judgement:
ition No. 3042 of 1980.
(Under Article 32 of the Constitution.) N. M. Ghatate (Dr.) and section V. Deshpande for the Petitioner.
Hardayal Hardy and M. N. Shroff for the Respondents Nos. 1 2.
The Judgment of the Court was delivered by BHAGWATI, 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 & Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA Act) to have interview with a lawyer and the members of his 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 November 1979 issued under section 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, 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 521 required to obtain prior appointment from the District Magistrate, Delhi and the interview could take place only in the presence of a Customs 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) 522 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.
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 under trial 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 detenu was entitled under Article 22 of the Constitution to consult and be defended by a legal practitioner of his choice and she was, therefore entitled to the facility of interview with a lawyer whom he wanted to consult or appear for him 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 Articles 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 Articles 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 clause (i) and (ii) of cl.
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.
Now it is necessary to bear in mind the distinction between 'preventive detention ' and punitive detention ', when we are considering 523 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 pre empt 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.
vs Union of India, 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 Maneka Gandhi 's case became the starting point the spring board for a most spectacular evolution the law culminating in the decisions in M. O. Hoscot vs 524 State of Maharashtra,, Hussainara Khatoon 's case, the first Sunil Batra 's case and the second Sunil Batra 's case.
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 article 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 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 pre empting his injurious activities in future, it has been laid down by this Court in Sampat Prakash vs State of Jammu and Kashmir "that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal." The question which then arises is whether a person preventively detained in a prison has any rights which he can enforce in a Court 525 of law.
Once his freedom is curtailed by incarceration in a jail, does he have any fundamental rights at all or does he leave them behind, when he enters the prison gate ? The answer to this question is no longer res integra.
It has been held by this Court in the two Sunil Batra cases that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration.
" The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration.
Even before the two Sunil Batra cases, this position was impliedly accepted in State of Maharashtra vs Prabhakar Sanzgiri and it was spelt out clearly and in no uncertain terms by Chandrachud, J. as he then was, in D. B. Patnaik vs State of Andhra Pradesh : "Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess.
A compulsion under the authority of law, following upon a conviction, to live in a prison house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession.
A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence.
But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment.
Likewise, even a convict is entitled to the precious right guaranteed by article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.
" This statement of the law was affirmed by a Bench of five Judges of this Court in the first Sunil Batra case (supra) and by Krishna Iyer, J. speaking on behalf of the Court in the second Sunil Batra case (supra).
Krishna Iyer, J. in the latter case proceeded to add in his characteristic style; "The jurisdictional reach and range of this Court 's writ to hold prison caprice and cruelty in constitutional leash is incontestable" and concluded by observing; "Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ ' aid.
The Indian human has a constant companion the Court armed with the Constitution.
" 526 It is interesting to note that the Supreme Court of the United States has also taken the same view in regard to rights of prisoners.
Mr. Justice Douglas struck a humanistic note when he said in Eve Pall 's case : "Prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process." So also in Charles Wolff 's case, Mr. Justice White made the same point in emphatic terms.
"But, though his rights may be diminished by environment, a prisoner is not wholly stripped off constitutional protections, when he is imprisoned for crime.
There is no iron curtain drawn between the Constitution and the prisons of this country." Mr. Justice Douglas reiterated his thesis when he asserted: "Every prisoner 's liberty i.e. of courses, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial.
Conviction of a crime does not render one a non person whose rights are subject to the whim of the prison administration, and therefore, the imposition of any serious punishment within the system requires procedural safeguards." Mr. Justice Marshall also expressed himself clearly and explicitly in the same terms: "I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court 's holding that the interest of inmates in freedom from imposition of serious discipline is a 'liberty ' entitled to due process protection.
" What is stated by these learned Judges in regard to the rights of a prisoner under the Constitution of the United States applies equally in regard to the rights of a prisoner or detenu under our constitutional system.
It must, therefore, now be taken to be well settled that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the Court which is to use the words of Krishna Iyer, J., "not a distant abstraction omnipotent in the 527 books but an activist institution which is the cynosure of public hope," will immediately spring into action and run to his rescue.
We must therefore proceed to consider whether any of the Fundamental Rights of the detenu are violated by sub clauses (i) and (ii) of clause 3(b) so as to result in their invalidation wholly or in part.
We will first take up for consideration the Fundamental Right of the detenu under Article 21 because that is a Fundamental Right which has, after the decision in Maneka Gandhi 's case (supra), a highly activist magnitude and it embodies a constitutional value of supreme importance in a democratic society.
It provides that no one shall be deprived of his life or personal liberty except according to procedure established by law and such procedure shall be reasonable fair, and just.
Now what is the true scope and ambit of the right to life guaranteed under this Article ? While arriving at the proper meaning and content of the right to life, we must remember that it is a constitutional provision which we are expounding and moreover it is a provision enacting a Fundamental right and the attempt of the court should always be to expand the reach and ambit of the Fundamental right rather than to attenuate its meaning and content.
The luminous guideline in the interpretation of a constitutional provision is provided by the Supreme Court of United States in Weems vs U. section 54 Lawyers Edition 801.
"Legislation, both statutory and constitutional is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had, therefore taken.
Time works changes, brings into existence new conditions and purposes.
Therefore, a principle, to be vital, must be capable of wider application than mischief which gave it birth.
This is peculiarly true of constitutions.
They are not ephemeral enactments designed to meet passing occasions.
They are, to use the words of Chief Justice Marshall, "designed to approach immorality as nearly as human institutions can approach it" The future is their care, and provisions for events of good and bad tendencies of which no prophecy can be made.
In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be.
Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power.
Its general principles would have little value, and be converted by precedent into important and lifeless formulas.
Rights declared in the words might be lost in reality.
And this has been recognised.
The meaning and vitality of the 528 Constitution have developed against narrow and restrictive construction.
" This principle of interpretation which requires that a Constitutional provision must be construed, not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges, applies with greater force in relation to a fundamental right enacted by the Constitution.
The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.
Now obviously, the right to life enshrined in Article 21 can not be restricted to mere animal existence.
It means something much more than just physical survival.
In Kharak Singh vs State of Uttar Pradesh Subba Rao J. quoted with approval the following passage from the judgment of Field J. in Munn vs Illinois to emphasize the quality of life covered by Article 21: "By the term "life" as here used something more is meant than mere animal existence.
The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world." and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra case (supra).
Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling.
Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged.
Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, depriva 529 tion is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law.
It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.
But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more.
We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one self in diverse forms, freely moving about and mixing and commingling with fellow human beings.
Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.
Every act which offends against or impairs human dignity would constitute deprivation protanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.
Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.
It would thus be seen that there is implicit in Article 21 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 guaranteed by Article 7 of the International Covenant on Civil and Political Rights.
This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration.
The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free will with persons outside the jail.
But, as part of the 530 right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reasonable, fair and just.
The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article.
The expression 'personal liberty ' occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi 's case (supra) and it has been held in that case that the expression 'personal liberty used in that Article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19".
There can therefore be no doubt that 'personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non arbitrary.
If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.
Now obviously 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 is difficult to understand how sub clause (ii) of Clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, can possibly be regarded as reasonable and non arbitrary, particularly when a detenu stands on a higher pedestal than an under trial prisoner or a convict and, as held by this Court in Sampath Prakash 's case (supra) restrictions placed on a detenu must "consistent with the effectiveness of detention, be minimal.
" We would therefore unhesitatingly hold sub clause (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 atleast two interviews in a week with relatives and friends and it should be possible for a relative or friend to have interview with 531 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.
We would go so far as to say that even independently of Rules 550 and 559A, we would regard the present norm of two interviews in a week for prisoners as furnishing a criterion of what we would consider reasonable and non arbitrary.
The same reasoning must also result in invalidation of sub clause (i) 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 of 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 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 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 532 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 of the respondents disclosing the rationale of this requirement.
We are therefore of view that sub clause (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 be 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 given by the 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 be 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 as to be within hearing distance of the detenu and the legal adviser.
We accordingly allow the writ petition and grant relief to the extent indicated above.
V.D.K. Petition allowed.

summary:
Allowing the writ petition, the Court ^ HELD : (1) While considering the question of validity of conditions of detention courts must necessarily bear in mind the vital distinction between 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 preventive detention is not by way of punishment at all, but it is intended to pre empt a person from indulging in conduct injurious to the society.
[523 A B] (2) 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 in many countries it is not allowed to be exercised except in times of war or aggression.
The Indian 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 enjoins that 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, Article 21 also lays down restrictions on the power of preventive detention.
[523 B D] Article 21 as interpreted in Maneka Gandhi 's case 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 or 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 must, therefore, pass the test not only of Article 22 but also of Article 21.
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 517 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, inasmuch as the preventive detention is qualitatively different from punitive detention and their purposes are different.
In case of punitive detention, the person has fullest opportunity to defend himself, while in case of preventive detention, the opportunity that he has for contesting the action of the Executive is very limited.
Therefore, the "restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal".
[524A G] Maneka Gandhi vs Union of India, ; ; M.O. Hoscot vs State of Maharashtra, ; ; Hussainara Khatoon vs State of Bihar, ; ; Sunil Batra (I) vs Delhi Administration, ; ; Sunil Batra (II) vs Delhi Administration, ; , referred to.
Sampat Prakash vs State of Jammu and Kashmir, ; , followed.
The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration.
A prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the Court will immediately spring into action and run to his rescue.
[525 B C, 526 G H, 527 A] Sunil Batra (I) vs Delhi Administration, ; ; Sunil Batra (II) vs Delhi Administration, ; , State of Maharashtra vs Prabhakar Sanzgire ; ; D. B. Patnaik vs State of Andhra Pradesh, ; , followed.
Eve Pall 's Case; , 41 Lawyers Edition 2nd 495; Charles Wolffs Case, 41 Lawyers Edition 2nd 935, quoted with approval.
(4) While arriving at the proper meaning and content of the right to life, the attempt of the court should always be to expand the reach and ambit of the fundamental right rather than to attenuate its meaning and content.
A constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges.
This principle applies with greater force in relation to a fundamental right enacted by the Constitution.
The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.
[527 C D, 528 A C] Weems vs U.S. 54 Lawyers Edition 801, quoted with approval.
(5) The right to life enshrined in Article 21 cannot be restricted to mere animal existence.
It means something much more than just physical survival.
518 Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling.
Now deprivation which is inhibited by Article may be total or partially neither any limb or faculty can be totally destroyed nor can it be partially damaged.
Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law.
Therefore any act which damages or injures or interferes with the use of any limb or faculty of a person either permanently or even temporarily, would be within the inhibition of Article 21.
[528 D, G H, 529 A] Kharak Singh vs State of Uttar Pradesh, , followed.
Munn vs Illinois , referred to.
Sunil Batra vs Delhi Administration, ; , applied.
(6) The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
The magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.
Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.
Therefore, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruelty, inhuman or degrading treatment can ever stand the test of reasonableness and non arbitrariness: it would plainly be unconstitutional and void as being violative of Article 14 and 21.
[529 B F] (7) There is implicit in Article 21 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 guaranteed by Article 7 of the international Covenant on Civil and Political Rights.
This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore, when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration.
The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can be socialise at his free will with persons outside the jail.
But, as part of the right to live with human dignity and therefore, as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and 519 friends can be upheld as constitutionally valid under Article 14 and 21, unless it is reasonable, fair and just.
Considered from the point of view also of the right to personal liberty enshrined in Article 21, the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article.
The expression "personal liberty" occurring in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19".
Therefore, personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non arbitrary.
If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.
[530 B E] Maneka Gandhi vs Union of India, ; , applied.
(8) Sub clause (ii) of clause 3(b) of the Conditions of Detention Order is violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu.
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, sub clause (ii) of clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, is unreasonable and arbitrary, particularly when a detenu stands on a highest pedestal than an under trial prisoner or a convict.
A detenu must be permitted to have at least two interviews in a week with relatives and friends and it should be possible for 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.
Even independently of Rules 550 and 559A, of the Punjab Manual for the Superintendence and Management of Jails, the present norm of two interviews in a week for prisoners furnishes a reasonable and non arbitrary criterion.
[530 F H, 531 A B] Sampath Prakash vs State of Jammu and Kashmir, ; , applied.
(9) Sub clause (i) of clause 3(b) of the Conditions of Detention Order regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Article 14 and 21 and therefore unconstitutional and void, 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 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 be conveniently secured at the time of the interview without involving any postponement of the interview, than such officer and if his presence cannot be so secured, 520 then any other Jail official may, if thought necessary, watch the interview but in a month to a detenu.
When an under trial prisoner is granted the facility [532C F] (10) 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 filling 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.
[531C E]


judgement:
ICTION: Criminal Appeal No. 368 of 1975 Appeal by special leave from the Judgment and Order dated 5 4 1974 of the Calcutta High Court in Crl.
No. 193 of 1971.
D. N. Mukherjee, M. M. Kshtriya, A. K. Ganguli and G. section Chatterjee for the appellant.
T. section Arora for RR 1,3 to 17.
664 Uma Dutta for Respondent No. 2.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated April 5, 1974 of the Calcutta High Court by which the order of the trial court was set aside and the case was remitted for fresh hearing in the light of the directions given by the High Court.
The High Court further directed that the Commitment Inquiry held by Mr. R. P. Roy Chowdhury who was the Trial Magistrate, should be held by some other Magistrate.
The facts of the case lie within a very narrow compass and the central controversy turns upon the interpretation of section 14 of the Official Secrets Act.
, 1923 (hereinafter referred to as the 'Act ').
It appears that a complaint was filed on the 20th March 1969 against 38 accused persons under section 120B of the Indian Penal Code read with sections 3 9, and 10 of the Act.
The charges against the accused were no doubt very serious and concerned the security of the State, as the accused persons are alleged to have passed on some military secrets to the enemy resulting in serious detriment to the safety and security of our country.
Of the 38 accused persons named in the chargesheet, only 17 were in custody and a commitment inquiry into the charges was held against them by the trial Magistrate.
During the commitment inquiry the State filed an application under section 14 of the Act praying that the proceedings be held in camera and public should be excluded from attending the hearings of the case because the statements made in the course of the proceedings would be prejudicial to the safety of the State.
It was also prayed that apart from excluding the public from the hearings of the proceeding, the accused should not be allowed to have access to, or be given copies of, the statements of the witnesses recorded by the Magistrate or those recorded earlier during police investigation.
The Magistrate partly allowed the application but permitted the defence lawyer to take copious notes of the statements of witnesses in order to be in a position to cross examine the witnesses.
Subsequently, the Magistrate directed the lawyer to produce his notebook so that the Magistrate may examine if only a summary of the evidence had been taken by the lawyer or the statements had been taken in extenso in which case it would amount to publication and, therefore, would be barred by section 14 of the Act.
The lawyer of the defence appearing before the Magistrate first agreed to show his note book but later claimed privilege under section 126 of the Evidence Act on the ground that the register in which he had taken down the notes of the evidence also contained certain instructions given 665 to him which amounted to a privileged communication and could not be looked into by the Court.
In this view of the matter the Magistrate found himself helpless and proceeded with the inquiry.
As the prosecution was not satisfied with the procedure adopted by the Magistrate, the State filed a revision before the High Court for quashing of the order of the Magistrate in allowing the lawyer to cross examine the witnesses without impounding the notes comprising the statements of the witnesses taken down in extenso by the lawyer.
The High Court after hearing the counsel for the parties thoroughly examined the entire position and ultimately came to a finding that the Magistrate should have taken legal action against the lawyer for flouting the orders of the Court by not producing the notebook on the plea of privilege which did not hold any water.
The High Court was further of the opinion that in view of the provisions of section 14 of the Act not only could the public be excluded from taking part at the hearing but even the statements of witnesses recorded by the court or other documents could not be made available to the accused or his counsel nor could copies of the said documents be given to the accused.
In this view of the matter the High Court quashed the order of the Magistrate and remitted the case to the trial court to be heard by some other Magistrate in view of the directions given by it.
Hence, this appeal to this Court.
We have been taken through the entire judgment of the High Court by the learned counsel for the parties.
The two Judges who decided the case agreed in the conclusion but have given separate reasons for coming to the conclusion arrived at by them.
The only question that is to be determined in the present appeal is as to the scope and ambit of section 14 of the Act.
Mr. Mukherjee, appearing for the State, however, submitted that on a close scrutiny of the language employed in section 14, it would appear that the statute contains a two fold bar (1) that publication of any evidence cannot be given, and (2) that public should be excluded from attending the hearing of the proceedings.
The learned counsel appearing for the respondent submitted that section 14 does not in any way deprive the valuable right of the accused to get copies of the statements of witnesses recorded during the commitment inquiry or the documents or statements recorded by the police which is a statutory right conferred on the accused under the Code of Criminal Procedure and the Criminal rules framed thereunder by various High Courts.
All that section 14 prohibits is that the public be excluded from attending the hearings of the inquiry.
Since the Magistrate had already acceded to this prayer of the accused, there was nothing more that could be done by him.
666 It appears that the Calcutta High Court has been consistently taking the view as adumbrated by the learned counsel for the appellant, viz., that the court has a discretion under section 14 of the Act not only to hold the proceedings in camera by excluding the public but also has the discretion to prohibit publication of any evidence given in the course of the proceedings.
In Ramendra Singh vs Mohit Choudhary & Ors.
a Division Bench of the Calcutta High Court went to the extent of holding that the Act prescribes a special procedure and, therefore, overrides the procedure for trial under section 251A or 252 of the Code of Criminal Procedure as amended by the Act of 1955.
In this connection, the High Court observed as follows: "The prosecution is under the Official Secrets Act and it is unlikely that the Legislature would provide for a camera trial and at the same time provide for giving copies of all documents under section 173 to the accused.
This strikes at the root of secrecy and goes counter to the provisions of trial in camera and this is why the Legislature purposely used the word 'complaint ' and provided for a special procedure regarding cognizance.
This view finds support from the provisions of Section 14 of the Act providing for camera trial.
The Official Secrets Act provides for a special procedure of complaint and if it was upon a complaint by a person authorised under the Act, cognizance was taken under Section 190(1) (a) and not under Section 190(1) (b).
The procedure for trial would therefore, be under Section 252 of the Code of Criminal Procedure and not under Section 251A.
In respect of prosecution under Section 252 of the Code of Criminal Procedure there is no compulsory provision for giving copies of documents referred to under Section 173 and the opposite parties are not, therefore, entitled to copies as of right.
" The decision under appeal follows the aforesaid decision and has taken the same view.
In a later decision in In Re Anthony Allen Fletcher vs State, the Calcutta High Court seems to have struck a slightly different note.
In that case, the court was considering the question of bail and the exclusion of the public from attending the hearing of the case, where the following observations were made: 667 "On a Consideration of the provisions of the Statute as also the imprimatur of the judicial decisions, we ultimately hold that in view of the specific provisions contained in Section 14 of the Official Secrets Act, 1923 when it reasonably appears to the Court that a trial eatiis apertis would have the risk of any publication of any evidence to be given or any statements to be made in course of the proceedings would be prejudicial to the safety of the State, the Court in exercise of its discretion can exclude the public from such proceedings and that this power is in addition to the inherent power exercised by the Court to do justice.
" It may be noticed that the High Court did not go to the extreme of holding that even the statements or evidence recorded by the Magistrate in the course of the proceedings would have to be excluded under section 14.
All that was held by the High Court was that the Court has a discretion to exclude the public from the proceedings and that this power of exclusion was available to the court apart from the inherent power which every Court possessed in this matter.
With due respect we find ourselves in agreement with the view taken by the Calcutta High Court in Fletcher 's case (supra) as mentioned above.
However, we find ourselves unable to agree with the view taken by the High Court in the judgment under appeal for the reasons that we shall give hereafter.
We might also mention that section 14 was interpreted by this Court in Naresh Shridhar Mirajkar & Ors.
vs State of Maharashtra & Anr., where this Court while dealing with the question of holding proceedings in camera observed as follows: "Having thus enunciated the universally accepted proposition in favour of open trials, it is necessary to consider whether this rule admits of any exceptions or not.
Cases may occur where the requirement of the administration of justice itself may make it necessary for the court to hold a trial in camera.
While emphasising the importance of public trial, we cannot overlook the fact that the primary function of the Judiciary is to do justice between the parties who bring their causes before it.
If a Judge trying a case is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? . .
That is why we 668 feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course. .
It is the fair administration of justice which is the end of judicial process, and so, if ever a real conflict arises between fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or controlled in the interest of administration of justice.
" While interpreting the scope and ambit of section 14 this Court in Naresh Shridhar Mirajkars case (supra) observed as follows: "It would be noticed that while making a specific provision authorising the court to exclude all or any portion of the public from a trial, section 14 in terms recognises the existence of such inherent powers by its opening clause.
" It may be pertinent to note that while this Court was fully alive to the contents of section 14, it neither held that the opening part of the section amounted to a non obstante clause nor that the section in any way deprived the accused of the right of getting copies of the statements of witnesses recorded by the court or before the police.
In the aforesaid case, the Supreme Court was concerned with a defamation case but the observations made by this Court fully apply to the facts of the present case also on the view that we take on the scope and ambit of section 14 of the Act.
There can be no doubt that an open trial held in public is the general rule and seems to be the very concomitant of a fair and reasonable trial, yet the public can be excluded from the hearings of the trial and the proceedings can be held in camera only under very exceptional circumstances as pointed out by this Court in the aforesaid case.
This being the position, section 14 must be interpreted so as to fall in line with the observations made and the test laid down by this Court regarding the doctrine of holding proceedings in camera.
A close and careful scrutiny of section 14 would itself clearly show that the section does not contemplate the type of exclusion that the High Court seems to think.
It is true that offences under the Act are very serious offences and maintenance of secrecy is of the very essence of the matter but that by itself will not justify the legislature to pass an Act so as to deprive an accused of the valuable right to defend or for that matter to stifle the defence itself.
The importance of holding trial in camera in cases under the Official Secrets Act has been emphasised in R.V. Socialist 669 Worker Printers and Publishers Ltd. & Anr., where Lord Widgery, C. J., observed as follows: "When one has an order for trial in camera, all the public and all the press are evicted at one fell swoop and the entire supervision by the public is gone.
The actual conduct of the trial, the success or otherwise of the defendant, does not turn on this kind of thing, and very often the only value of the witness 's name being given as opposed to it being withheld is that if it is published up and down the country other witnesses may discover that they can help in regard to the case and come forward.
" With this background we shall now proceed to examine the language of section 14 of the Act itself which may be extracted thus: "14.
Exclusion of public from proceedings.
In addition and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a Court against any person for an offence under this Act or the proceedings on appeal, or in the course of the trial of a person under this Act, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that all or any portion of the public shall be excluded during any part of the hearing, the Court may make an order to that effect, but the passing of sentence shall in any case take place in public." To begin with, the opening words of the section, namely, 'In addition and without prejudice to any powers which a Court may possess ' clearly reveal that the intention of the legislature was to give only an enabling additional power to the court regarding holding the proceedings in camera.
In other words, the legislature never intended that the inherent powers possessed by the court to hold the proceeding in camera in suitable cases would be in any way affected by section 14 but the intention was merely to give an additional power to strengthen the hands of the court for holding the proceedings in camera where the necessities of the situation demanded.
Thus, to begin with, section 14 is merely an enabling and not a barring provision.
Mr. Mukherjee argued that the opening words of section 14, referred to above, really amount to a non obstante clause overriding the provisions 670 of all Acts including the Code of Criminal Procedure and the mode of trial contemplated by section 14 would take precedence over the mode of trial provided by section 251A or 252 of the Code of Criminal Procedure.
We are, however, unable to agree with this extreme argument which in fact overstates the law.
It is well settled that a non obstante clause has doubtless the effect of overriding the provisions of a law or of the law in which the said clause is inserted.
Sarathi in 'Interpretation of Statutes ' defines a non obstante clause thus: "A section sometimes begins with the phrase 'notwithstanding anything contained etc. '.
Such a clause is called a non obstante clause and its general purpose is to give the provision contained in the non obstante clause an overriding effect in the event of a conflict between it and the rest of the Section." In Aswini Kumar Ghosh & Anr.
vs Arabinda Bose & Anr.
Sastri, C.J., held that the non obstante clause cannot reasonably be read as overriding anything contained in any relevant existing law which is inconsistent with the new enactment.
These are the well settled rules of interpretation of a non obstante clause.
Normally, a non obstante clause is always expressed in a negative form, that is to say, by using the words 'notwithstanding anything contained ' or 'anything contained in a previous law shall not affect the provisions of a particular Act ' and so on.
In the instant case, the words 'in addition and without prejudice to any powers cannot be construed to be a non obstante clause at all so as to override other provisions of the Act or those of the Code of Criminal Procedure.
In these circumstances, therefore, the argument of Mr. Mukherjee that the opening words of section 14 amount to a non obstante clause cannot be accepted on a simple and plain interpretation of the opening part of section 14.
This takes us to the substantive portion of the Act on which reliance was placed both by Mr. Mukherjee and by the High Court so as to hold that the section not only conferred powers on a court for holding the proceedings in camera but also to exclude publication of any evidence which includes the right of the accused to get copies of the statements recorded during police investigation or during the inquiry or during trial.
With great respect to the learned Judges of the Calcutta High Court, we feel that the main part of the section has not been correctly interpreted by them.
The High Court seems to have taken for granted that section 14 consists of two separate parts, one, providing for a trial in camera, and the other prohibiting publication of 671 evidence.
By the expression 'publication of evidence ' is meant, according to the High Court, the power to deprive an accused of the right to get copies of the evidence recorded by the court or the statements recorded during the police investigation.
We might mention here that as section 13(3) of the Act clearly provides that no court shall take cognizance of any offence under the Act except upon a complaint made by or under the authority of the Government or any person empowered by it, it is manifest that section 251A of the Code of Criminal Procedure, as amended by the Act of 1955, will not apply because the present case was not instituted on a police report but on the basis of a complaint.
As the occurrence had taken place before the Code of 1973, therefore, the provisions of section 207 of the Code of 1973 would not apply to the present case.
The question, however, is: does the first part of section 14 empower the court to take away the valuable right of an accused of getting copies of the statements recorded by the Magistrate before the Court ? Even before the amending Act of 1955, under the criminal rules framed by various High Courts, an accused was undoubtedly entitled to have copies of the statements of witnesses recorded by the police.
This is a very valuable right because without having the statements recorded by the police in his possession, it would be difficult, if not impossible, for an accused to defend himself effectively.
It is well settled that fouler the crime the higher should be the proof.
If an accused is not supplied either the statements recorded by the police or the statement of witnesses recorded at the inquiry or the trial, how can he possibly defend himself and instruct his lawyer to cross examine the witnesses successfully and effectively so as to disprove the prosecution case.
We, therefore, think that section 14 could never have intended to take away or deprive an accused of this valuable right which has been conferred on him by the criminal law of the land.
The legislature when it passed the Act in 1923 was aware of the provisions of the Code of Criminal Procedure which had conferred the valuable right on an accused in order to defend himself.
Indeed, if any of these rights were to be taken away, we should have expected a clearer and more specific language used in section 14 to connote such an intention.
Our reading of section 14 is merely this: that the first part of the section does not prohibit or exclude giving to an accused copies of the statements of witnesses either during police investigation or in court but is mentioned merely as a motive or reason for holding the proceedings in camera.
The entire sentence starting from 'application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that all or any portion of the 672 public shall be excluded during any part of the hearing ' has to be read conjunctively as one composite sentence and there is no warrant for truncating it into two separate parts dealing with different subject matters.
The words 'publication of any evidence ' on which great stress has been laid by Mr. Mukherjee and the High Court do not indicate that the accused should not be allowed access to the evidence recorded by the court, are merely made to highlight the ground for holding the proceedings in camera because if public are allowed to be present during the hearing the evidence which is recorded in their presence it will amount to publication and it is in that sense alone that the word 'publication ' has been used in section 14.
Indeed, if the interpretation put by the High Court or by Mr. Mukherjee is accepted then the provisions of section 14 will have to be struck down as being violative of articles 14 and 21 of the Constitution of India.
This Court has now widened the horizon of the concept of liberty, as contained in article 21 so as to give the word 'procedure ' a very wide connotation.
In Maneka Gandhi vs Union of India while detailing the attributes of a fair trial as contemplated in article 21 this Court observed as follows: "The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14.
It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
" Thus, if we hold that section 14 by using the word 'publication ' deprives an accused of getting any copies of the statement of witnesses or of the judgment under section 548 of the Code of Criminal Procedure or Criminal Rules 308 and 310 framed by the Calcutta High Court, then it would be difficult to uphold the constitutional validity of section 14 because then the procedure would become extremely unreasonable harsh and prejudicial to the accused as a result of which the case would have been tried according to a procedure which was not in consonance with the provisions of article 21 of the Constitution.
This aspect of the matter does not appear to have been considered by the High Court perhaps because Maneka Gandhi 's case (supra) came much later.
673 Mr. Mukherjee submitted that if the accused is allowed to have access to the statements recorded by the police or is given a copy of the statement recorded by the Magistrate, then it will amount to publication and will endanger the safety and security of the country because the accused or the lawyer who is defending the accused may publish the statements or disclose the same to other persons.
This apprehension, in our opinion, is not well founded.
The Act itself takes particular care of such a situation because under the provisions of section 5 of the Act any person who is found in possession or control of any document or information and makes it public would also be deemed to have committed an offence under that section and would be prosecuted and entitled to a heavy penalty.
This, therefore, prohibits even the lawyers from disclosing the evidence outside the court.
So far as the arguments and the discussion of the evidence inside the court is concerned, so long as the proceedings are in camera the danger of publication is completely excluded.
The High Court had been rather bitter on the trial Magistrate when it observed that he could compel the lawyer to submit his register.
The observations made by the High Court on the conduct of the Magistrate or on the lawyer were not at all called for because both of them were doing their duties according to law.
On the view that we have taken, the Magistrate was fully justified in not compelling the lawyer to surrender his register which undoubtedly contained a part of the privileged communication and even if the lawyer had taken down the evidence in extenso for the limited purpose of using it to defend the accused or cross examine the witnesses, he could not be prevented from doing so, nor does section 14 contemplate or envisage such a course of action.
The Magistrate also in declining to give copies of the statements concerned to the accused, took an erroneous view of section 14 of the Act which, as we have already held, did not debar the Magistrate from giving copies to the accused for the purpose of his defence.
Thus, we are satisfied that the judgment of the High Court under appeal is vitiated by an error of law and it has not correctly interpreted section 14 of the Act.
Similarly the earlier decision of the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal vs Satyen Bhowmik & Ors.
cannot be held to be good law and must be overruled.
Thus on an overall consideration of the facts and circumstances of the case and a true interpretation of the language employed in section 14 of the Act, we reach the following conclusions: 1.
That section 14 apart from providing that the proceedings of the Court may be held in camera under the circumstances men 674 tioned in the Section, does not in any way affect or override the provisions of the Criminal Procedure Code relating to enquiries or trials held thereunder.
That section 14 does not in any way deprive the valuable rights of the accused to get copies of the statement recorded by the Magistrate or statements of witnesses recorded by the police the documents obtained by the Police during the investigation as envisaged by criminal Rules 308 and 310 framed under the Code of Criminal Procedure by various High Courts nor does section 14 in any way affect the right of the accused to get copies under section 548 of the Code of Criminal Procedure.
That the opening words of section 14 do not amount to a non obstante clause but are merely in the nature of an enabling provision reserving the inherent powers of the Court to exclude the public from the proceedings if the Court is of the opinion that it is just and expedient to do so.
That there was absolutely no impropriety on the power of the Magistrate in not taking action against the defence lawyer for his refusal to show his register because the lawyer had rightly claimed privilege under section 126 of the Evidence Act as the register contained instructions given by the client which being privileged could not be disclosed to the Court.
On a parity of reasoning we find no impropriety on the conduct of the lawyer in refusing to show the statement of witnesses recorded by the Court in extenso in order to prepare himself for an effective cross examination of the witnesses.
Hence the strictures passed by the High Court on the Magistrate as also on the lawyer of the defence were, in our opinion, totally unwarranted.
That if the lawyer of the defence or staff of the Court or any one who was not excluded from the hearing of the case made any attempt to disclose the contents of the documents or the statements of the witnesses, exposed himself to a prosecution on a charge under section 5 of the Act.
For the reasons given above, we overrule the view of the High Court and the reasons given therefor that section 14 of the Act prohibits the giving of copies of the statement concerned to the accused or that the lawyer is prohibited from taking the statements in extenso and had a duty to show the same to the court.
We also overrule the view taken by the High Court regarding the interpretation of section 14 of the Act.
675 We do not agree with the High Court that the case should be tried by some other Magistrate but as lot of time has elapsed, surely the Magistrate against whose orders revision was taken to the High Court must have been transferred by this time.
Therefore, the case will now be inquired into by a Magistrate who is available in the light of the observations made by us.
The appeal is disposed of accordingly.

dataset_name: IN-Abs

summary:
Section 14 of the Official Secrets Act provides that in addition to and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a Court against any person for an offence under this Act, the prosecution makes an application that publication of any evidence to be given would be prejudicial to the safety of the State.
The Court may make an order prohibiting the publication of evidence to be given or of any statement to be made in the course of proceedings if it is of opinion that the proceedings would be prejudicial to the safety of the State.
On the allegation that the accused had passed on some military secrets to the enemy resulting in serious detriment to the safety and security of the country the accused were charge sheeted under sections 3, 9 and 10 of the Act.
During the commitment inquiry the prosecution prayed that the accused should not be allowed to have access to or be given copies of statements of witnesses recorded by the Magistrate.
The defence lawyers were allowed to take notes of the statements of witnesses.
When the Magistrate asked the defence lawyers to produce their note books for perusal, they claimed privilege under section 126 of the Evidence Act on the ground that they contained certain instructions given to them by the accused which amounted to privileged communication and that for this reason they could not be looked into by the Court.
The Magistrate upheld the objection.
Purporting to follow one of its earlier decisions the High Court in a revision filed by the State held that the Magistrate should have taken legal action against the lawyer for flouting its order by not producing the note books on the ground of privilege.
It also held that in view of the provisions of section 14 of the Act not only could the public be excluded from the hearing but even the statements of witnesses recorded by the Court could not be made available to the accused or his counsel.
In appeal to this Court it was contended that the opening words of section 14 really amounted to a non obstante clause overriding the provisions of all Acts including the Code of Criminal Procedure and the mode of trial contemplated by section 14 would take precedence over the mode of trial provided by section 251 A 662 or section 252 of the Code and (2) the Magistrate could not only hold the proceedings in camera but could exclude publication of any evidence, including the right of accused to get notes of the statements recorded during the police investigation or during inquiry or trial.
^ HELD: The opening words of section 14 "in addition and without prejudice to any powers which a Court may possess" clearly reveal that the intention of the legislature was to give only an enabling additional power to the Court regarding holding of the proceedings in camera.
The legislature never intended that the inherent powers possessed by the Court to hold the proceedings in camera in suitable cases should in any way be affected by section 14.
The intention was merely to give an additional power to strengthen the hands of the Court for holding the proceedings in camera where the necessities of the situation demanded.
[669F H] It is well settled that a non obstante clause has the effect of overriding the provisions of a law or of the law in which the said clause is inserted.
The non obstante clause cannot reasonably be read as overriding anything contained in any relevant existing law which is inconsistent with the new enactment.
Normally a non obstante clause is always expressed in a negative form i.e. by using the words "notwithstanding anything contained" or "anything contained in previous law shall not affect the provisions of a particular Act" and so on.
[670B E] In the instant case the words "in addition and without prejudice to any powers" cannot be construed to be a non obstante clause at all so as to override other provisions of the Act or those of the Code of Criminal Procedure.
[670E] Aswini Kumar Ghosh & Anr.
vs Arabinda Bose & Anr. ; referred to.
Interpretation of Statutes, Vepa P. Sarathi, 2nd Edn.
referred to.
Section 14 not only confers powers on a Court for holding the proceedings in camera but also to exclude publication of any evidence which includes the right of the accused to get copies of the statements recorded during police investigation or during the inquiry or during trial.
[670G] The right to obtain copies of statements of witnesses recorded by the police is a very valuable right because without having those statements in his possession, it would be difficult for the accused to defend himself effectively.
If an accused is not supplied either the statements recorded by the police or the statements of witnesses recorded at the inquiry or the trial he cannot defend himself and instruct his lawyer to cross examine the witnesses successfully and effectively so as to disprove the prosecution case.
[671D E] Section 14, therefore.
could never have intended to take away or deprive an accused of this valuable right which has been conferred on him by the Criminal Law of the land.
The first part of the section does not prohibit or exclude giving to an accused person copies of the statements of witnesses either during police investigation or in court but is mentioned merely as a motive or reason for holding proceedings in camera.
The entire sentence starting from "application is made by the prosecution on the ground that the publication of any evidence to be given or of any statement to be made in the course of the 663 proceedings would be prejudicial to the safety of the State" that all or any portion of the public should be excluded during any part of the hearing has to be read conjunctively as one composite sentence and there is no warrant for truncating it into two separate parts dealing with different subject matters.
The words 'publication of any evidence ' do not indicate that the accused should not be allowed access to the evidence recorded by the Court: they are merely made to highlight the ground for holding the proceedings in camera because if public are allowed to be present during the hearing the evidence which is recorded in their presence will amount to publication and it is in that sense alone that the word publication has been used in section 14.
[671F H] If it is held that section 14, by using the word 'publication ' deprives an accused of getting any copies of the statement of witnesses or of the judgment under section 548 of the Code of Criminal Procedure or Criminal Rules of Practice framed by the High Court then it would be difficult to uphold the constitutional validity of section 14 because in that event the procedure would become extremely unreasonable, harsh and prejudicial to the accused as a result of which the case would have been tried according to a procedure which was not in consonance with the provisions of article 21 of the Constitution.
[672G H] The apprehension that if the accused was allowed access to copies of statements recorded by the police or the Magistrate it would amount to publication, is not well founded.
Under the provisions of section 5 of the Act, any person who is found in possession or control of any document or information and makes it public would also be deemed to have committed an offence under that section and would be prosecuted and liable to a heavy penalty.
This prohibits even the lawyers from disclosing the evidence outside the Court.
[673B C] In the instant case the Magistrate was fully justified in not compelling the lawyer to surrender his register which contained a part of the privileged communication and even if the lawyer had taken down the evidence in extenso for the limited purpose of using it to defend the accused or cross examine the witnesses, he could not be prevented from doing so, nor does section 14 contemplate or envisage such a course of action.
[673E F] The Superintendent and Remembrancer of Legal Affairs, West Bengal vs Satyen Bhowmik & Ors., , overruled.
Anthony Allen Fletcher vs State 78 Calcutta Weekly Notes 313 approved.
Naresh Shridhar Mirajkar & Ors.
vs State of Maharashtra