|CITATION||1981 AIR 746|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice P.N. Bhagwati|
|DATE OF JUDGEMENT||13.01.1981|
This case elucidated a wider scope of Article 21 of the Constitution i.e. Right to Life. The case laid down various reasons as to what and how other things also encompasses as a Right to Life of an individual as guaranteed by Constitution. It also deals with the rights of prisoners and provisions relating to rights of detenue under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (COFEPOSA Act) to have interview with a lawyer and the members of his family.
The facts of the case are as follows: The petitioner, a British national, was arrested and detained in the Central Jail Tihar under an Order dated 23.12.1979 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 27.02.1980, her petition was rejected.
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 she being a child of very tender age.
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, she desired to consult her lawyer, but even her lawyer found it difficult to obtain an interview with her. In order to arrange an interview, the Lawyer was 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. Even after obtaining prior appointment from the District Magistrate, Delhi, her lawyer could not have an interview with her since the Customs Officer nominated by the Collector of Customs remained absent at the appointed time, these restrictions were imposed by the Prison Authorities by virtue of clause 3(b) sub-clauses (i) and (ii).
The petitioner, therefore, preferred a petition under Article 32 challenging the constitutional validity of sub-clauses (i) 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 main issues in the case were:
- Whether the right to life under Article 21 is limited only to protection of limb or faculty or does it go further and embrace something more.
- Whether or not a person preventively detained in a prison has any rights which he can enforce in a Court of law.
Summary of court decision and judgment
The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. To emphasize the quality of life covered by Article 21 the following passage was quoted in Kharak Singh v. State of Uttar Pradesh
“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.”
The Court thus held 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 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, but no law which authorizes and no procedure which leads to 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.
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 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 socialize 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.
The Court further observed that when an under-trial prisoner is allowed to have interview twice in a week and a convicted prisoner is allowed to have interview with his friends and family once a week it is unreasonable to not allow same treatment to a detenue.
Thus, the Court gave the final decision by holding the clause 3(b) is violative of Article 14 and 21 thus unconstitutional and void. While allowing the writ petition the Court gave directions to the jail authorities to allow interviews to the detenue at any reasonable hour during the day after taking appointment from the Superintendent of the jail, and such appointment was directed to be given by the Superintended without any avoidable delay.
Also 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 detenue and the legal adviser.
‘Preventive detention’ 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 the 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 recognize 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 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 lay down restrictions on the power of preventive detention.Which means 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 Article 22 but also of Article 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.
In D. B. Patnaik v. State of Andhra Pradesh it was clearly spelled out that “fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration.” The prisoner or detenue 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.
Thus the Court in this case has delivered an appropriate judgment by marking a difference between punitive detention and preventive detention and also by granting relief to the detenue to seek interviews with friends and family and lawyer with much less formalities.
“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 over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”
This judgment was pronounced in this case which also states that this right to life can only be abridged by following the procedure established by law and such procedure shall not be arbitrary or against the principles of natural justice. Thus the Court inculcated the doctrine of ‘Due process of Law’ in our doctrine of ‘Procedure established by Law’.
 1963 AIR 1295.
 1978 AIR 597
 1974 AIR 2092