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Article 21 in The Constitution Of India 1949
The Unlawful Activities (Prevention) Act, 1967
Article 22 in The Constitution Of India 1949
Maneka Gandhi vs Union Of India on 25 January, 1978
Sampat Prakash vs State Of Jammu & Kashmir on 6 February, 1969
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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, SYED MURTAZA

CITATION:
 1981 AIR  746		  1981 SCR  (2) 516
 1981 SCC  (1) 608	  1981 SCALE  (1)79
 CITATOR INFO :
 RF	    1981 SC2041	 (9)
 D	    1982 SC 710	 (92,93)
 D	    1982 SC1029	 (14)
 MV	    1982 SC1325	 (16,36,75)
 R	    1982 SC1473	 (11)
 E&D	    1985 SC1618	 (9)
 R	    1986 SC 180	 (39,42)
 RF	    1986 SC 847	 (12)
 RF	    1987 SC 990	 (16)
 R	    1991 SC 101	 (239)
 RF	    1991 SC1902	 (24)
 RF	    1992 SC1858	 (10)


ACT:
     Right of  the  detenu  under  Conservation	 of  Foreign
Exchange &  Prevention of  Smuggling Activities Act, to have
interview with	a lawyer  and the  members  of	his  family-
Section 3(b)(i)	 & (ii)	 read with  rule 559A and 550 of the
Punjab Manual  of  the	Superintendence	 and  Management  of
Jails-Whether  violates	  Articles  14	 and   21   of	 the
Constitution   and    hence   invalid-Distinction    between
preventive detention with punitive detention-Constitution of
India 1950 Article 21, scope of.



HEADNOTE:
     Allowing the writ petition, the Court
^
     HELD :  (1) While	considering the question of validity
of conditions  of detention  courts must necessarily bear in
mind the  vital distinction between preventive detention and
punitive  detention.   Punitive	 detention  is	intended  to
inflict punishment on a person, who is found by the judicial
process to  have  committed  an	 offence,  while  preventive
detention is  not by  way of  punishment at  all, but  it is
intended to  pre-empt a	 person from  indulging	 in  conduct
injurious to the society. [523 A-B]
     (2)  The	power  of   preventive	detention  has	been
recognised as  a necessary  evil and  is tolerated in a free
society in  the larger interest of security of the State and
maintenance of public order. It is a drastic power to detain
a person  without trial	 and in	 many countries	 it  is	 not
allowed	 to   be  exercised   except  in  times	 of  war  or
aggression.  The  Indian  Constitution	does  recognise	 the
existence of  this power,  but it  is hedged-in	 by  various
safeguards set	out in	Articles 21  and 22.  Article 22  in
clauses	 (4)  to  (7)  deals  specifically  with  safeguards
against preventive  detention and  enjoins that	 any law  of
preventive  detention	or  action   by	 way  of  preventive
detention taken	 under such  law must  be in conformity with
the restrictions  laid down  by those  clauses	on  pain  of
invalidation, Article  21 also lays down restrictions on the
power of preventive detention. [523 B-D]
     Article 21	 as  interpreted  in  Maneka  Gandhi's	case
requires that  no one  shall be	 deprived  of  his  life  or
personal liberty except by procedure established  by law and
this procedure	must be	 reasonable, fair  and just  and not
arbitrary, whimsical  or fanciful and it is for the Court to
decide in  the	exercise  of  its  constitutional  power  or
judicial review	 whether the deprivation of life or personal
liberty	 in   a	 given	 case  is  by  procedure,  which  is
reasonable, fair  and just  or it  is otherwise.  The law of
preventive detention must, therefore, pass the test not only
of Article  22 but  also of  Article 21.  But, despite these
safeguards laid	 down by  the  Constitution  and  creatively
evolved by  the Courts. the power of preventive detention is
a frightful  and awesome  power	 with  drastic	consequences
affecting personal liberty, which is the most cherished
517
and prized possession of man in a civilised society. It is a
power to be exercised with the greatest care and caution and
the courts  have to  be ever vigilant to see that this power
is  not	 abused	 or  misused,  inasmuch	 as  the  preventive
detention is qualitatively different from punitive detention
and their  purposes  are  different.  In  case	of  punitive
detention, the	person has  fullest  opportunity  to  defend
himself,  while	  in  case   of	 preventive  detention,	 the
opportunity that  he has  for contesting  the action  of the
Executive is  very  limited.  Therefore,  the  "restrictions
placed on  a person preventively detained must, consistently
with the effectiveness of detention, be minimal". [524A-G]
     Maneka Gandhi v. Union of India, [1979] 1 SCC 248; M.O.
Hoscot v. State of Maharashtra, [1979] 1 SCR 192; Hussainara
Khatoon v.  State of Bihar, [1980] 1 SCC 81; Sunil Batra (I)
v. Delhi  Administration, [1979] 1 SCR 392; Sunil Batra (II)
v. Delhi Administration, [1980] 2 SCR 557, referred to.
     Sampat Prakash  v. State of Jammu and Kashmir, [1969] 3
SCR 574, followed.
     3. The  prisoner or  detenu  has  all  the	 fundamental
rights and  other legal	 rights available  to a free person,
save those  which are  incapable of  enjoyment by  reason of
incarceration. A  prisoner or  detenu is not stripped of his
fundamental or	other legal  rights, save  those  which	 are
inconsistent with  his incarceration,  and if  any of  these
rights are  violated, the Court will immediately spring into
action and run to his rescue. [525 B-C, 526 G-H, 527 A]
     Sunil Batra  (I) v.  Delhi Administration, [1979] 1 SCR
392; Sunil  Batra (II) v. Delhi Administration, [1980] 2 SCR
557, State of Maharashtra v. Prabhakar Sanzgire [1966] 1 SCR
702; D.	 B. Patnaik v. State of Andhra Pradesh, [1975] 2 SCR
24, followed.
     Eve Pall's	 Case, 417  US 817:  41 Lawyers	 Edition 2nd
495; Charles Wolffs Case, 41 Lawyers Edition 2nd 935, quoted
with approval.
     (4) While arriving at the proper meaning and content of
the right to life, the attempt of the court should always be
to expand  the reach  and ambit	 of  the  fundamental  right
rather	than   to  attenuate  its  meaning  and	 content.  A
constitutional provision  must be construed, not in a narrow
and constricted	 sense, but  in a wide and liberal manner so
as to anticipate and take account of changing conditions and
purposes so  that the  constitutional provision does not get
atrophied or  fossilized but remains flexible enough to meet
the newly  emerging problems  and challenges. This principle
applies with  greater force  in relation  to  a	 fundamental
right enacted  by the Constitution. The fundamental right to
life which  is the most precious human right and which forms
the ark of all other rights must therefore be interpreted in
a broad	 and expansive	spirit	so  as	to  invest  it	with
significance and vitality which may endure for years to come
and enhance  the dignity  of the individual and the worth of
the human person. [527 C-D, 528 A-C]
     Weems v.  U.S. 54	Lawyers	 Edition  801,	quoted	with
approval.
     (5) The right to life enshrined in Article 21 cannot be
restricted to mere animal existence. It means something much
more than just physical survival.
518
Every limb  or faculty through which life is enjoyed is thus
protected by Article 21 and a fortiorari, this would include
the faculties of thinking and feeling. Now deprivation which
is inhibited  by Article  may be  total or partially neither
any limb  or faculty  can be totally destroyed nor can it be
partially damaged.  Moreover it is every kind of deprivation
that is	 hit by	 Article 21,  whether  such  deprivation  be
permanent or  temporary and, furthermore, deprivation is not
an act	which  is  complete  once  and	for  all:  it  is  a
continuing act	and so	long as	 it lasts,  it	must  be  in
accordance with	 procedure established by law. Therefore any
act which  damages or  injures or interferes with the use of
any limb  or faculty  of a person either permanently or even
temporarily, would  be within  the inhibition of Article 21.
[528 D, G-H, 529 A]
     Kharak Singh  v. State  of Uttar  Pradesh, [1964] 1 SCR
232, followed.
     Munn v. Illinois [1877] 94 US 133, referred to.
     Sunil Batra  v. Delhi Administration, [1980] 2 SCR 557,
applied.
     (6) The  right to	life includes the right to live with
human dignity  and all	that goes along with it, namely, the
bare  necessaries   of	life  such  as	adequate  nutrition,
clothing and shelter and facilities for reading, writing and
expressing oneself in diverse forms, freely moving about and
mixing	and   commingling  with	 fellow	 human	beings.	 The
magnitude and  content of the components of this right would
depend upon  the extent	 of the	 economic development of the
country, but it must, in any view of the matter, include the
right to the basic necessities of life and also the right to
carry on  such functions  and activities  as constitute	 the
bare minimum  expression of  the human self. Every act which
offends against	 or impairs  human dignity  would constitute
deprivation pro	 tanto of  this right  to live	and it would
have to	 be in	accordance with	 reasonable, fair  and	just
procedure established  by law which stands the test of other
fundamental rights. Therefore, any form of torture or cruel,
inhuman or  degrading treatment	 would be offensive to human
dignity and constitute an inroad into this right to live and
it would,  on this  view, be prohibited by Article 21 unless
it is in accordance with procedure prescribed by law, but no
law which  authorises and  no procedure	 which leads to such
torture or  cruelty, inhuman or degrading treatment can ever
stand the  test of  reasonableness and non-arbitrariness: it
would  plainly	 be  unconstitutional	and  void  as  being
violative of Article 14 and 21. [529 B-F]
     (7) There	is implicit  in	 Article  21  the  right  to
protection against  torture or	cruel, inhuman	or degrading
treatment which	 is enunciated in Article 5 of the Universal
Declaration of	Human Rights  and guaranteed by Article 7 of
the international  Covenant on	Civil and  Political Rights.
This right  to live  which is  comprehended within the broad
connotation of	the right to life can concededly be abridged
according to  procedure established  by law  and  therefore,
when a	person is lawfully imprisoned, this right to live is
bound to  suffer attenuation  to the  extent to	 which it is
incapable of  enjoyment	 by  reason  of	 incarceration.	 The
prisoner or  detenu obviously  cannot move  about freely  by
going outside  the prison  walls nor can be socialise at his
free will with persons outside the jail. But, as part of the
right to  live	with  human  dignity  and  therefore,  as  a
necessary component  of the  right  to	life,  he  would  be
entitled to  have interviews  with the members of his family
and friends  and no prison regulation or procedure laid down
by prison regulation regulating the right to have interviews
with the members of the family and
519
friends	 can  be  upheld  as  constitutionally	valid  under
Article 14 and 21, unless it is reasonable, fair and just.
     Considered from  the point of view also of the right to
personal liberty  enshrined in Article 21, the right to have
interviews with members of the family and friends is clearly
part of	 personal liberty guaranteed under that Article. The
expression "personal  liberty" occurring in Article 21 is of
the widest amplitude and it covers a variety of rights which
go to  constitute the  personal liberty of a man and it also
includes rights	 which "have  been raised  to the  status of
distinct Fundamental  Rights and given additional protection
under Article 19". Therefore, personal liberty would include
the right  to socialise	 with  members	of  the	 family	 and
friends subject,  of course, to any valid prison regulations
and under  Articles 14	and 21, such prison regulations must
be reasonable and non-arbitrary. If any prison regulation or
procedure laid	down by	 it regulating	the  right  to	have
interviews  with  members  of  the  family  and	 friends  is
arbitrary or  unreasonable, it	would be liable to be struck
down as	 invalid as  being violative  of Articles 14 and 21.
[530 B-E]
     Maneka Gandhi  v. Union  of India,	 [1979] 1  SCC	248,
applied.
     (8) Sub-clause (ii) of clause 3(b) of the Conditions of
Detention Order is violative of Articles 14 and 21 in so far
as it  permits only  one interview  in a  month to a detenu.
When an	 under-trial prisoner  is granted  the	facility  of
interviews with	 relatives and friends twice in a week under
Rule 559A  and a  convicted prisoner  is permitted  to	have
interviews with	 his relatives	and friends,  once in a week
under Rule  550, sub-clause  (ii)  of  clause  3(b)  of	 the
Conditions of Detention Order, which restricts the interview
only to	 one in a month in case of a detenu, is unreasonable
and arbitrary,	particularly  when  a  detenu  stands  on  a
highest pedestal  than an under-trial prisoner or a convict.
A detenu  must be  permitted to have at least two interviews
in a  week with	 relatives and	friends	 and  it  should  be
possible for  relative or  friend to have interview with the
detenu at  any reasonable  hour on obtaining permission from
the  Superintendent  of	 the  Jail  and	 it  should  not  be
necessary to seek the permission of the District Magistrate,
Delhi,	as  the	 latter	 procedure  would  be  cumbrous	 and
unnecessary from  the point  of view  of security  and hence
unreasonable. Even  independently of  Rules 550 and 559A, of
the Punjab  Manual for the Superintendence and Management of
Jails, the  present norm  of two  interviews in	 a week	 for
prisoners   furnishes	a   reasonable	 and   non-arbitrary
criterion. [530 F-H, 531 A-B]
     Sampath Prakash v. State of Jammu and Kashmir, [1969] 3
SCR 574, applied.
     (9) Sub-clause  (i) of clause 3(b) of the Conditions of
Detention Order	 regulating the	 right of  a detenu  to have
interview with a legal adviser of his choice is violative of
Article 14  and 21  and therefore unconstitutional and void,
It would be quite reasonable if a detenu were to be entitled
to have	 interview with	 his legal adviser at any reasonable
hour during  the  day  after  taking  appointment  from	 the
Superintendent of  the Jail,  which  appointment  should  be
given by the Superintendent without any avoidable delay. The
interview need not necessarily take place in the presence of
a nominated  officer of	 Customs/ Central Excise/Enforcement
but if	the presence  of such  officer can  be	conveniently
secured at  the time  of the interview without involving any
postponement of	 the interview, than such officer and if his
presence cannot be so secured,
520
then any  other Jail  official may,  if	 thought  necessary,
watch the  interview but  in a	month to  a detenu.  When an
under-trial prisoner is granted the facility [532C-F]
     (10) The  right of	 a detenu to consult a legal adviser
of his	choice for  any purpose	 not necessarily  limited to
defence in  a criminal	proceeding  but	 also  for  securing
release from preventive detention or filling a writ petition
or prosecuting any claim or proceeding, civil or criminal is
obviously included  in the  right to live with human dignity
and is	also part  of personal liberty and the detenu cannot
be deprived  of this  right nor can this right of the detenu
be interfered  with except  in accordance  with	 reasonable,
fair and just procedure established by a valid law. [531C-E]



JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 3042 of 1980. (Under Article 32 of the Constitution.) N. M. Ghatate (Dr.) and S. V. Deshpande for the Petitioner.

Hardayal Hardy and M. N. Shroff for the Respondents Nos. 1-2.

The Judgment of the Court was delivered by BHAGWATI, J. This petition under Article 32 of the Constitution raises a question in regard of the right of a detenu under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA Act) to have interview with a lawyer and the members of his family. The facts giving rise to the petition are few and undisputed and may be briefly stated as follows:

The petitioner, who is a British national, was arrested and detained in the Central Jail, Tihar under an Order dated 23rd November 1979 issued under section 3 of the COFEPOSA Act. She preferred a petition in this Court for a writ of habeas corpus challenging her detention, but by a judgment delivered by this Court on 27th February 1980, her petition was rejected with the result that she continued to remain under detention in the Tihar Central Jail. Whilst under detention, the petitioner experienced considerable difficulty in having interview with her lawyer and the members of her family. Her daughter aged about five years and her sister, who was looking after the daughter, were permitted to have interview with her only once in a month and she was not allowed to meet her daughter more often, though a child of very tender age. It seems that some criminal proceeding was pending against the petitioner for attempting to smuggle hashish out of the country and for the purpose of her defence in such criminal proceeding, it was necessary for her to consult her lawyer, but even her lawyer found it difficult to obtain an interview with her because in order to arrange an interview, he was 521 required to obtain prior appointment from the District Magistrate, Delhi and the interview could take place only in the presence of a Customs Officer nominated by the Collector of Customs. This procedure for obtaining interview caused considerable hardship and inconvenience and there were occasions when, even after obtaining prior appointment from the District Magistrate, Delhi, her lawyer could not have an interview with her since no Customs Officer nominated by the Collector of Customs remained present at the appointed time. The petitioner was thus effectively denied the facility of interview with her lawyer and even her young daughter 5 years old could not meet her except once in a month. This restriction on interviews was imposed by the Prison Authorities by virtue of clause 3(b) sub-clauses (i) and

(ii) of the Conditions of Detention laid down by the Delhi Administration under an Order dated 23rd August 1975 issued in exercise of the powers conferred under section 5 of the COFEPOSA Act. These two sub-clauses of clause 3(b) provided inter alia as under:

"3. The conditions of detention in respect of classification and interviews shall be as under:-
(a) ..........
(b) Interviews: Subject to the direction issued by the Administrator from time to time, permission for the grant of interviews with a detenu shall be granted by the District Magistrate, Delhi as under:-
(i) Interview with legal adviser:
Interview with legal adviser in connection with defence of a detenu in a criminal case or in regard to writ petitions and the like, may be allowed by prior appointment, in the presence of an officer of Customs/Central Excise/ Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who sponsors the case for detention.
(ii) Interview with family members:
A monthly interview may be permitted for members of the family consisting of wife, children or parents of the detenu .........."

The petitioner, therefore, preferred a petition in this Court under Article 32 challenging the constitutional validity of sub-clauses (i) 522 and (ii) of clause 3(b) of the Conditions of Detention Order and praying that the Administrator of the Union Territory of Delhi and the Superintendent of Tihar Central Jail be directed to permit her to have interview with her lawyer and the members of her family without complying with the restrictions laid down in those sub-clauses.

The principal ground on which the constitutional validity of sub-clauses (i) and (ii) of clause 3(b) of the Conditions of Detention Order was challenged was that these provisions were violative of Articles 14 and 21 of the Constitution inasmuch as they were arbitrary and unreasonable. It was contended on behalf of the petitioner that allowing interview with the members of the family only once in a month was discriminatory and unreasonable, particularly when under-trial prisoners were granted the facility of interview with relatives and friends twice in a week under Rule 559A and convicted prisoners were permitted to have interview with their relatives and friends once in a week under Rule 550 of the Rules set out in the Manual for the Superintendence and Management of Jails in the Punjab. The petitioner also urged that a detenu was entitled under Article 22 of the Constitution to consult and be defended by a legal practitioner of his choice and she was, therefore entitled to the facility of interview with a lawyer whom he wanted to consult or appear for him in a legal proceeding and the requirement of prior appointment for interview and of the presence of a Customs or Excise Officer at the interview was arbitrary and unreasonable and therefore violative of Articles 14 and 21. The respondents resisted the contentions of the petitioner and submitted that sub- clauses (i) and (ii) of clause 3(b) were not violative of Articles 14 and 21, since the restrictions imposed by them were reasonable, fair and just, but stated that they would have no objection if instead of a monthly interview, the petitioner was granted the facility of interview with her daughter and sister twice in a week as in the case of under- trial prisoners and so far as interview with the lawyer is concerned, they would not insist on the presence of a customs or excise officer at the interview. Though these two concessions were made on behalf of the respondents at the hearing of the petition before us, the question still remains whether sub-clause (i) and (ii) of cl. 3(b) are valid and it is necessary that we should examine this question in the context of our constitutional values, since there are a large number of detenus under the COFEPOSA Act and the conditions of their detention in regard to interviews must be finally settled by this Court.

Now it is necessary to bear in mind the distinction between 'preventive detention' and punitive detention', when we are considering 523 the question of validity of conditions of detention. There is a vital distinction between these two kinds of detention. 'Punitive detention' is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while 'preventive detention' is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression. Our Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22. Art. 22 in clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from Art. 22, there is also Art. 21 which lays down restrictions on the power of preventive detention. Until the decision of this Court in Maneka Gandhi. v. Union of India, a very narrow and constricted meaning was given to the guarantee embodied in Art. 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of his life or personal liberty without the authority of law. It was construed only as a guarantee against executive action unsupported by law. So long as there was some law, which prescribed a procedure authorising deprivation of life or personal liberty, it was supposed to meet the requirement of Art. 21. But in Maneka Gandhi's case (supra), this Court for the first time opened-up a new dimension of Art. 21 and laid down that Art. 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Art. 21. This Court expanded the scope and ambit of the right to life and personal liberty enshrined in Art. 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights. This decision in Maneka Gandhi's case became the starting point-the-spring-board-for a most spectacular evolution the law culminating in the decisions in M. O. Hoscot v.

524

State of Maharashtra,, Hussainara Khatoon's case, the first Sunil Batra's case and the second Sunil Batra's case. The position now is that Art. 21 as interpreted in Maneka Gandhi's case (supra) requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention has therefore now to pass the test not only of Art. 22, but also of Art. 21 and if the constitutional validity of any such law is challenged, the Court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. But despite these safeguards laid down by the Constitution and creatively evolved by the Courts, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused. It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the Executive is very limited. Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to pre-empting his injurious activities in future, it has been laid down by this Court in Sampat Prakash v. State of Jammu and Kashmir "that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal."

The question which then arises is whether a person preventively detained in a prison has any rights which he can enforce in a Court 525 of law. Once his freedom is curtailed by incarceration in a jail, does he have any fundamental rights at all or does he leave them behind, when he enters the prison gate ? The answer to this question is no longer res integra. It has been held by this Court in the two Sunil Batra cases that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration." The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. Even before the two Sunil Batra cases, this position was impliedly accepted in State of Maharashtra v. Prabhakar Sanzgiri and it was spelt-out clearly and in no uncertain terms by Chandrachud, J. as he then was, in D. B. Patnaik v. State of Andhra Pradesh :

"Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Art. 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law."

This statement of the law was affirmed by a Bench of five Judges of this Court in the first Sunil Batra case (supra) and by Krishna Iyer, J. speaking on behalf of the Court in the second Sunil Batra case (supra). Krishna Iyer, J. in the latter case proceeded to add in his characteristic style; "The jurisdictional reach and range of this Court's writ to hold prison caprice and cruelty in constitutional leash is incontestable" and concluded by observing; "Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ' aid. The Indian human has a constant companion-the Court armed with the Constitution."

526

It is interesting to note that the Supreme Court of the United States has also taken the same view in regard to rights of prisoners. Mr. Justice Douglas struck a humanistic note when he said in Eve Pall's case :

"Prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process."

So also in Charles Wolff's case, Mr. Justice White made the same point in emphatic terms.

"But, though his rights may be diminished by environment, a prisoner is not wholly stripped off constitutional protections, when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country."

Mr. Justice Douglas reiterated his thesis when he asserted:

"Every prisoner's liberty i.e. of courses, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a non-person whose rights are subject to the whim of the prison administration, and therefore, the imposition of any serious punishment within the system requires procedural safeguards."

Mr. Justice Marshall also expressed himself clearly and explicitly in the same terms:

"I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court's holding that the interest of inmates in freedom from imposition of serious discipline is a 'liberty' entitled to due process protection."

What is stated by these learned Judges in regard to the rights of a prisoner under the Constitution of the United States applies equally in regard to the rights of a prisoner or detenu under our constitutional system. It must, therefore, now be taken to be well-settled that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the Court which is to use the words of Krishna Iyer, J., "not a distant abstraction omnipotent in the 527 books but an activist institution which is the cynosure of public hope," will immediately spring into action and run to his rescue.

We must therefore proceed to consider whether any of the Fundamental Rights of the detenu are violated by sub- clauses (i) and (ii) of clause 3(b) so as to result in their invalidation wholly or in part. We will first take up for consideration the Fundamental Right of the detenu under Article 21 because that is a Fundamental Right which has, after the decision in Maneka Gandhi's case (supra), a highly activist magnitude and it embodies a constitutional value of supreme importance in a democratic society. It provides that no one shall be deprived of his life or personal liberty except according to procedure established by law and such procedure shall be reasonable fair, and just. Now what is the true scope and ambit of the right to life guaranteed under this Article ? While arriving at the proper meaning and content of the right to life, we must remember that it is a constitutional provision which we are expounding and moreover it is a provision enacting a Fundamental right and the attempt of the court should always be to expand the reach and ambit of the Fundamental right rather than to attenuate its meaning and content. The luminous guideline in the interpretation of a constitutional provision is provided by the Supreme Court of United States in Weems v. U. S. 54 Lawyers Edition 801.

"Legislation, both statutory and constitutional is enacted, it is true, from an experience of evils, but- its general language should not, therefore, be necessarily confined to the form that evil had, therefore taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, "designed to approach immorality as nearly as human institutions can approach it" The future is their care, and provisions for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into important and lifeless formulas. Rights declared in the words might be lost in reality. And this has been recognised. The meaning and vitality of the 528 Constitution have developed against narrow and restrictive construction."

This principle of interpretation which requires that a Constitutional provision must be construed, not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges, applies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.

Now obviously, the right to life enshrined in Article 21 can not be restricted to mere animal existence. It means something much more than just physical survival. In Kharak Singh v. State of Uttar Pradesh Subba Rao J. quoted with approval the following passage from the judgment of Field J. in Munn v. Illinois to emphasize the quality of life covered by Article 21:

"By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world."

and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra case (supra). Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, depriva-

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tion is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.

But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation protanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free will with persons outside the jail. But, as part of the 530 right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reasonable, fair and just.

The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article. The expression 'personal liberty' occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi's case (supra) and it has been held in that case that the expression 'personal liberty used in that Article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19". There can therefore be no doubt that 'personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.

Now obviously when an under-trial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relatives and friends once in a week under Rule 550, it is difficult to understand how sub-clause (ii) of Clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, can possibly be regarded as reasonable and non-arbitrary, particularly when a detenu stands on a higher pedestal than an under-trial prisoner or a convict and, as held by this Court in Sampath Prakash's case (supra) restrictions placed on a detenu must "consistent with the effectiveness of detention, be minimal." We would therefore unhesitatingly hold sub-clause

(ii) of clause 3(b) to be violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu. We are of the view that a detenu must be permitted to have atleast two interviews in a week with relatives and friends and it should be possible for a relative or friend to have interview with 531 the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it should not be necessary to seek the permission of the District Magistrate, Delhi, as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable. We would go so far as to say that even independently of Rules 550 and 559A, we would regard the present norm of two interviews in a week for prisoners as furnishing a criterion of what we would consider reasonable and non-arbitrary.

The same reasoning must also result in invalidation of sub-clause (i) of clause 3(b) of the Conditions of Detention Order which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi and the interview has to take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the case for detention. The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention of filing a writ petition or prosecuting any claim or proceeding, civil or criminal, is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law. A prison regulation may, therefore, regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable, fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so, it would be violative of Articles 14 and 21. Now in the present case the legal adviser can have interview with a detenu only by prior appointment after obtaining permission of the District Magistrate, Delhi. This would obviously cause great hardship and inconvenience because the legal adviser would have to apply to the District Magistrate, Delhi well in advance and then also the time fixed by the District Magistrate, Delhi may not be suitable to the legal adviser who would ordinarily be a busy practitioner and, in that event, from a practical point of view the right to consult a legal adviser would be rendered illusory. Moreover, the interview must take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the detention and this too would seem to be an unreasonable procedural requirement because in order to secure the presence of such officer at the interview, the District Magistrate, Delhi 532 would have to fix the time for the interview in consultation with the Collector of Customs/Central Excise or the Deputy Director of Enforcement and it may become difficult to synchronise the time which suits the legal adviser with the time convenient to the concerned officer and furthermore if the nominated officer does not, for any reason, attend at the appointed time, as seems to have happened on quite a few occasions in the case of the petitioner, the interview cannot be held at all and the legal adviser would have to go back without meeting the detenu and the entire procedure for applying for an appointment to the District Magistrate, Delhi would have to be gone through once again. We may point out that no satisfactory explanation has been given on behalf of the respondents disclosing the rationale of this requirement.

We are therefore of view that sub-clause (i) of clause 3(b) regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Arts. 14 and 21 and must be held to be unconstitutional and void. We think that it would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail, which appointment should be given by the Superintendent without any avoidable delay. We may add that the interview need not necessarily take place in the presence of a nominated officer of Customs/Central Excise/Enforcement but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, then such officer and if his presence cannot be so secured, then any other Jail official may, if thought necessary, watch the interview but not as to be within hearing distance of the detenu and the legal adviser.

We accordingly allow the writ petition and grant relief to the extent indicated above.

V.D.K.					   Petition allowed.
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