Sankar and others vs State of Tamil Nadu

K.M. Natarajan, J.—This petition is filed under Article 226 of the Constitution of India for the issuance of writ of habeas corpus directing the Respondents 1 to 3 to permit the Petitioner''s counsel to have interview with the Petitioners. It is seen from the affidavit filed by the learned Counsel, who appeared for the Petitioners, that the Petitioners were arrested on 4.2.1991 by the Police of Adyar Police Station for an offence u/s 12(1)(C) of the Passport Act. They are Sri Lankan Tamils and they are now detained under the National Security Act on 19.2.1991 by the first Respondent herein. After the assassination of former Prime Minister Thiru Rajiv Gandhi, they were shifted to Central Prison, Salem and again from there to the Special Camp for Sri Lankan Refugees at Thuraiyur, Tiruchi District. It is further stated that the Counsel went to the third Respondent on 21.2.1992 and met the third Respondent for getting permission to meet Petitioners to interview for legal assistance The third Respondent did not let him to interview the Petitioners, telling that at that time no regulation was formed to interview the Petitioners. Third Respondent ultimately directed the counsel to meet the second Respondent for getting permission. On 17.3.1992 he met the second Respondent at his office and presented a letter to get permission for the interview and the second Respondent directed him to meet him after two weeks. Accordingly the counsel met the second Respondent on 3.4.1992 for getting permission to meet the Petitioners and was directed to meet the P.A.(G) to Collector, and endorsed in the counsel''s letter to that effect. Accordingly the counsel met the P.A.(G) who directed him to meet the District Supply Officer. When he met the District Supply Officer, he told the counsel that his representation was sent to the first Respondent for suitable action and reply would be sent to him. No reply has been sent to him by the Respondents and hence this petition.

In the counter affidavit filed by the first Respondent, it is stated that it is true that the Petitioners were arrested on 4.2.1991 for alleged offences under the Indian Passport Act as well as for the offences u/s 12(1)(c) of Indian Passport Act. It is also true that by order bearing Government Orders Ms. No. 223,227 and 218, Public (Law and Order) Department, dt. 19.2.1991, the Petitioners who are Sri Lankan Tamils were detained under the National Security Act. Based on the said order, the Petitioners were lodged in Thuraiyur Special Camp for Sri Lankan Refugees on 18.2.1992. It is further submitted that the Special Camps were ordered to be looked after by the Collectors. The needs of the inmates and the regulation of the visitors were looked after by the respective Collectors. In view of the serious threat perception to the country''s sovereignty as well as to the V.I. Ps'' lives and also in view of the susceptibility of the inmates themselves to outside threat, the Government had ordered to restrict entry of outsiders in the Special Camp. But whenever genuine requests came, after examining the requests, the Collectors were allowing interviews with the inmates by the relatives. There are also instances where the Government have permitted close relatives of the inmates to stay with them in the Special Camp itself. Lastly it is stated in the counter affidavit that the counsel of the Petitioners could not be permitted as he had come to certain adverse notice of the Government.

We have heard the learned Counsel for the Petitioners as well as the Additional Public Prosecutor. The only objection raised by the Additional Public Prosecutor is that the counsel has come to certain adverse notice. Additional Public Prosecutor produced certain confidential communication to the effect that Petitioner''s counsel is a member of a certain association. Beyond that we do not have any other material not to allow the counsel to interview the Petitioners. Further he was not proceeded against by the Government for his alleged unlawful activities and that there is no material to show that he is undesirable and he cannot be permitted to have interview with the Petitioners.

In this connection, the learned Counsel for the Petitioners drew our attention to the decision of the Apex Court in Francis Corali v. Union Territory of Delhi A.I.R.1981 S.C. 746 wherein the Apex Court has considered the same question in paragraphs 10 and 11 as follows:

The same reasoning must also result in invalidation of sub- clause(1) 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 or 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 prescribes 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 caste, 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, 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 further more 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 think 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 learned Counsel argued that there are other decisions also wherein it was held by the Apex Court that the Counsel is entitled to have the right to interview the prisoners. The learned Additional Public Prosecutor did not dispute the ratio laid down in the above decisions and the right of the legal adviser to interview the prisoner/detenu.

In these circumstances, we do not find any merit in the contention of the Additional Public Prosecutor in not allowing the counsel to interview the Petitioner. Hence this petition is allowed. However, we hereby make it clear that the counsel for the Petitioners is directed to approach the Camp Officer-cum-Tahsildar. The Special Camp for Refugees, Thuraiyur, Trichy District and get an appointment for the date and time in advance and then interview the prisoners in accordance with the prison manual.