1981 (1) TMI 273 - SC - FEMA

Right of a detenu under COFEPOSA Act - interview with a lawyer and the members of his family - preventive detention and punitive detention right to life in detention.

Issues Involved:
1. Constitutional validity of restrictions on interviews with family members and legal advisers for detenus under COFEPOSA Act.
2. Violation of Articles 14 and 21 of the Constitution.
3. Distinction between preventive detention and punitive detention.
4. Rights of prisoners and detenus under the Constitution.
5. Right to life and personal liberty under Article 21.

Issue-Wise Detailed Analysis:

1. Constitutional Validity of Restrictions on Interviews:
The petitioner, detained under the COFEPOSA Act, faced restrictions on interviews with her lawyer and family members. The petitioner challenged the validity of sub-clauses (i) and (ii) of clause 3(b) of the Conditions of Detention Order, which limited family interviews to once a month and required prior appointment and the presence of a Customs Officer for legal consultations. These restrictions were imposed by the Delhi Administration under an Order dated 23rd August 1975.

2. Violation of Articles 14 and 21:
The petitioner argued that these restrictions were arbitrary and unreasonable, violating Articles 14 and 21 of the Constitution. Article 21 guarantees the right to life and personal liberty, which includes the right to reasonable, fair, and just procedures. The petitioner contended that the restrictions were discriminatory when compared to the facilities provided to under-trial and convicted prisoners. Under-trial prisoners were allowed interviews twice a week, and convicted prisoners once a week, as per the Punjab Jail Manual Rules 559A and 550, respectively.

3. Distinction Between Preventive and Punitive Detention:
The Court emphasized the vital distinction between preventive and punitive detention. Preventive detention aims to pre-empt harmful conduct, while punitive detention punishes proven offenses. Preventive detention, recognized as a necessary evil, is subject to safeguards under Articles 21 and 22. The Court noted that restrictions on preventive detention must be minimal, consistent with the effectiveness of detention.

4. Rights of Prisoners and Detenus:
The Court affirmed that prisoners and detenus retain their fundamental rights, except those incompatible with incarceration. Fundamental rights do not vanish upon entering prison; they may only suffer necessary shrinkage. The Court cited previous judgments, including the Sunil Batra cases, to support this view. The Court also referenced U.S. Supreme Court decisions, emphasizing that prisoners are entitled to constitutional protections unless lawfully curtailed.

5. Right to Life and Personal Liberty Under Article 21:
The Court expanded the interpretation of Article 21, stating that the right to life includes the right to live with human dignity, encompassing basic necessities and the ability to communicate and socialize. Any form of torture or degrading treatment violates Article 21. The Court held that the right to have interviews with family and legal advisers is part of the right to life and personal liberty. Therefore, prison regulations must be reasonable, fair, and just.

Judgment:
The Court found sub-clause (ii) of clause 3(b) unreasonable and arbitrary, as it allowed only one interview per month for detenus, compared to more frequent interviews for under-trial and convicted prisoners. The Court held that detenus should be allowed at least two interviews per week with family and friends, without needing the District Magistrate's permission. Similarly, sub-clause (i) was deemed unconstitutional, as it imposed unreasonable requirements for legal consultations. The Court ruled that detenus should be able to meet their legal advisers at reasonable hours, with appointments arranged through the Jail Superintendent, without unnecessary delays or the mandatory presence of a Customs Officer.

Conclusion:
The petition was allowed, and the Court granted relief by declaring the contested sub-clauses unconstitutional and void. The Court directed that detenus be permitted more frequent and less restricted interviews with family and legal advisers, ensuring compliance with Articles 14 and 21.

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