- (1.) J:- This Petition under Article 32 of the Constitution raises a question in regard of the right of a detenu under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA Act) to have interview with a lawyer and the members of her family. The facts giving rise to the petition are few and undisputed and may be briefly stated as follows : The petitioner, who is a British national, was arrested and detained in the Central Jail, Tihar under an order dated 23rd Nov. 1979, issued under Sec. 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 27th February, 1980, (Reported in AIR 1980 SC 849), her petition was rejected with the result that she continued to remain under detention in the Tihar Central Jail. Whilst 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 a child of very tender age. It seems that 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, it was necessary for her to consult her lawyer, but even her lawyer found it difficult to obtain an interview with her because in order to arrange an interview, he was required to obtain prior appointment from the District Magistrate, Delhi and the interview could take place only in the presence of a Custom officer nominated by the Collector of Customs. This procedure for obtaining interview caused considerable hardship and inconvenience and there were occasions when even after obtaining prior appointment from the District Magistrate Delhi, her lawyer could not have an interview with her since no Customs Officer nominated by the Collector of Customs remained present at the appointed time. The petitioner was thus effectively denied the facility of Interview with her lawyer and even her young daughter 5 years old could not meet her except once in a month. This restriction on interviews was imposed by the Prison Authorities by virtue of Clause 3 (b) sub-clauses (i) and (ii) of the Conditions of Detention laid down by the Delhi Administration under an Order dated 23rd August 1975, issued in exercise of the powers conferred under Section 5 of the COFEPOSA Act. These two sub-clauses of clause 3 (b) provided inter alia as under : "3. The conditions of detention in respect of classification and interviews shall be as under- (a) .............................. (b) Interviews: Subject to the direction 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 members :- A monthly interview may be, permitted for members of the family consisting of wife, children or parents of the detenu ...................." The petitioner therefore, preferred a petition in this Court 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.
(2.) The principal ground on which the constitutional validity of sub-clauses (i) and (ii) of clause 3 (b) of the Conditions of Detention Order was challenged was that these provisions were violative of Articles 14 and 21 of the Constitution inasmuch as they were arbitrary and unreasonable. It was contended on behalf of the petitioner that allowing interview with the members of the family only once in a month was discriminatory and unreasonable, particularly when undertrial prisoners were granted the facility of interview with relatives and friends twice in a week under Rule 559A and convicted prisoners were permitted to have interview with their relatives and friends once in a week under Rule 550 of the Rules set out in the Manual for the Superintendence and Management of Jails in the Punjab. The petitioner also urged that a detenue was entitled under Article 22 of the Constitution to consult and be defended by a legal practitioner of her choice and she was, therefore entitled to the facility of interview with a lawyer whom she wanted to consult or appear for her in a legal proceeding and the requirement of prior appointment for interview and of the presence of a Customs or Excise Officer at the interview was arbitrary and unreasonable and therefore violative of Arts. 14 and 21. The respondents resisted the contentions of the petitioner and submitted that sub-clauses (i) and (ii) of Clause 3 (b) were not violative of Arts. 14 and 21, since the restrictions imposed by them were reasonable, fair and just, but stated that they would have no objection if instead of a monthly interview, the petitioner was granted the facility of interview with her daughter and sister twice in a week as in the case of under-trial prisoners and so far as interview with the lawyer is concerned, they would not insist on the presence of a customs or excise officer at the interview. Though these two concessions were made on behalf of the respondents at the hearing of the petition before us, the question still remains whether sub-clauses (i) and (ii) of Clause 3 (b) are valid and it is necessary that we should examine this question in the context of our constitutional values, since there are a large number of detenus under the COFEPOSA Act and the conditions of their detention in regard to interviews must be finally settled by this Court.
(3.) Now it is necessary to bear in mind the distinction between 'preventive detention' and 'punitive detention', when we are considering the question of validity of conditions of detention. There is a vital distinction between these two kinds of detention. 'Punitive detention' is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while 'preventive detention' is not by way of punishment at all, but it is intended to prevent 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 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 recognise 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. But apart from Article 22, there is also Article 21 which lays down restrictions on the power of preventive detention. Until the decision of this Court in Maneka Gandhi v. Union of India. (1978) 1 SCC 248: (AIR 1978 SC 527), a very narrow and constricted meaning was given to the guarantee embodied in Article 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of his life or personal liberty without the authority of law. It was construed only as a guarantee against executive action unsupported by law. So long as there was some law, which prescribed a procedure authorising deprivation of life or personal liberty, it was supposed to meet the requirement of Article 21. But in Maneka Gandhi's case (supra), this Court for the first time opened-up a new dimension of Article 21 and laid down that Article 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. It is not enough to secure 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. but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Article 21. This Court expanded the scope and ambit of the right to life and personal liberty enshrined in Article 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights. This decision in Meneka Gandhi's case became the starting point the spring-board for a most spectacular evolution of the law culminating in the decisions in M. O. Hoskot v. State of Maharashtra, (1979) 1 SCR 192 : (1978 Cri LJ 1978), Hussainara Khatoon's case, (1980) 1 SCC 81 : (1979 Cri LJ 1036) the first Sunil Batra's case (1979) 1 SCR 392 : (1978 Cri LJ 1741) and the second Sunil Batra's case (1980) 2 SCR 657 : (1980 Cri LJ 1099). The position now is that Article 21 as interpreted in Maneka Gandhi's case (supra) requires that 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 Art. 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. But despite these safeguards laid down by the Constitution and creatively evolved by the Courts, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused. It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of a trial where he has the fullest opportunity to defend himself, while in case of preventive detention he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the Executive is very limited. Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him. but at curtailing his liberty with a view to preventing his injurious activities in future, it has been laid down by this Court in Sampat Prakash v. State of Jammu and Kashmir. (1969) 3 SCR 574 : (1969 Cri LJ 1555) "that the restrictions placed on a person preventively detained must consistently with the effectiveness of detention, be minimal".;