Francis Coralie Mullin v.

Union Territory of Delhi

1981 AIR 746, 1981 SCR (2) 516

BHAGWATI, P.N., FAZALALI, SYED MURTAZA

13 January, 1981

1. Facts:

This is a landmark judgment to determine the distinction between preventive detention

with punitive detention under the scope of Article 21 of the Indian Constitution and
determining the constitutional validity of restricting the right of detention to get an
interview with their lawyer and contact with their family members.

The writ petition under Article 32 was filed before the Court regarding the rights of a
detenu under the Conservation of Foreign Exchange & Prevention of Smuggling
Activities Act, 1974. The petitioner was a British National who was detained in Central
Jail Tihar under Section 3 of COFEPOSA. She approached the Court for a writ of habeas
corpus challenging her detention however, her petition was dismissed. Under her
detention, she faced difficulties in contacting her lawyer and family members including
her daughter of tender age, to whom she was only allowed to meet once a month as per
Section 3(b) (ii). She was detained on attempting to smuggle hashish out of the country
and hence for her defence, interview with her lawyer was of extreme importance.
However, due to the cumbersome procedure as laid down in S. 3(b) (i) of getting a prior
appointment, the interview could not take place.

The petitioner challenged that these provisions were violative of Article 14 and 21 of the
Indian Constitution as they were arbitrary and unreasonable.

2. Issue:
 Whether sub-clause (i) and (ii) of clause 3 (b) of COFEPOSA are Constitutionally
valid?
3. Judgment:

The Court allowed the writ petition and granted relief to the petitioner and held that
Section 3(b) (i) regulating the right of a detenu to have an interview with a legal adviser
of his choice is unconstitutional as it violates Article 14 and 21 of the Constitution. The
Court also stated that it is reasonable for the detenu to have an interview with his legal
adviser at any reasonable hour during the day after taking an appointment from the
Superintendent of the Jail which should be given without any avoidable delay. The Court
also added that the interview need not necessarily take place in the presence of a
nominated officer of Customs/Central Excise/Enforcement and any other Jail official
may, if necessary, supervise the interview but not as to be within hearing distance of the
detenu and the legal adviser. The Court held Section 3(b) (ii) as invalid as it prescribes
that a detenu can have an interview with her family members and friends only once a
month whereas an under-trial and convicted prisoner can avail this facility twice and once
a week, respectively.

The Court explained the difference between preventive detention and punitive detention.
‘Punitive detention’ essentially inflicts punishment on a person, who is found to be guilty
of committing an offense, whereas ‘preventive detention’ is intended to pre-empt a person
from indulging in conduct injurious to the society. Our Constitution does recognize the
existence of the latter, but various safeguards are set out in Articles 21 and 22 for the
functioning of the same. Any law or action by way of preventive detention must conform
to the restrictions laid down by those clauses for the want of validation. Moreover, Article
21 determines restriction on law-making and merely securing compliance with the
prescription of Article 21 that there should be a law prescribing some semblance of a
procedure for depriving a person of his life or personal liberty is not enough, but this
procedure prescribed by the law must be reasonable, fair and just. If the same cannot be
established, the law would be void as violating the guarantee of Article 21. It becomes
imperative to pass the test of both Article 21 and 22 for a law of preventive detention to
be valid and the duty falls on the Court to decide whether the procedure laid down
depriving a person of his personal liberty is reasonable, fair and just. The courts have to
be ever vigilant to see that this power is not abused or misused and is dealt with caution.
The Court also reiterated that the restrictions placed on a person preventively detained
must, consistently with the effectiveness of detention, be minimal. Fundamental rights of
a person continue to embed in him despite him being detained and hence, a convict is also
entitled to the rights guaranteed under Article 21. The Court referred similar views of
judges of the Supreme Court of U.S. to conclude that a prisoner or detenu is not stripped
of his fundamental or other legal rights, save those which are inconsistent with his
incarceration.
The right of life and personal liberty is not a provision enacting a Fundamental right and
the attempt of the Court should always be to expand the reach and ambit of the
Fundamental Rights rather than to attenuate its meaning and content. The fundamental
right to life is the most precious human right and should hence be interpreted in an
expansive spirit that will intensify its significance by enhancing the dignity and worth of
and individual and his life.

4. Held:

The Court went to the extent of analysing the meaning of ‘life’ to determine what entails
the right to life. The Court recommended it to be not merely restricted to animal existence
but meaning more than just physical survival. It is inclusive of all those limbs and
faculties by which life is enjoyed. The Court considered even partial damage to such limb
or faculty as a deprivation, whether it be permanent or temporary or continuing. It also
held that the right to life includes the right to live with human dignity and to fulfil the
bare necessities of life. It includes within itself the right to carry on such functions and
activities as constituting the bare minimum expression of the human-self. From this
interpretation, the right to protection against torture or cruel, inhuman or degrading
treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights
and also guaranteed by Article 7 of the International Covenant on Civil and Political
Rights is implicit in Article 21 of the Constitution. This undeniable right can only be
abridged according to the procedure established by law and therefore a detenu cannot
move freely outside the jail however would be entitled to have interviews with family
members and friends and no procedure curtailing this right can stand the test of
reasonable, fair and just under Article 14 and 21. It was fairly pointed that when an
under-trial prisoner is granted the facility of interviews with relatives and friends twice in
a week under Rule 559A and a convicted prisoner is permitted to have interviews with his
relatives and friends once in a week under Rule 550, it cannot be reasonably justified to
restrict the same facility to a detenu. The restrictions enlisted in S. 3(b) (i) and (ii) cannot
be held to be valid. These rights form an indispensable part of the right to live with
human dignity and this right cannot be deprived of or be interfered with.