case, Mr. Justice White made the
\nsame point in emphatic terms.\n<\/p>\n
\t  “But, though\this  rights  may  be  diminished  by
\n     environment, a  prisoner is  not  wholly  stripped\t off
\n     constitutional protections,  when he  is imprisoned for
\n     crime. There  is no  iron\tcurtain\t drawn\tbetween\t the
\n     Constitution and the prisons of this country.”\n<\/p><\/blockquote>\n
Mr. Justice Douglas reiterated his thesis when he asserted:\n<\/p>\n
\t  “Every  prisoner’s   liberty\ti.e.   of   courses,
\n     circumscribed by  the very fact of his confinement, but
\n     his interest in the limited liberty left to him is then
\n     only the  more substantial.  Conviction of a crime does
\n     not render one a non-person whose rights are subject to
\n     the whim  of the  prison administration, and therefore,
\n     the imposition  of any  serious punishment\t within\t the
\n     system requires procedural safeguards.”\n<\/p><\/blockquote>\n
Mr. Justice  Marshall also  expressed  himself\tclearly\t and
\nexplicitly in the same terms:\n<\/p>\n
\t  “I have  previously stated my view that a prisoner
\n     does not  shed his\t basic constitutional  rights at the
\n     prison gate,  and I  fully support\t the court’s holding
\n     that the interest of inmates in freedom from imposition
\n     of serious\t discipline is\ta ‘liberty’  entitled to due
\n     process protection.”\n<\/p><\/blockquote>\n
What is\t stated by  these learned  Judges in  regard to\t the
\nrights of  a prisoner  under the  Constitution of the United
\nStates applies equally in regard to the rights of a prisoner
\nor  detenu   under  our\t  constitutional  system.  It  must,
\ntherefore, now\tbe taken  to be well-settled that a prisoner
\nor detenu  is not stripped of his fundamental or other legal
\nrights,\t save\tthose  which   are  inconsistent   with\t his
\nincarceration, and  if any of these rights are violated, the
\nCourt which  is to use the words of Krishna Iyer, J., “not a
\ndistant abstraction omnipotent in the
\n527<\/span>
\nbooks but  an activist\tinstitution which is the cynosure of
\npublic hope,” will immediately spring into action and run to
\nhis rescue.\n<\/p>\n
     We must  therefore proceed\t to consider  whether any of
\nthe Fundamental\t Rights of  the detenu\tare violated by sub-
\nclauses (i) and (ii) of clause 3(b) so as to result in their
\ninvalidation wholly  or in  part. We  will first take up for
\nconsideration the  Fundamental Right  of  the  detenu  under
\nArticle 21  because that  is a\tFundamental Right which has,
\nafter the decision in Maneka Gandhi’s case (supra), a highly
\nactivist magnitude and it embodies a constitutional value of
\nsupreme importance in a democratic society. It provides that
\nno one\tshall be  deprived of  his life\t or personal liberty
\nexcept according  to procedure\testablished by\tlaw and such
\nprocedure shall\t be reasonable\tfair, and  just. Now what is
\nthe true  scope and  ambit of  the right  to life guaranteed
\nunder this  Article ?  While arriving  at the proper meaning
\nand content  of the  right to life, we must remember that it
\nis a  constitutional provision\twhich we  are expounding and
\nmoreover it  is a provision enacting a Fundamental right and
\nthe attempt  of the  court should  always be  to expand\t the
\nreach and  ambit of  the Fundamental  right rather  than  to
\nattenuate its meaning and content. The luminous guideline in
\nthe interpretation of a constitutional provision is provided
\nby the\tSupreme Court  of United States in Weems v. U. S. 54
\nLawyers Edition 801.\n<\/p>\n
\t  “Legislation, both statutory and constitutional is
\n     enacted, it  is true, from an experience of evils, but-
\n     its  general   language  should   not,  therefore,\t  be
\n     necessarily  confined   to\t the  form  that  evil\thad,
\n     therefore\ttaken.\t Time  works  changes,\tbrings\tinto
\n     existence new  conditions and  purposes.  Therefore,  a
\n     principle, to  be\tvital,\tmust  be  capable  of  wider
\n     application than  mischief which gave it birth. This is
\n     peculiarly\t true\tof  constitutions.   They  are\t not
\n     ephemeral\t enactments   designed\t to   meet   passing
\n     occasions. They  are, to use the words of Chief Justice
\n     Marshall, “designed to approach immorality as nearly as
\n     human institutions can approach it” The future is their
\n     care,  and\t provisions  for  events  of  good  and\t bad
\n     tendencies of  which no  prophecy can  be made.  In the
\n     application   of\ta   constitution,   therefore,\t our
\n     contemplation cannot  be only  of what has been, but of
\n     what may  be. Under any other rule a constitution would
\n     indeed be\tas  easy  of  application  as  it  would  be
\n     deficient in efficacy and power. Its general principles
\n     would have\t little value, and be converted by precedent
\n     into important  and lifeless  formulas. Rights declared
\n     in the  words might  be lost  in reality.\tAnd this has
\n     been recognised. The meaning and vitality of the
\n528<\/span>
\n     Constitution  have\t  developed   against\tnarrow\t and
\n     restrictive construction.”\n<\/p><\/blockquote>\n
This principle\tof  interpretation  which  requires  that  a
\nConstitutional provision  must be construed, not in a narrow
\nand constricted sense but in a wide and liberal manner so as
\nto anticipate  and take\t account of  changing conditions and
\npurposes so  that the  Constitutional provision does not get
\natrophied or  fossilized but remains flexible enough to meet
\nthe newly  emerging problems  and challenges,  applies\twith
\ngreater force  in relation to a fundamental right enacted by
\nthe Constitution. The fundamental right to life which is the
\nmost precious  human right  and which  forms the  ark of all
\nother rights  must therefore  be interpreted  in a broad and
\nexpansive spirit  so as\t to invest  it with significance and
\nvitality which\tmay endure for years to come and enhance the
\ndignity of the individual and the worth of the human person.\n<\/p>\n
     Now obviously,  the right\tto life enshrined in Article
\n21 can\tnot be restricted to mere animal existence. It means
\nsomething much\tmore than  just physical survival. In Kharak
\nSingh v.  State of  Uttar Pradesh  Subba Rao  J. quoted with
\napproval the following passage from the judgment of Field J.
\nin Munn v. Illinois to emphasize the quality of life covered
\nby Article 21:\n<\/p>\n
\t  “By the term “life” as here used something more is
\n     meant  than   mere\t animal\t existence.  The  inhibition
\n     against its  deprivation extends to all those limbs and
\n     faculties by  which  life\tis  enjoyed.  The  provision
\n     equally  prohibits\t  the  mutilation  of  the  body  or
\n     amputation of  an arm  or leg  or the putting out of an
\n     eye or  the destruction  of any other organ of the body
\n     through which  the soul  communicates  with  the  outer
\n     world.”\n<\/p><\/blockquote>\n
and this  passage was  again accepted  as  laying  down\t the
\ncorrect law  by the  Constitution Bench of this Court in the
\nfirst Sunil  Batra  case  (supra).  Every  limb\t or  faculty
\nthrough which  life is\tenjoyed is thus protected by Article
\n21 and\ta fortiorari,  this would  include the\tfaculties of
\nthinking and  feeling. Now deprivation which is inhibited by
\nArticle 21  may be  total or  partial, neither\tany limb  or
\nfaculty can  be totally\t destroyed nor\tcan it\tbe partially
\ndamaged. Moreover  it is  every kind  of deprivation that is
\nhit by\tArticle 21, whether such deprivation be permanent or
\ntemporary and, furthermore, depriva-\n<\/p>\n
529<\/span><\/p>\n
tion is not an act which is complete once and for all: it is
\na continuing  act and  so long\tas it  lasts, it  must be in
\naccordance  with   procedure  established   by\tlaw.  It  is
\ntherefore clear\t that any  act which  damages or  injures or
\ninterferes with the use of, any limb or faculty of a person,
\neither permanently  or even temporarily, would be within the
\ninhibition of Article 21.\n<\/p>\n
     But the  question which  arises is whether the right to
\nlife is\t limited only  to protection  of limb  or faculty or
\ndoes it go further and embrace something more. We think that
\nthe right  to life  includes the  right to  live with  human
\ndignity and  all that  goes along  with it, namely, the bare
\nnecessaries of life such as adequate nutrition, clothing and
\nshelter and  facilities for  reading, writing and expressing
\none-self in  diverse forms,  freely moving  about and mixing
\nand commingling\t with fellow  human beings.  Of course,\t the
\nmagnitude and  content of the components of this right would
\ndepend upon  the extent\t of the\t economic development of the
\ncountry, but it must, in any view of the matter, include the
\nright to the basic necessities of life and also the right to
\ncarry on  such functions  and activities  as constitute\t the
\nbare minimum  expression of  the human-self. Every act which
\noffends against\t or impairs  human dignity  would constitute
\ndeprivation protanto of this right to live and it would have
\nto be in accordance with reasonable, fair and just procedure
\nestablished  by\t  law  which   stands  the   test  of  other
\nfundamental rights.  Now obviously,  any form  of torture or
\ncruel, inhuman\tor degrading treatment would be offensive to
\nhuman dignity  and constitute  an inroad  into this right to
\nlive and it would, on this view, be prohibited by Article 21
\nunless it is in accordance with procedure prescribed by law,
\nbut no\tlaw which authorises and no procedure which leads to
\nsuch torture  or cruel,\t inhuman or  degrading treatment can
\never stand the test of reasonableness and non-arbitrariness:
\nit would  plainly be  unconstitutional\tand  void  as  being
\nviolative of  Articles 14 and 21. It would thus be seen that
\nthere is  implicit in  Article 21  the right  to  protection
\nagainst torture\t or cruel,  inhuman or\tdegrading  treatment
\nwhich  is   enunciated\tin   Article  5\t  of  the  Universal
\nDeclaration of\tHuman Rights  and guaranteed by Article 7 of
\nthe International  Covenant on\tCivil and  Political Rights.
\nThis right  to live  which is  comprehended within the broad
\nconnotation of\tthe right to life can concededly be abridged
\naccording to procedure established by law and therefore when
\na person is lawfully imprisoned, this right to live is bound
\nto suffer attenuation to the extent to which it is incapable
\nof enjoyment  by reason\t of incarceration.  The prisoner  or
\ndetenu obviously  cannot move  about freely by going outside
\nthe prison  walls nor can he socialise at his free will with
\npersons outside the jail. But, as part of the
\n530<\/span>
\nright  to  live\t with  human  dignity  and  therefore  as  a
\nnecessary component  of the  right  to\tlife,  he  would  be
\nentitled to  have interviews  with the members of his family
\nand friends  and no prison regulation or procedure laid down
\nby prison regulation regulating the right to have interviews
\nwith the  members of the family and friends can be upheld as
\nconstitutionally valid\tunder Articles\t14 and 21, unless it
\nis reasonable, fair and just.\n<\/p>\n
     The same  consequence would follow even if this problem
\nis considered  from the\t point\tof  view  of  the  right  to
\npersonal liberty  enshrined in\tArticle 21, for the right to
\nhave interviews\t with members  of the  family and friends is
\nclearly part  of  personal  liberty  guaranteed\t under\tthat
\nArticle. The  expression  ‘personal  liberty’  occurring  in
\nArticle 21 has been given a broad and liberal interpretation
\nin Maneka Gandhi’s case (supra) and it has been held in that
\ncase that  the expression  ‘personal liberty  used  in\tthat
\nArticle is  of the  widest amplitude and it covers a variety
\nof rights  which go  to constitute the personal liberty of a
\nman and\t it also  includes rights which “have been raised to
\nthe  status   of  distinct   Fundamental  Rights  and  given
\nadditional protection under Article 19”. There can therefore
\nbe no  doubt that  ‘personal liberty would include the right
\nto socialise with members of the family and friends subject,
\nof  course,  to\t any  valid  prison  regulations  and  under
\nArticles  14   and  21,\t such  prison  regulations  must  be
\nreasonable and\t non-arbitrary.\t If any prison regulation or
\nprocedure laid\tdown by\t it regulating\tthe  right  to\thave
\ninterviews  with  members  of  the  family  and\t friends  is
\narbitrary or  unreasonable, it\twould be liable to be struck
\ndown as invalid as being violative of Articles 14 and 21.\n<\/p>\n
     Now obviously  when an  under-trial prisoner is granted
\nthe facility  of interviews with relatives and friends twice
\nin a  week under  Rule 559A  and  a  convicted\tprisoner  is
\npermitted to  have interviews with his relatives and friends
\nonce in a week under Rule 550, it is difficult to understand
\nhow sub-clause\t(ii) of\t Clause 3(b)  of the  Conditions  of
\nDetention Order,  which restricts  the interview only to one
\nin a  month in case of a detenu, can possibly be regarded as
\nreasonable and\tnon-arbitrary, particularly  when  a  detenu
\nstands on  a higher pedestal than an under-trial prisoner or
\na convict  and, as  held by  this Court in Sampath Prakash’s
\ncase  (supra)\trestrictions  placed   on  a   detenu\tmust
\n“consistent  with   the\t effectiveness\t of  detention,\t  be
\nminimal.” We  would therefore unhesitatingly hold sub-clause\n<\/p>\n
(ii) of clause 3(b) to be violative of Articles 14 and 21 in
\nso far\tas it  permits only  one interview  in a  month to a
\ndetenu. We  are of  the view that a detenu must be permitted
\nto have\t atleast two interviews in a week with relatives and
\nfriends and  it should\tbe possible for a relative or friend
\nto have interview with
\n531<\/span>
\nthe detenu  at any  reasonable hour  on obtaining permission
\nfrom the  Superintendent of  the Jail  and it  should not be
\nnecessary to seek the permission of the District Magistrate,
\nDelhi,\tas  the\t latter\t procedure  would  be  cumbrous\t and
\nunnecessary from  the point  of view  of security  and hence
\nunreasonable. We  would go  so\tfar  as\t to  say  that\teven
\nindependently of  Rules 550  and 559A,\twe would  regard the
\npresent norm  of two  interviews in  a week for prisoners as
\nfurnishing a  criterion of what we would consider reasonable
\nand non-arbitrary.\n<\/p>\n
     The same  reasoning must also result in invalidation of
\nsub-clause (i) of clause 3(b) of the Conditions of Detention
\nOrder which prescribes that a detenu can have interview with
\na legal adviser only after obtaining prior permission of the
\nDistrict Magistrate,  Delhi and\t the interview\thas to\ttake
\nplace in  the presence\tof  an\tofficer\t of  Customs\/Central
\nExcise\/Enforcement to be nominated by the local Collector of
\nCustoms\/Central Excise or Deputy Director of Enforcement who
\nhas sponsored  the case for detention. The right of a detenu
\nto consult a legal adviser of his choice for any purpose not
\nnecessarily limited  to defence in a criminal proceeding but
\nalso for  securing  release  from  preventive  detention  of
\nfiling\ta   writ  petition   or\t prosecuting  any  claim  or
\nproceeding, civil  or criminal, is obviously included in the
\nright to  live with  human  dignity  and  is  also  part  of
\npersonal liberty  and the  detenu cannot be deprived of this
\nright nor  can this  right of  the detenu be interfered with
\nexcept\tin   accordance\t with\treasonable,  fair  and\tjust
\nprocedure established  by a  valid law.\t A prison regulation
\nmay, therefore,\t regulate the  right of\t a  detenu  to\thave
\ninterview  with\t a  legal  adviser  in\ta  manner  which  is
\nreasonable,  fair  and\tjust  but  it  cannot  prescribe  an
\narbitrary or  unreasonable procedure  for regulating such an
\ninterview and  if it  does so,\tit  would  be  violative  of
\nArticles 14  and 21.  Now in  the  present  case  the  legal
\nadviser can  have interview  with a  detenu  only  by  prior
\nappointment  after  obtaining  permission  of  the  District
\nMagistrate, Delhi. This would obviously cause great hardship
\nand inconvenience  because the\tlegal adviser  would have to
\napply to  the District Magistrate, Delhi well in advance and
\nthen also  the time  fixed by the District Magistrate, Delhi
\nmay  not   be  suitable\t to  the  legal\t adviser  who  would
\nordinarily be a busy practitioner and, in that event, from a
\npractical point of view the right to consult a legal adviser
\nwould be  rendered illusory.  Moreover, the  interview\tmust
\ntake place  in the presence of an officer of Customs\/Central
\nExcise\/Enforcement to be nominated by the local Collector of
\nCustoms\/Central Excise or Deputy Director of Enforcement who
\nhas sponsored the detention and this too would seem to be an
\nunreasonable procedural\t requirement  because  in  order  to
\nsecure the  presence of\t such officer  at the interview, the
\nDistrict Magistrate, Delhi
\n532<\/span>
\nwould have to fix the time for the interview in consultation
\nwith the  Collector of\tCustoms\/Central Excise or the Deputy
\nDirector of  Enforcement and  it  may  become  difficult  to
\nsynchronise the\t time which suits the legal adviser with the
\ntime convenient\t to the concerned officer and furthermore if
\nthe nominated  officer does  not, for  any reason, attend at
\nthe appointed time, as seems to have happened on quite a few
\noccasions in  the case\tof  the\t petitioner,  the  interview
\ncannot be held at all and the legal adviser would have to go
\nback without meeting the detenu and the entire procedure for
\napplying for  an appointment  to  the  District\t Magistrate,
\nDelhi would have to be gone through once again. We may point
\nout that  no satisfactory  explanation\thas  been  given  on
\nbehalf of  the respondents  disclosing the rationale of this
\nrequirement.\n<\/p>\n
     We are  therefore of view that sub-clause (i) of clause
\n3(b) regulating the right of a detenu to have interview with
\na legal\t adviser of  his choice is violative of Arts. 14 and
\n21 and\tmust be\t held to  be unconstitutional  and void.  We
\nthink that  it would be quite reasonable if a detenu were to
\nbe entitled  to have interview with his legal adviser at any
\nreasonable hour during the day after taking appointment from
\nthe Superintendent  of the Jail, which appointment should be
\ngiven by  the Superintendent without any avoidable delay. We
\nmay add\t that the  interview need not necessarily take place
\nin the\tpresence of  a nominated  officer of Customs\/Central
\nExcise\/Enforcement but\tif the\tpresence of such officer can
\nbe conveniently secured at the time of the interview without
\ninvolving any  postponement  of\t the  interview,  then\tsuch
\nofficer and  if his  presence cannot be so secured, then any
\nother Jail  official may,  if thought  necessary, watch\t the
\ninterview but  not as  to be  within hearing distance of the
\ndetenu and the legal adviser.\n<\/p>\n
     We accordingly allow the writ petition and grant relief
\nto the extent indicated above.\n<\/p>\n
V.D.K.\t\t\t\t\t   Petition allowed.\n533<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Francis Coralie Mullin vs The Administrator, Union … on 13 January, 1981 Equivalent citations: 1981 AIR 746, 1981 SCR (2) 516 Author: P Bhagwati Bench: Bhagwati, P.N. 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-54075","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nFrancis Coralie Mullin vs The Administrator, Union ... on 13 January, 1981 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/francis-coralie-mullin-vs-the-administrator-union-on-13-january-1981\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Francis Coralie Mullin vs The Administrator, Union ... on 13 January, 1981 - 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