Sukhjinder Singh vs State of Punjab and ors.

K.S. Tiwana, J.

The petitioner is detained under section 3 (1) read with section 3 (3) of the National Security Act under the orders of the District Magistrate, Kapurthala, and is lodged in the District Jail of that place. The petitioner has filed the petition under Article 226 of the Constitution of India stating that Shri Surjit Singh Sood, Advocate, Jullundur is his legal adviser in many cases. which are pending at Jullundur and this lawyer has been defending him in many cases pending in different courts, including the High Court. Shri Surjit Singh Sood, Advocate, made an application to the Superintendent Jail, Kapurthala, for allowing an interview with the petitioner within the sight but not within the hearing of the police officials. The application was rejected by the Superintendent Jail, Kapurthala, on the ground that such permission should be sought from the Governor. The petitioner has also challenged rule 14 of the Punjab Detenus (Conditions of Detention) JUDGMENT 1981, hereinafter referred as the Rules, being ultravires of Article 21 of the Constitution of India so far as it prescribes for the relatives and friends of the detenus to seek permission from the Government for an interview with him.

The petitioner also made a grievance that he is being supplied with only one newspaper and no book for reading and that the diet money allowed to him is also not commensurate sit rate with his status.

The Deputy Secretary to Government, Punjab Home Department on behalf of the respondents filed the return. The detention of the petitioner was admitted. It was stated :

"Mr. Surjit Singh Sood, Advocate, Jullundur, made a request for an interview with the petitioner the same was allowed by the State Government on 1841984, petitioner made a representation to the State Government requesting therein that interview with the legal counsel may not be in the hearing of Jail official This request of the petitioner was accepted and the Superintendent District Jail, Kapurthala, was asked on 2841984 to allow interview to the counsel to be watched by an officer from a distance not within hearing "

Regarding the interview of the detenu with the members of the family, the position taken by the Deputy Secretary in the affidavit is :

"that according to par a 14 (1) of the Punjab Detenus (Conditions of Detention) JUDGMENT 1981, interview to relatives can be granted by Superintendent Jail on an application made by the relatives once in a week. At a time five persons (not counting the children below the age of 12 years) can interview a detenu. The friends can also seek interview after submitting an application to the District Magistrate of the District in whose jurisdiction the detenu stands confined us provided in State Government JUDGMENT No. 9. 6 47/SDSB/S2, dated 27484 (Annexure R. 1) according to which interview will be in the presence of the police officer. Thus the ruling cited in para 7 of the writ petition is inapplicable The procedure provided for seeking interviews by the relatives and friends with the detenu is intra vires of the provisions of Constitution of India."

It was averred that the petitioner was provided with two newspapers, one in English and the other in a regional language. These were in addition to the facilities of the Jail library, which are available to the detenu. It was stated that diet allowance of the detenu was being increased.

In the return filed by the Superintendent Jail, Kapurthala, respondent No 3, the position taken was on similar lines as of the Deputy Secretary to Government, Punjab, Home Department. The Superintendent Jail additionally, stated about the request of Shri Surjit Singh Sood as :

"The request of Mr. Surjit Singh Sood, Advocate was not acceded to as he did not agree to have the interview conducted within the hearing of the officers of the police and Jails Department, as required under the rules"

The Superintendent Jail averred that no friend could have an interview with the detenu under the Rules. Regarding the newspapers, the position taken by the Superintendent Jail was that English Tribune. Indian Express, Hind Samachar (Urdu), Ajit (Punjabi). Punjab Kesri (Hindi) and two weeklies (illustrated Weekly and Dharam Yug) are being supplied to the detenu and catalogue of library books was also at his disposal to select the books according to his choice.

Vide Notification No. S.O. 41/C. A. 65/80/S. 51 Amd. (2)/84, dated 3rd of May. 1994, the diet allowance of the detenus was increased to ten rupees and eight rupees per day according to the respective class. The learned counsel for the petitioner did not address any arguments on the question of diet allowance and newspapers after the filing of the copy of the aforesaid notification and the return.

Rule 14 of the Rules governs the interviews of the detenu. The relevant portions of rule 14 are as under:

"14. Interviews. (1) Every detenu irrespective of the class shall be allowed to interview his relatives once a week. The interview will be held in the presence and within the hearing of an officer of the Jail and an officer deputed for the purpose by the Superintendent of Police of the District and will last for not more then one hour. A maximum of five persons not counting children below the age of twelve years shall be permitted during each interview. The application for interviews shall be made in Form A annexed to this order.

(2) On an application by the detenu, the State Government or any officer appointed by it for this purpose, may grant special interview with not more than two persons at a time on an adhoc basis in connection with the business or professional matters of the detenu or in the context of serious illness or the detenu or his relative. The interview will be in the presence and within the hearing of a Jail official and an officer deputed for the purpose by the Superintendent of Police of the District and will last for not mare than halfan hour.

(3) Over and above the interview specified in subclauses (1) and (2), every detenu will be entitled to interview an advocate of his choice, subject to the condition that the interview will be purely for purposes of any application the detenu may wish to make to a court of law or in connection with advice relating to matters which may be pending in a court of law in which the detenu is a party. Such interview will be in the presence and within the hearing of a Jail official and an officer deputed for the purpose by the Superintendent of Police of the District."

According to the return, the Punjab Government issued two orders separately, copies of which were produced with return of the Deputy Secretary, Home, as Annexures I and II These are as under :

"Annexure RI

No. 93647/SDSB/S2

Government of Punjab

Department of Home Affairs and Justice

(Home and Integration Branch)

Dated Chandigarh the 2741984.

The Governor of Punjab, in exercise of powers conferred on him under para 14 (2) of the Punjab Detenus (Conditions of Detention) JUDGMENT 1981, is pleased to authorise all District Magistrates in Punjab to accord necessary permission in emergent cases as provided in the Punjab Detenus (Conditions of Detention) JUDGMENT 1981, to Advocates and other eligible relatives of N.S.A. detenuconfined in any jail in their respective jurisdiction to meet these N.S.A. detenus on the days other than the day fixed for interview in the presence of a police officer so deputed by concerned SSP/SP."

"Annexure RII

T.P.M.

UNCLASS/IMMEDIATE

From

Home Secretary, Punjab.

To

Supdt. District Jail Kapurthala.

Copy to : D.M. Kapurthala S. S. P. Kapurthala.

"No. 100709/SDSB/S2, dated 28484.

"Reference your letter No. 222 dated 18.4.84 regarding representation of Shri Sukhjinder Singh MLA requesting to meet legal counsel in presence of jail official but not within their hearing State Government have decided to allow interview to the counsel to be watched by an officer from a distance not within hearing. Action may be taken accordingly."

Shri D.S. Brar, Assistant Advocate General, Punjab, has argued that after the issue of Annexures R I and R II, the petitioner has nothing to urge in the petition as all his demands have been met Shri G S. Grewal, Senior advocate appearing on behalf of the petitioner urged that the interview of the lawyer with the detenu should be allowed by the Superintendent Jail and not by the Government or the District Magistrate, at the hours convenient to the Advocate. He urged that Annexure RII when read suggests that the detenu is allowed to meet his Advocate only once. According to him the cases might require repeated conferences of the detenu with his lawyer and each time the lawyer has to approach the District Magistrate for permission. He has also urged that the refusal on the part of the respondent to allow a friend, as stated by the Superintendent Jail in his return, to interview the detenu was unreasonable and was ultravires of Article 21 of the Constitution of India.

The detenus are in a better position as compared with the convicts. The rules governing the interviews in case of detenus cannot be more strict than the convicts. The Supreme Court in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others, A.I.R. 1981 S.C. 746 pointed out that there is a distinction between a ''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 the preventive detention'' is not by way of punishment at all. But is intended to prevent a person from indulging in conduct injurious to the society. Having regard to this distinctive character of preventive detention, the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal.

The stand of Shri D.S. Brar is untenable. Vide Annexure R1, the District Magistrates have been authorised to allow emergent interview to all eligible relatives of the detenu on the days other than the day fixed for interview in the presence of police officers so deputed by the Senior Superintendent of Police/Superintendent of Police. Not much difference is made by instructions as contained in Annexures RI and RII issued by the Government. as each time the lawyer and the relations have to approach the District Magistrate for permission. Rule 14 does not include friend in it. The Superintendent Jail, respondent No. 3, has taken a categoric stand in the return filed by him that friends cannot be allowed interview with the detenus. as a friend is not covered by the Rules. Rule 14 shows a similar position. Annexures RI and RII also do not include a friend. The return filed by the Deputy Secretary that the friends can also seek interview with the detenus is inconsistent with the return filed by the Superintendent Jail and also Annexures RI and RII. The return of the Deputy Secretary about a friend is of no use as the Superintendent, who is to arrange the interview, has contradicted him in unequivocal terms.

The questions whether a friend is to be allowed interview and whether the Government or the District Magistrate has to grant the permission to the interview of a relation or the legal adviser are not res integra. These came up for decision before the Supreme Court in Francis Coralie''s case (supra). The Rules governing the interview of a detenu in Francis Coralie''s case were :

"3. The conditions of detention in respect of classification and interviews shall be as under :

(a) ... ... ... ... ... ... ...

(b) interviews : Subject to the directions 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 membersA monthly interview may be permitted for the members of the family consisting of wife children or parents of the detenu.

The Supreme Court quashed the aforesaid rule in Francis Coralie''s case (supra).

This very detenu was detained earlier. He was kept in detention in the Central Jail at Ambala. Similar restrictions were placed on the interview of relatives, friends and lawyers, by the Rules made by the Haryana Government. On behalf of the petitioner, these rules were challenged through a criminal writ petition filed by his son and wife, which is reported as Sukhpal Singh and another v. State of Punjab and others, 1984(2) RCR(Crl.) 451 (P&H) : 1984 Cri. L. J. 428 . Rule 13 of the Haryana Detenus (Conditions as to Maintenance, Discipline and Punishment for Breaches of Discipline) JUDGMENT 1980 which was challenged in Sukhpal Singh''s case (supra), is as under

"13. Interviews .........

(1) Every detenu shall be granted interview with a lawyer of his choice with the prior approval in writing of the State Government or the District Magistrate of the District wherein the detenu is detained or the Superintendent and when detained under the orders of the Central Government, that Government, subject to the following conditions, namely

(i) the interview will not be allowed more than once a week;

(ii) the interview will be confined to matters relating to the detenu''s detention or such other judicial matters to pertaining the detention, as may be pending in court;

(iii) the interview will not last more than two hours on any one occasion;

(iv) the interview will be held in the presence and within the hearing of an officer deputed by the State Government or the District Magistrate of the district or the Superintendent or the Central Government, as the case may be.

(2) On an application of a detenu, the District Magistrate of the district wherein the detenu is detained or the Superintendent may grant special interview with not more than one person at a lime to be specified by him in connection with the following matters, namely.

(i) filing of returns or incometax, sales tax, or the like

(ii) business or professional matter if the District Magistrate or the Superintendent is satisfied that such matter cannot be looked after by any one other than the detenu :

Provided that such interview will be held in the presence and within the hearing of an officer deputed by the District Magistrate or the Superintendent.

(3) A detenu may be allowed interview with members of his family and near relatives not exceeding two in number once a fortnight only by the District Magistrate of the district wherein the detenu is detained or the Superintendent, subject to the condition that the interview will be held in the presence and within the hearing of an officer, deputed by the District Magistrate or the Superintendent, as the case may be."

In Sukhpal Singh''s case, this rule 14 of the Punjab Rules was also noticed. Following Francis Coralie''s case, it was held by D S. Tewatia, J. in Sukhpal Singh''s case :

"Their Lordships referred to the rights of undertrial prisoners under R. 559A and rights of a convicted prisoner under R. 550 of the Jail Manual to have the facilities of interviews with relatives and friends twice in a week in order to highlight the harshness of the rules granting such a right once in a month to a detenu regarding whose status their Lordships were of the view that it was higher than that of an undertrial or a convict. Their Lordships struck down the provisions of subclause (ii) of clause 3(b) with the following observations :

"We would therefore unhesitatingly hold subclause (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 at least two interviews in a week with relatives and friends and it should be possible for a 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."

Their Lordships struck down the provisions of subclause (i) of clause 3(b) as violative of Articles 14 and 21 with the following observations :

"The same reasoning must also result in invalidation of subclause (i) of clause 3(b) of the Conditions of Detention JUDGMENT 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 the 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 the 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 could have 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 he 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 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 or the respondent disclosing the rationale of this requirement. We are, therefore, of the view that subclause (i) of clause 3(b) regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Articles 14 and 21 and must be held to he 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 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 he 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 so as to he within bearing distance of the detenu and the legal adviser." Now treating the above norms, as laid down by their Lordships, as the touchstone to examine the reasonableness of the relevant rules. let us now examine the reasonableness of clause (1) and its subclause (iv) and clause (3) of rule 13 of the Haryana Rules in question.

Clause (1) of R 13. to the extent it envisages grant of interview with a lawyer of choice with the prior approval in writing of the State Government or the District Magistrate of the district is unreasonable. So also its subclause (iv) to the extent it envisages holding of the interview within the hearing of an officer deputed by the State Government or the District Magistrate of the district or the Superintendent of the Jail or the Central Government. Sub rule (3) to the extent it restricts interview with members of the family and near relatives of the detenu not exceeding two in number once a fortnight only with the permission of the District Magistrate of the district also suffers from the vice of unreasonableness. The aforesaid provisions are, therefore, liable to be struck down to the extent indicated above as being ultra vires the provisions of Article 21. In my view, the Haryana Government should follow the norms regarding the grant of interview with a lawyer, as prescribed by their Lordships in Francis Coralie Mullin''s case (1981 Cri. LJ. 306 (SC) (supra) till such time, the said norms are included in the rules in accordance with law."

Sukhpal Singh''s case is. complete answer, to the points raised in this case. Mere passing of Annexures RI and RII does not solve the problem of the petitioner in this case. Rules 14(1), 14(2) and 14(3) are struck down to the extent indicated above, by the striking down of similar provisions, in Sukhpal Singh''s case as being ultra vires of the provisions of Article 21 of the Constitution of India. The interview of the petitioner shall be governed by the principles laid down in Francis Coralie''s and Sukhpal Singh''s cases (supra).

For the foregoing reasons, this petition is allowed to the extent indicated above.