IN THE SUPREME COURT OF INDIA
1981 AIR 746, 1981 SCR (2) 516
Francis Coralie Mullin
The Administrator, Union
Date of Judgement
13 January, 1981
N. Bhagwati, J.; Syed Murtaza Fazalali, J.
The present case is a landmark judgment to determine the distinction between preventive detention with punitive detention under the scope of Article 21 of the Indian Constitution and determining the constitutional validity of restricting the right of detenu to get an interview with their lawyer and contact with their family members.
Facts of the case
The writ petition under Article 32 has come before the Court regarding the rights of a detenu under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (‘COFEPOSA’).
The petitioner was a British National who was detained in Central Jail Tihar under Section 3 of COFEPOSA. She approached the Court for a writ of habeas corpus challenging her detention however, her petition was dismissed. Under her detention, she faced difficulties in contacting her lawyer and family members including her daughter of tender age, to whom she was only allowed to meet once a month as per Section 3(b) (ii). She was detained on attempting to smuggle hashish out of the country and hence for her defence, interview with her lawyer was of extreme importance. However, due to the cumbersome procedure as laid down in S. 3(b) (i) of getting a prior appointment, the interview could not take place.
The petitioner challenged that these provisions were violative of Article 14 and 21 of the Indian Constitution as they were arbitrary and unreasonable.
Statue and provisions discussed
Section 3(b)(i) and (ii) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 read with Rule 559A and 550 of the Punjab Manual of the Superintendence and Management of Jails.
- Whether sub-clause (i) and (ii) of clause 3 (b) of COFEPOSA are Constitutionally valid?
The petitioner contended that allowing only one meeting with family members per month was discriminatory and unreasonable, especially when the same was not the procedure for under-trial prisoners who were permitted the access of an interview twice per week as per Rule 559A and convicted prisoners who were granted the same facility once a week under Rule 550 of the Rules in the Manual for the Superintendence and Management of Jails in Punjab. It was also urged that Article 22 of the Constitution entitles the detenu to be represented by a legal practitioner of his choice but in this case, the requirement of prior appointment for interview and of the presence of a Customs or Excise Officer at the interview was arbitrary and unreasonable, for it deprived her of this right, and therefore was violative of Articles 14 and 21 of the Constitution.
The respondents submitted that the clauses were not violative of Articles 14 and 21 as the restrictions imposed were reasonable, fair and just. It was accepted by them that instead of a monthly interview, the petitioner could be granted the facility of an interview twice a week with her daughter and sister as in the case of under- trial prisoners and they would relax the condition of presence of a customs or excise officer at the interview with the lawyer.
The Court allowed the writ petition and granted relief to the petitioner and held that Section 3(b) (i) regulating the right of a detenu to have an interview with a legal adviser of his choice is unconstitutional as it violates Article 14 and 21 of the Constitution. The Court also stated that it is reasonable for the detenu to have an interview with his legal adviser at any reasonable hour during the day after taking an appointment from the Superintendent of the Jail which should be given without any avoidable delay. The Court also added that the interview need not necessarily take place in the presence of a nominated officer of Customs/Central Excise/Enforcement and any other Jail official may, if necessary, supervise the interview but not as to be within hearing distance of the detenu and the legal adviser. The Court held Section 3(b) (ii) as invalid as it prescribes that a detenu can have an interview with her family members and friends only once a month whereas an under-trial and convicted prisoner can avail this facility twice and once a week, respectively.
The Court explained the difference between preventive detention and punitive detention. ‘Punitive detention’ essentially inflicts punishment on a person, who is found to be guilty of committing an offense, whereas ‘preventive detention’ is intended to pre-empt a person from indulging in conduct injurious to the society. Our Constitution does recognize the existence of the latter, but various safeguards are set out in Articles 21 and 22 for the functioning of the same. Any law or action by way of preventive detention must conform to the restrictions laid down by those clauses for the want of validation. Moreover, Article 21 determines restriction on law-making and merely securing 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 is not enough, but this procedure prescribed by the law must be reasonable, fair and just. If the same cannot be established, the law would be void as violating the guarantee of Article 21. It becomes imperative to pass the test of both Article 21 and 22 for a law of preventive detention to be valid and the duty falls on the Court to decide whether the procedure laid down depriving a person of his personal liberty is reasonable, fair and just. The courts have to be ever vigilant to see that this power is not abused or misused and is dealt with caution. The Court also reiterated that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal. Fundamental rights of a person continue to embed in him despite him being detained and hence, a convict is also entitled to the rights guaranteed under Article 21. The Court referred similar views of judges of the Supreme Court of U.S. to conclude that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration.
The right of life and personal liberty is not a provision enacting a Fundamental right and the attempt of the Court should always be to expand the reach and ambit of the Fundamental Rights rather than to attenuate its meaning and content. The fundamental right to life is the most precious human right and should hence be interpreted in an expansive spirit that will intensify its significance by enhancing the dignity and worth of and individual and his life.
The Court went to the extent of analyzing the meaning of ‘life’ to determine what entails the right to life. The Court recommended it to be not merely restricted to animal existence but meaning more than just physical survival. It is inclusive of all those limbs and faculties by which life is enjoyed. The Court considered even partial damage to such limb or faculty as a deprivation, whether it be permanent or temporary or continuing. It also held that the right to life includes the right to live with human dignity and to fulfil the bare necessities of life. It includes within itself the right to carry on such functions and activities as constituting the bare minimum expression of the human-self. From this interpretation, 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 also guaranteed by Article 7 of the International Covenant on Civil and Political Rights is implicit in Article 21 of the Constitution. This undeniable right can only be abridged according to the procedure established by law and therefore a detenu cannot move freely outside the jail however would be entitled to have interviews with family members and friends and no procedure curtailing this right can stand the test of reasonable, fair and just under Article 14 and 21. It was fairly pointed that 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 cannot be reasonably justified to restrict the same facility to a detenu. The restrictions enlisted in S. 3(b) (i) and (ii) cannot be held to be valid. These rights form an indispensable part of the right to live with human dignity and this right cannot be deprived of or be interfered with.
- The difference between preventive detention and punitive detention is established.
- The meaning of life not delimited to animal existence but is inclusive of the right to live with human dignity and to avail the bare necessities of life.
Edited by Parul Soni
Approved & Published – Sakshi Raje
Maneka Gandhi v. Union of India, 1978 AIR 597.
 Sampat Prakash v. State of Jammu & Kashmir, 1970 AIR 1118.
Kharak Singh v. State of Uttar Pradesh, 1963 AIR 1295.