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George Fernandes Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application Nos. 442 and 443 of 1963
Judge
Reported in(1964)66BOMLR185; 1964MhLJ297
AppellantGeorge Fernandes
RespondentThe State of Maharashtra
DispositionPetition allowed
Excerpt:
bombay conditions of detention order, 1951. clauses 16(ii), 12, 15 and 19 - bombay jail manual, rules 1357, 1360--maharashtra prison (discipline) rules, 1963. rule 19(4)--whether there is any restriction as to number of books to be mode available under clause 16(ii) of order--unsuitability of book under clause 16(ii) how to be determined.;under clause 16(ii) of the bombay conditions of detention order, 1951, there is no restriction as to the number of books to be made available to a security prisoner.;the only ground on which a book may be withheld from a security prisoner is on the decision of the superintendent that it is unsuitable. the discretion to decide the suitability of the book or publication will have to operate within a well-defined field. the book may be unsuitable.....abhyankar, j.1. though these two petitions under article 226 of the constitution have been wrongly registered as criminal applications, and in one of them (criminal application no. 43 of 1963) it is also shown in brackets that they are in the matter of habeas corpus, this is entirely incorrect. the petitions ought to have been registered as special civil applications under article 226 of the constitution under which provision they have been made by the respective petitioners. they have been dealt with accordingly.2. the petitioner in criminal application no. 43 of 1963 is shri george fernandes, at present detained in the nagpur central prison. shri a.b. bardhan has also been detained in the nagpur central prison. it is from that prison that these two petitions have been forwarded to this.....
Judgment:

Abhyankar, J.

1. Though these two petitions under Article 226 of the Constitution have been wrongly registered as Criminal Applications, and in one of them (Criminal Application No. 43 of 1963) it is also shown in brackets that they are in the matter of habeas corpus, this is entirely incorrect. The petitions ought to have been registered as Special Civil Applications under Article 226 of the Constitution under which provision they have been made by the respective petitioners. They have been dealt with accordingly.

2. The petitioner in Criminal Application No. 43 of 1963 is Shri George Fernandes, at present detained in the Nagpur Central Prison. Shri A.B. Bardhan has also been detained in the Nagpur Central Prison. It is from that prison that these two petitions have been forwarded to this Court through the Superintendent of the Jail.

3. Shri Fernandes was detained under an order of detention dated April 4, 1963, passed by the Commissioner of Police, Greater Bombay, under Rule 30 of the Defence of India Rules and was lodged in the Nasik Road Central Prison, Nasik. Thereafter he was removed to Arthur Road Prison, Bombay, and since July 1, 1963, Shri Fernandes has been transferred to Nagpur Central Prison and continues to be there except for a short period from August 4 to 10, 1968, when he was lodged in the Delhi Central Prison, New Delhi, in connection with his application for leave to appeal before the Supreme Court.

4. Shri Bardhan has been detained on the basis of an order dated November 7, 1962, initially passed about his detention. Thereafter there was a fresh order of detention passed by the District Magistrate, Nagpur, on November 11, 1962, under Rule 30 of the Defence of India Rules and the petitioner Shri Bardhan has been detained in the Nagpur Central Prison since November 7, 1962. He was released by an order of this Court on August 29, 1963, but was immediately rearrested on the same date and has been detained under orders of the State Government from that date in the prison at Nagpur.

5. The common question that has been raised by the two petitioners in these cases is that they are governed by the Bombay Conditions of Detention Order, 1951, which has been made applicable in the case of detenus detained under the Defence of India Rules, by an order under notification No. S.B. III/DOR. 1162-III, dated November 9, 1962, published in the Maharashtra Government Gazette dated November 15, 1962. The Notification is to the effect that the Government of Maharashtra was pleased to determine in exercise of its powers under Sub-rule (4) of Rule 30 of the Defence of India Rules, 1962, that the conditions as to maintenance, discipline and the punishment of offences and breaches of discipline, governing persons ordered to be detained in any place in the State of Maharashtra, shall be the same as those contained in the Bombay Conditions of Detention Order, 1951. It is on account of this Notification that each of the petitioners claims that he has been denied certain privileges granted to the detenus under the provisions of el. 16 of the said Bombay Conditions of Detention Order, 1951. The grievance of the petitioners is that under the said provision a detenu is entitled to receive books subject only to the condition that any such book may be refused by the Superintendent (i.e. respondent No. 2 in each of these petitions) if in his opinion such a book is not suitable, but this rule is not being followed by respondent No. 2 who is Superintendent of the Nagpur Central Prison, and instead he has arbitrarily fixed the number of books to be made available to each petitioner at one time at twelve, of which ten may be non-religious books and two may be religious books. The petitioners' contention is that there is no justification for so restricting the number of the books to be made available to either of them.

6. Shri Fernandas has alleged that he is an active and prominent trade union worker and member of the Socialist Party of India and a member of its National Committee. As a full time social, political and trade union worker he, constantly needs to, and in fact does, study books on multifarious social, political economic and trade union subjects. He also contemplated writing of articles and notes on the topics mentioned above. For this purpose he has received from his personal source number of books on those topics. While he was in Nasik Road Central Prison the Superintendent of that prison had refused only a few of those books as in his opinion such books were not suitable; they were placed in a sealed parcel and accompanied the prisoner from that place to his present place of detention. The rest of the books were handed over to the petitioner in the Nasik Road Prison, in the Arthur Road Prison, Bombay, as also in the Delhi Central Prison. The number of such books was stated to be about fifty-eight. This figure was stated by the petitioner during his arguments. When the petitioner Shri Fernandes was transferred to Nagpur Central Prison, respondent No. 2 refused to hand over all the books to the petitioner. The petitioner was informed by respondent No. 2 that he might have only six books at a time and no more. The petitioner pointed out that in other prisons he was allowed to keep all his books and that he required most of them for reference in the course of his study. Respondent No. 2 declined and intimated that his decision was final since in his opinion more than six books amounted to building up a library. Subsequently the petitioner Shri Fernandes was told by respondent No. 2 that he was prepared to permit use of twelve books at a time instead of six as originally fixed. Thus, at the time the petition was made the maximum number of books that were made available to the petitioner was twelve, and this intimation was given to Shri Fernandes on September 11, 1963, when he was summoned by respondent No, 2 to his office and orally informed that the Government had ordered that the petitioner shall be permitted to have in his possession at a time not more than two religious and ten non-religious books of his own.

7. The petitioner Shri Bardhan has stated that he is an active and prominent trade unionist and a prominent member of the Communist Party of India, and a member of the State Secretariat of the Maharashtra Committee of the Communist Party. As a full time social, political, and trade union worker, he constantly needs to, and in fact does, study books on multifarious social, political, economic and trade union subjects and during the period of his detention he contemplated writing articles and notes on these topics and for this purpose he received from his personal source number of books on those topics-and is in need of many more books from his own sources. His complaint is similar to that of Shri Fernandes that respondent No. 2 has refused to hand over all the books required by him on the ground that he could have only six books at a time and no more. Shri Bardhan had pointed out to respondent No. 2 that the facility was always being enjoyed by him, during his earlier detention, and it is a tradition in this country that several books have been written by detenus in the past. Subsequently Shri Bardhan was told by respondent No. 2 that he was prepared to permit the petitioner twelve books at a time instead of six as offered earlier.

8. Both the petitioners, therefore, urge that the restriction put by respondent No. 2 is unreasonable and an infringement of their right. The action of respondent No. 2 is arbitrary as all the detenus in other prisons are allowed to possess books of their own without restriction as to number. They further referred to Rules 1360 and 1357 of. the rules in the Jail Manual, Bombay, and also provisions of the Bombay Conditions of Retention Order, 1951, and pointed out that the restriction put on the number of books to be supplied, by respondent No. 2 is unwarranted by the rules and not justifiable. They have, therefore, come up to this Court for a proper direction to respondents in the matter of supply of books.

9. To each of these petitions the State of Maharashtra and the Superintendent of the Nagpur Central Prison, Nagpur, are impleaded as parties. Respondent No. 2 alone, however, has filed a return in each of these cases. The learned Assistant Government Pleader appearing for both the respondents has not been able to give any reason as to why respondent No. 1 has not chosen to file a return. The normal rules of pleading will, therefore, be applicable and except on points of law, all the allegations made by the petitioners will be deemed to have been accepted by respondent No. 1. In particular, we would like to point out that Shri Fernandes has made a specific allegation in para. 4 of his petition that he has been allowed facility of having unrestricted number of books subject to their suitability in all the three other prisons, namely, Nasik Road Central Prison, Arthur Road Prison and Delhi Central Prison, wherein he was detained, and there was no restriction put on the number of books that he had in those prisons. This allegation has not been denied by respondent No. 1, and we must decide on the footing that this allegation is uncontroverted and is based on factual data.

10. Respondent No. 2 has filed his return on September 26, 1963. After referring to the Government Notification of November 9, 1962, by which, the Bombay Conditions of Detention Order, 1951, was made applicable to detenus detained under the Defence of India Rules respondent No. 2 has reproduced it. 12, 15 and 16 as well as Rule 19 of the Bombay Conditions of Detention Order. Respondent No. 2 has also referred to Maharashtra Prison (Discipline) Rules, 1963, framed by the State of Maharashtra, in exercise of the powers conferred under Section 59 of the Prisons Act of 1894. These have been published in the Maharashtra Government Gazette, Part IVA, of August 29, 1968, and have come into force from September 1, 1963. Respondent No. 2 apparently relies on Sub-rule (4) of Rule 19 of the Rules framed under Section 59. According to respondent No. 2 a detenue has no right conferred on him under the Bombay Conditions of Detention Order in respect of receiving supply of books and other periodicals, nor is it a privilege. Respondent No. 2, therefore, disputes the right of the petitioners to challenge the regulation of supply of books by respondent No. 2. It is also contended that as Superintendent of the Prison respondent No. 2 in his discretion has refused to hand over all the books to the petitioners, that the petitioner is not entitled to receive any books as and when he demands or as and when they are received, and that it is within the absolute discretion of the Superintendent to regulate supply of books at any one point of time. In the return in reply to the petition filed by Shri Fernandes, there is no averment by respondent No. 2 justifying the restriction on the number of books to be supplied under Rule 12 of Bombay Conditions of Detention Order, 1951 : but in the return filed in reply to the rule nisi in the case of the petition filed by Shri Bardhan respondent No. 2 has averred as follows in para. 6 of his return:.I may further mention that under paragraph 12 of the Bombay Conditions of Detention Order, 1951, the Superintendent or Jailor or any other person directed by the Superintendent has to effect a search not only of the person of the security prisoner but also of all his effects which are with him, and, therefore, the Superintendent is justified in regulating the supply of books.

11. The question that has been canvassed before us on either side involves consideration of the rules known as Bombay Conditions of Detention Order, 1951, which have been adopted pro tanto as rules governing the conditions as to maintenance, discipline and punishment of offences for breach of discipline, governing detention under the Defence of India Rules. Both under the Defence of India Rule 30(4) and Section 4 of the Preventive Detention Act appropriate Government has been empowered to make rules as to conditions governing the maintenance, discipline, and punishment for offences of breach of discipline, governing persons ordered to be detained. These rules are statutory rules made in exercise of the powers under the statute and have the force of law. A bare perusal of the rules called 'The Bombay Conditions of Detention Order, 1951' shows elaborate provisions on several matters which must necessarily be considered in laying down the conditions under which a prisoner has to be detained. The detenus are classified into Class I and Class II. Rule 6 provides for accommodation of a detenu who is to be kept in a cell or an association ward. The detenus are to be allowed to communicate with each other subject to certain control by the Superintendent or the Commissioner. Then elaborate rules have been made as to clothing, etc. viz. a detenu may be allowed to use his own clothes and bedding etc. Where a detenu is not able to provide his own clothing, rules prescribe the number and the kind of clothes which have to he provided to the detenu, both male and female. Rule 9 prescribes the diet for both classes of detenus and additional diet that is to be given to class I security prisoners. Rule 10 prescribes the extent of funds which may be made available to the security prisoner from his private resources, both for class I and class II detenus. Rule 11 permits tasks being assigned to the security prisoners by the Superintendent or the Commissioner, as the case may be, but with due regard to their health, physical and mental capacity, for which they are to be paid remuneration for labour. Then follows Rule 12, which is in the following terms:

Security prisoners and the rooms, wards or cells in which they are accommodated shall be searched not less than once a week, but may be searched oftener or at any time if the Commissioner or the Superintendent considers it necessary, A security prisoner shall also be searched immediately after admission and thereafter before and after every interview with any person other than a police officer. Special precautions shall be taken to make the searches thorough and the fact that the search has been made shall be noted in the report book of the officer making the search. The search shall be made by a Jailor, Deputy Jailor, Jail Guard or such other officer as may be authorised in this behalf by the Commissioner or the Superintendent.

12. As regards interviews very elaborate provisions have been made in all the thirteen sub-clauses of Rule 13. Special provisions have been made in Rule 14 for police interview, photographs and finger prints. Then follow Rules 15 and 16 regarding supply of newspapers and books which are as follows:

15. Security prisoners may be allowed to read books and periodicals which are available in the library, if any, attached to the place of detention.

16. (i) Class I security prisoners may be allowed at Government expenses one weekly newspaper for every 20, and one daily newspaper for every 15 security prisoners, out of the list of newspapers considered suitable for convicts of class I and class II. Class II security prisoners may be allowed one such weekly newspaper for every 40, and one such daily newspaper for every 20 security prisoners. Both Class I and Class II security prisoners may be allowed, at their cost, any other weekly or daily newspapers included in the said list; provided that if any security prisoner wants any newspaper not included in the said list, he shall obtain the orders of Government through the Commissioner or the Superintendent, as the case may be.

(ii) Books (including periodicals not treated as newspapers) may be received by the security prisoners through the post subject to the condition that the postal article containing the books shall first be opened by the Commissioner or the Superintendent, as the case may be, or any person appointed by him in this behalf, and the delivery of such book to the security prisoner shall be refused by the Commissioner or the Superintendent, as the case may be, if in his opinion it is not suitable.

13. Rule 17 provides for correspondence and censorship of correspondence. A special Rule 17A seems to have been inserted to ensure as to communications to detenus from Members of Parliament or Legislatures of the States that these should be unfettered and unrestricted to a certain extent. Tinder Rule 18 the Commissioner or the Superintendent is entitled to forward without delay through the Inspector General of Prisons any representation which the security prisoner may make to the Government, and under Sub-clause (ii) of that rule all the petitions from security prisoners addressed to Courts are to be transmitted with the utmost expedition.

14. Rule 19 deals with the discipline and punishment for breaches of discipline and is in the following terms:

Security prisoners shall, for the purposes of discipline and punishment for breaches of discipline, be subject, as if they were convicted criminal prisoners, to the provisions of the Prisons Act, 1894 (Act IX of 1894), and the rules in the Bombay Jail Manual in so far as they are not inconsistent with these conditions or any special orders passed by a competent authority in this behalf.

15. Then rules as to medical attendance, furniture to be supplied, the toilet articles to which the detenu may be entitled, smoking and tobacco, facilities for games, lights for reading, laundry arrangements, locking arrangements, conveyance arrangements for class I and class II prisoners while going from one prison to another or on release are adequately provided for most of the matters required to be dealt with under these heads. Rule 30 requires all the particulars relating to security prisoners to be entered in a separate register with serial numbers, and returns and statistics have to be submitted on the lines of the Jail returns.

16. These provisions which have been noticed in some detail above would indicate one patent fact viz. that even in case of a person in whose case it has been found necessary for the Government or the prescribed authority to pass order of detention and place him in detention, the detenu has to be allowed several facilities for which detailed provisions have been made in the rules as indicated above. The contention of respondent No. 2 that what was being given to the detenu under the provisions of the Bombay Conditions of Detention Order is a concession and not as a matter of right cannot be accepted if it means that the privilege can be withdrawn or the detenu is to be denied the right except in accordance with the manner provided in the conditions themselves. It is undoubtedly true that under Rule 19 of these rules security prisoners are governed by the provisions of the Prisons Act, 1894, and the rules in the Bombay Jail Manual in the matter of discipline and punishment for breach of discipline. It is also true that under Section 45(7) of the Prisons Act, 1894, in addition to several prison offences enumerated in Clauses (2) to (16) of Section 45, rules may be made in exercise of the powers under Section 59 adding to the list of such prison offences. This power has been exercised by the State Government and by the notification issued by the Government on August 29, 1963, certain offences have been added to this list in Rule 19. Similarly, under Rule 13 a duty is cast on a prisoner to observe certain rules of conduct enumerated under several sub-clauses of Rule 13, and a note added under that clause shows that all privileges such as interviews, letters and facilities for reading shall be contingent on the good behaviour of the prisoner in the prison and the Superintendent may withdraw or postpone privileges of an individual prisoner for unsatisfactory conduct.

17. But, in our opinion, the right to withdraw a privilege or any of the privileges is not an arbitrary right, nor has the Superintendent an unrestricted power to curtail any of the privileges on the ground that thereby the Superintendent is regulating the privilege. We do not find any such general power of regulation of privileges in the sense of withdrawal, curtailment or abridgment of the privileges being given to the Superintendent except by way of punishment for a breach of duty imposed on detenu by the Rules. Therefore, where a complaint is made by a detenu whose conditions of detention are regulated by the Bombay Conditions of Detention Order, 1951, that complaint will have to be decided with reference to the provisions of the several clauses of the Bombay Conditions of Detention Order, 1951, and not by reference to any other implied power in the Superintendent which has not been shown to exist anywhere outside the provisions of the Bombay Conditions of Detention Order, 1951.

18. In these petitions we are principally concerned with the privilege of having his own books by a detenu. Specific provision has been made regarding books in Clause (ii) of Rule 16, and under that clause books including periodicals not treated as newspapers may be received by the security prisoner through post, subject to the conditions that the postal article containing the books shall first be opened by the Superintendent or any person appointed by him in this behalf, and the delivery of such books to the security prisoner shall be refused if in his opinion it is not 'suitable.' It has not been stated in the return, that in the case of either of these petitioners neither of them, was entitled to any books because the books were not received by post. We cannot, therefore, countenance any such suggestion because it is accepted on both sides that where books are being made available for use of the detenus, whether being delivered by relations or friends to the Superintendent for the benefit of the detenu or received through postal agency addressed to the detenu, the Superintendent has a right to decide whether a particular book is or is not 'suitable.' Thus on a fair reading of the clause it appears to us that the only ground on which a book may be withheld from a detenu is on the decision of the Superintendent that it is unsuitable. It is true that the discretion to decide the suitability of the book or publication is vested in the Superintendent. But as far as we can see, that discretion will have to operate within a well-defined field. The book may be unsuitable considering the material or the contents of the book which may be objectionable, because it preaches violence, it may be vulgar or obscene, it may be pornographic, or it may have been proscribed, but beyond the compass of this discretion we do not find any power in the Superintendent to withhold a book from the detenu on any other ground.

19. However, in the instant case it is seriously urged on behalf of respondent No. 2 that the power to restrict the number of books vests in respondent No. 2 not only under Sub-clause (ii) of Rule 16 of the Rules but because of the responsibility that is vested in respondent No. 2 under Rule 12 regarding searches.

20. We have quoted above the full text of Rule 12 and under that rule a Superintendent is required to search the rooms, wards or cells where a. security prisoner is lodged, at least once a week or oftener if ho thinks necessary. Respondent No. 2 is also empowered to search the prisoner and the cell after he is admitted and thereafter at such intervals as respondent No. 2 may consider necessary. The fact of such a search may also be communicated in a separate report book, but we do not see how this power of making a search either of the room or the ward or cell where the detenu is lodged, in any way implies the power not to release for the use of the detenu a book which is not unsuitable and yet which according to respondent No. 2 should not be made available because it exceeded a certain number. What has been done in the instant case by respondent No. 2 is that he has devised a rule that every detenu shall be entitled to get and have in his possession at any one time not more than ten non-religious and two religious books. Perhaps this must have been the decision of respondent No. 1 and not of respondent No. 2, as it appears from the correspondence. Be that as it may, the responsibility has been, taken by respondent No. 2 of communicating to the detenu that he shall not be allowed more than twelve books at a time. The question is whether there is any justification or legal basis for respondent No. 2 restricting the number of books in this manner. Several possibilities were canvassed before us as to restriction which would serve the alleged purpose of security or facility of search required to be made under Rule 12 by respondent No. 2. It is not the case of respondent No. 2 that the number of books to be made available is restricted by reference to their volume, weight, printed material or any other referable data. It is difficult to see why twelve heavy volumes are permissible to be made available either on one subject or on variety of subjects but not fifty thinly printed books which together may be less weighty than twelve volumes which might be permitted. One could have understood if the restriction would have been with respect to the contents or the material of the books, in which case the withholding of the books could be justified on the ground of suitability, but that is not the ground on which return justifies fixing the number of books to be made available to the detenu.

21. In this connection it is remarkable to note that Superintendents of other prisons such as Nasik Road Central Prison, Arthur Road Prison in Bombay, the Central Prison at Delhi, did not find any difficulty in allowing Mr. Fernandes to have all the books ho had with him other than those which they considered unsuitable, and we are told that the number was as large as 58 at a time. This fact was certainly within the knowledge of respondent No. 1, hut respondent No. 1 not having chosen to file any return, they have not denied this fact. We must, therefore, accept that whereas in other prisons their Superintendents did not find any difficulty in allowing a. detenu to have as many as 58 books for use at a time, respondent No. 2 finds some undisclosed difficulty in allowing books beyond twelve in number, and therefore he has chosen so to regulate the number of books which a detenu should have while under his custody. We have repeatedly asked the counsel for the respondents what possible justification could there be for this difference in treatment. Surely, it could not be said that conditions which have been statutorily fixed relating to facilities to security prisoners should vary from prison to prison or from prisoner to prisoner, according as the detenu happens to be under one Superintendent or another. That will only mean that the operation of this rule will depend on how the Superintendent could choose to regulate this privilege of the detenu under Clause 16 ((ii). We cannot possibly hold that there is any such right in respondent No. 2 to regulate the detenu's privilege under Clause 16 (ii) in the manner he has chosen to do.

22. If at all there is any difficulty about restricting the number of books on security grounds, nothing would have been easier than to make a provision for the same in Rule 12, but we are not at all satisfied that the requirement of Rule 12 or the responsibility of respondent No. 2 to comply, with Rule 12 had anything to do with the restriction on the number of books which he has placed in, the instant cases. There is no such restriction as far as we can see as to the number of clothes which the prisoner will have under Rule 8. Apparently, there is no such restriction as to the quantum of smoking, outfit or tobacco that a detenu may be supplied of course at his own cost; nor the number and kind of games which are permissible or the laundry arrangements. Thus, where provision has been made to make possible a normal living of a detenu while under detention without a violent break from the usual mode and standard of living to which he is used especially in these elementary matters, we fail to see any rational justification for restricting the number of books. Each of the petitioners has alleged that during the period of enforced idleness he has taken to study of topics of his liking and wants to prepare notes or to write articles. If a person is required to study any particular problem, surely it is difficult to predicate in advance what material he would need for references. It is quite true that even a student or a research worker does not use all the hooks simultaneously, but it is equally true that he must have facility of having reference to any book that he may need. By restricting the number of books which are available what is denied to the detenu is the facility of reference which can be justified only by pointing out to a specific rule and not by a specious claim of regularising of the privilege put forward by respondent No. 2. In our opinion, the power to regulate is restricted, as we have already observed, to determining the suitability of the books for which a certain amount of discretion is permitted. We do not see any power in respondent No. 2 otherwise to regulate or restrict or to put limit on the number of books that may be made available to a detenu. It is to be remembered that all the books are being supplied to the detenu either at his own cost or through his friends and relations. So the prison administration is not required to spend anything at all for the books. The only privilege that has been claimed and that is given under Rule 16(ii) is of having the books delivered to the detenu if they are lodged with the prison officials concerned either through post or, as in this case, brought by his friends.

23. In this connection we may notice that Rule 17A makes a special reference to detenus who are Members of Parliament or Legislatures of States. It is common knowledge that Members of Legislatures are bound to receive a variety of books, publications and reports from all sources, including the Government Printing Press and Director of Publications. It could hardly be contended that in case of even such detenus the Superintendent will be able to enforce his blanket order of restricting the supply of books to the number of twelve. It may also be noticed that under Rule 13(xi), detenus who are in business or profession have been granted a privilege of some special interviews. It is not difficult to imagine that businessmen who are in detention or professional men who are in detention may be required to make good use of their time by having recourse to a variety of books, the number of which cannot be possibly restricted. When the rules themselves anticipate and make provision for special facilities in cases where detenus are businessmen or candidates for election or professional men or members of Legislatures, it is difficult to hold that the rule regarding supply of books could imply a power in the Superintendent to restrict it by number irrespective of the merit of the book. In our opinion, there is no such power and the action of respondent No. 2 and respondent No. 1 if the former acted under the orders of respondent No, 1, is also in excess of the rules as they stand. We do not see any justification for withholding any book on the ground that it has exceeded a certain maximum number. We fail to see how the 13th book becomes unsuitable merely because it is the 13th book. Suitability has reference not to the number as contended by the learned Counsel for the respondents, but must be judged by the contents or the material or the topic of discussion in that book. As we have indicated, the suitability is with reference to the merit of the book and not because it adds to the number of the books already supplied to the prisoner.

24. The petitioners particularly drew our attention to two rules in the Bombay Jail Manual, namely, Rule 1357 and Rule 1360 regarding the use of the jail library. These rules are as follows:

1357. A convicted prisoner shall be permitted to have in his possession at a time not more than 2 religious books and ten non-religious books of his own. Provided that the non-religious books are not in the opinion of the Superintendent vulgar, obscene or of an objectionable nature or are not proscribed by Government. Those desiring to prosecute higher studies may possess any number of text books with the permission of the Superintendent. The prisoner may also have a book from the library of the Prison.

1360. An undertrial prisoner shall also be permitted to purchase at his own expense or to obtain from private sources as many books as he likes for his use : Pro vided that no such book is in the opinion of the Superintendent, vulgar, obscene or of an objectionable nature or is proscribed by Government.

A perusal of the above rules shows that even a convicted prisoner is permitted to have in his possession at a time not more than two religious and ten non-religious books, subject to the condition that non-religious books are not in the opinion of the Superintendent vulgar, obscene or of an objectionable nature or proscribed by Government. But that very rule permits a convicted person desiring to prosecute higher studies, to possess any number of text books with the permission of the Superintendent. As regards undertrial prisoners there is absolutely no restriction as to the number of books and an undertrial prisoner may be permitted to purchase books and have them in his possession. The only condition that could be imposed by the Superintendent is that the books should not be vulgar, obscene or of an objectionable nature or proscribed by Government. By reference to these rules the petitioners contend that they are in a position at the worst similar to that of undertrial prisoners and they cannot be equated to convicted prisoners at all. We find substantial force in this contention raised on behalf of the petitioners.

25. It must be remembered that the order of detention puts restriction on the liberty of the petitioners with regard to their movements and opportunity of contact with the outside world or even their relations, and for the purposes of securing the objectives of Rule 30 of the Defence of India Rules they have been detained in prison; but the petitioners have not been deprived of their other liberties such as liberty of thinking, or their food habits, or their right to take proper exercise to keep fit. We believe the right to inform themselves or to occupy themselves by an intellectual pursuit such as reading is also not fettered by the mere fact of detention under Rule 30 of the Defence of India Rules. The only limit that is put by Clause 16(ii) of the Bombay Conditions of Detention Order, 1951, is regarding the suitability of the books which, as far as we can see, must be judged by the Superintendent by reasonable exercise of his discretion in the matter; but beyond that neither of the respondents can predetermine by a blanket order the number of books irrespective of their kind or material and. restrict the petitioners in the matter of possession of books by mere reference to number. There is considerable force in the contention of the petitioners that during this period of enforced idleness the only manner in which they can profitably occupy themselves is by pursuit of study, knowledge and learning. For this purpose they need books on a large variety of subjects. The petitioners have also alleged that they are undertaking serious study of certain problems for which they need to collect statistical data and other information. We find it difficult, therefore, to hold that this facility which the petitioners demand under the rules can be reasonably denied to them by the respondents by recourse either to Clause 12 or to Clause 16 of the Bombay Conditions of Detention Order, 1951.

26. Of all the restraints on liberty of a civilised citizen, that on opportunity to knowledge, learning and pursuit of happiness is the most irksome and least to be justified. Improvement of mind, thought and knowledge is the eternal process and could not be reasonably thwarted but for exceptional and just circumstances. Power of detention cannot be equated to a power of regimentation of personal life, thoughts and habits. It would require very strong evidence of legislative mandate before any such claim can be countenanced in a prison official in this country. We are not at all satisfied that the Bombay Conditions of Detention Order, 1951, grants any such power to the respondents as is claimed in this case.

27. Even in prison there is a rule of law and the conduct and life of those in detention is governed by the rules. Both the prison official as well as the person under restraint are equally bound by those rules. The rules (in this case the Bombay Conditions of Detention Order, 1951) create rights as well as obligations for both. In our judgment, the petitioners had a right which was enforceable under Rule 16 of the Bombay Conditions of Detention Order 1951, and if there is violation of that right or privilege otherwise than permitted by the Order, they could come to this Court for relief.

28. It is well known that books of undoubted erudition and universal praise have been written in prison cells. We find it difficult, therefore, to uphold the right of the respondents to deny to the petitioners what, as far as one can see, has never been denied to anyone, provided the books are not objectionable on the ground of their preaching either philosophy of violence or being obscene or otherwise objectionable or containing proscribed material. What has impressed us most is the utter failure of the respondents to put forth any rational excuse in restricting the number of books to be supplied, to the figure 12. Respondent No. 2 does not say in his return that the privilege has been abused or that he had found it difficult to do his duty under Rule 12 regarding security by search of the person or the cell or prison because certain number of books may be in the possession of the prisoner. It would have been an entirely different matter if the respondents could satisfactorily establish that the privilege was abused in any way. So long as there is no such ground to complain, we cannot uphold the right claimed by the respondents to restrict the number of books to be supplied to a detenu under the Bombay Conditions of Detention Order, 1951.

29. Thus, on a consideration of all the aspects we have come to the conclusion that the order or action of respondent No. 2 in restricting the number of books to be supplied (except on the ground of their suitability) is not justified and cannot be upheld. We, therefore, direct the respondents not to withhold books which may be supplied to the petitioners except on the ground that a particular book is unsuitable within the meaning of Clause 16(ii) of the Bombay Conditions of Detention Order, 1951. Unless the Conditions of Detention Order itself restricts the number of books that may be made available to the security prisoner, it is not permissible for the Superintendent or respondent No. 1 to restrict their number except on the ground permissible under Clause 16(ii).

30. The result is that we allow the petition in each case and direct respondent No. 2 not to put any restriction on the number of books that may be supplied to each of the petitioners unless a particular book is determined to be unsuitable by the authority. Each of the petitioners will be entitled to costs of his petition.


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