1. Petitioner No 1 claims to be a personal friend and political colleague of the detenu, petitioner No 2. This petition under Article 226 of the Constitution was originally filed by petitioner No. 1. In the course of the hearing an application was made ,by petitioner No. 2 herself for leave to implead her as petitioner No 2. The said application has already been granted.
2. An order of detention was passed against petitioner No. 2 on 26th June, 1975. On the same date, another order was passed directing her to be detained as Class I Security Prisoner. This detention order has subsequently been reviewed and approved by the Government on 5-7-1975. Petitioner No. 2, however, was not actually arrested till 21st December, 1975. She was arrested in Bombay on that day. under the order of the Governor dated 22nd December, 1975. She was directed to be detained in Akola jail, Actually she was lodged in Akola Jail on 25-12-1975. It appears that petitioner No. 1 interviewed her on 5-1-1976. Petitioner No. 1 filed this petition on 7-1-1976 challenging, not the legality of the detention, but the choice of the jail in which the detenu is at present lodged. In this petition several circumstances are pleaded to show that her detention in Akola jail in the peculiar circumstances, is mala fide and virtually amounts to a punitive detention. Among other things, it is indicated that she was the only political detenu in that jail and that a leper and a lunatic were lodged therein just in front of her room and no facilities were available in the said jail for any woman prisoner, apart from several other inconveniences. She was virtually suffering solitary confinement in the absence of the company of other detenus or any political prisoner. It is prayed that the detenu be transferred to Yerawada Prison or Nasik jail, where several other detenus including women detenus are detained and where detenu's father and only daughter residing in Bombay can conveniently interview her in accordance with the Rules,
3. When this petition was placed for admission before a Division Bench of this Court, rule nisi was issued and made returnable on 14th January, 1976. It appears that the Government in the meanwhile transferred petitioner No. 2 from Akola jail to Dhulia jail. An affidavit is sworn by one Mokashi, Desk Officer, Home Department, on 13th January, 1976, affirming that she was so transferred from Akola to District Prison, Dhulia, under order dated 8-1-1976. It was suggested that the petition did not survive any more, allegation in regard to inconvenience in Akola prison having become entirely irrelevant.
4. When this matter again came up for hearing on 14th January, 1976, the case was adjourned at the request of petitioner No. 1, who wanted time to verify what the conditions in Dhulia prison were and what facilities were made available to her in that prison. Petitioner No. 1 then swore another affidavit on 19th January, 1976, indicating how the conditions in Dhulia Jail were, in no way better, and how she continued to be virtually under solitary confinement without any minimum facilities required for any woman prisoner. The order dated 8-1-1976 directing petitioner No. 2's detention at Dhulia also is challenged. One Anaokar, Desk Officer, Home Department, has sworn an affidavit on 25-2-1976 in reply to. the averments made in this affidavit dated 19th January, 1976.
5. Mr. Rane, the learned advocate appearing for the petitioners, contends that apart from the absence of essential elementary facilities in either of these two jails, these jails have been deliberately chosen by the Respondent to ensure that the detention operates as solitary confinement and thereby, as punishment for her political beliefs. He contends that the political detenus such as the petitioner No, 2, are governed by the Maintenance of Internal Security (Maharashtra Conditions of Detention) Order, 1971, hereinafter referred to as 'the Order', and the detaining authority is bound to ensure that at least the facilities under the Order are effectively made available to them. According to Mr. Rane, Dhulia prison is deliberately chosen to ensure that she does not get such facilities.
6. The learned Government Pleader's first contention is that the petition mainly having been directed against conditions in Akola Jail now does not survive, when she is removed from the said jail. It is difficult to accede to this contention. Firstly, though the inconveniences suffered at Akola Jail are made initially the basis of the application, the core of her grievance is that the detention in the circumstances obtaining in Akola Jail or even in Dhulia Jail operate as punitive. It is on this ground that, transfer of detenu to Poona or Nasik Jail is prayed in the petition. Transfer to Dhulia Jail does not make any difference to the substance of the case set up in the petition. It is now requested that the second order dated 8-1-1976 should also be quashed.
7. The learned Government Pleader, however, is right in contending that, choice of jail cannot be held to be vindictive on the facts placed before us. Now, though the respondents have not explained why choice for place of detention fell on Akola or Dhulia prison; from this alone no inference of any malice, actual or legal, can be drawn nor the detention can be held to be punitive merely because she is detained at Dhulia and not at Nasik or Poona. The act of detention itself is pregnant with innumerable inconveniences. The loss of freedom and certain attendant inconveniences are inevitable when a citizen is detained and the detention is not found to be illegal. No detenu can claim to be detained at a particular place. It is alleged that petitioner No. 2 was absconding for about five-six months. Though not specifically stated in the return affidavits, choice of the jails seems to have been dictated by the expediency cropped up after her sudden arrest after long abscondance. The respondents may not have enough time to make other necessary arrangements in these jails. The petition was filed before much time had passed. It appears that some of the inconveniences are removed a few days after her transfer to Dhulia Jail. On the facts on the record, we cannot hold the choice of the jail to be vindictive or as being made with any oblique motive. .
8. Even so, the order directing detention at Dhulia prison would be judicially reviewable under Article 226, if it is shown that detention in that jail is still operating as punitive. It is not merely a question of transferring a detenu from one prison to the other. That entirely is a matter for the decision of the detaining authority or the Government. No detenu can choose the place or the jail of his or her detention, nor any grievance can be made merely on the ground that the detenu is detained not in a particular jail, but in quite a different another jail. Choice as to the place of detention always must rest with the respondents as the decision depends on several administrative and security considerations. But where, as here, detention is claimed to be in fact operating as punishment, the court shall have to go into the allegations as in that case it would cease to be a preventive detention, authorised under the Act, i.e., MISA.
9. It is not disputed that in Dhulia prison, the petitioner No. 2 is not only the sole woman detenu, but is the only political detenu detained therein. She is thus left therein without anybody's company. Petitioner No. 2 claims to be a political worker of the Socialist Party. She was a member of the Municipal Corporation for several years, in addition to being now a sitting member of the Assembly. Her grievance that, the detention without the company of any other female or male political detenu, operates as punitive detention cannot be lightly brushed aside, as being baseless. One can imagine how difficult it is for any one to pass days and months without the company of the other to communicate, chit chat and unfold one's mind or play indoor games and spend time. It is not the respondent's case that she is the only detenu in the whole of the Maharashtra State. NO circumstances are indicated or suggested making it necessary to deny her the company of other political detenus. It is also not suggested that her detention at Dhulia alone is indispensable due to any reasons of security or otherwise. In the absence of any reasonable explanation for her such separation from others and exclusive detention, present detention at Dhulia shall have to be held as punitive, if not vindictive. In effect, it amounts to solitary confinement, though strictly. It may not be so. It should not be difficult to see how miserable and oppressive such solitary life would prove to be without any one to talk on any subject of common concern or interest. The object of the detention is to ensure that the detenu is prevented from indulging in objectionable activities. Restrictions on the citizens even so detained, are required to be as minimal as possible and should not exceed requirements of the situation. In the absence of any clarification, it is not possible to know how denial of the company of the other available political detenus is indispensable or even relevant for her required detention. It is not even advisable ordinarily to leave any woman detenu without the company of other female detenus. That such lonely detention must be proving to be oppressive and punitive goes without saying,
10. It is true that one assistant is provided to her for help. Mr. Gumaste, the learned Government Pleader, also offered that she would be allowed to mix with other under-trial female prisoners or convicts. We do not think that the company of such persons can have any comparison to the company of the political detenus. Ordinarily one can enjoy the company only of persons of the same intellectual, social and cultural level.
11. The learned Government Pleader contended that such detention without the company of other political detenus can never amount to solitary confinement. He drew our attention to Section 73 of the Indian Penal Code in which solitary confinement is denned. Now, under the I.P.C. 'solitary confinement' means confinement in a room where the prisoner is not even permitted to have a sight of the other human-beings. It is true that detention of petitioner No. 2 in the circumstances in which admittedly she is detained may not amount to solitary confinement within the meaning of Section 73 of the I. P. C, Mr. Rane, on the other hand, drew our attention to Rules 5, 20 and 21 of the Maharashtra Prisons (Punishments) Rules, 1963. Rule 5 enables the jailor to inflict minor punishments, including separate confinement for not more than fourteen days and cellular confinement for not more than seven days. Rule 20 indicates what the separate confinement implies. A prisoner in separate confinement shall not be out of sight of other prisoners. He shall be allowed to have one hour's exercise per diem and to have his meals in association with one or more other prisoners. Cellular confinement under Rule 21 entirely secludes a prisoner from having communication with other prisoners, though he is not to be kept out of sight of other prisoners. Mr. Rane contends that on the facts admitted, the detenu's position is no way better than that of a prisoner who is sentenced to separate confinement. We find much substance in this contention. Even if the detenu is given the company of some under-trial prisoners or convicts, it is difficult to see of what advantage the company of these persons will be to the detenu who at best may be able to look at them or have their association at the time of taking meals, intellectual and cultural gap in between the two being unsurmountable.
12. It is worthwhile in this context to examine the provisions of the Maintenance of Internal Security (Maharashtra Conditions of Detention) Order, 1971, referred to hereinafter as 'the Order'. Clause 7 of the Order requires the detenu to be kept in 'a cell or association ward'. The learned Government Pleader conceded that the word 'cell' is not intended to convey the detention of a detenu alone in any particular room. 'Association ward', according to the learned Government Pleader, happens to be a ward where a number of persons are accommodated as against a 'cell' where only a few are accommodated. Thus even this clause contemplates keeping a security prisoner in the company of some other persons. Clause 8 enables such security prisoners to communicate with each ether, unless the Commissioner or the Superintendent feels it necessary on the ground of health to confine such security prisoner separately. Latter half part of Rule 8 requires the Superintendent to keep separate, as far as possible, the security prisoner from other kinds of prisoners. Rule 28 also enables the detenu to play indoor games. One way of not complying with this rule and defeating the object of the framers of the rule can be by detaining a particular detenu alone in a particular jail, where no other detenu would be available for playing such indoor games, as contemplated under Rule 28 or 29 of the Rules. It is thus clear that the rule-making authorities did contemplate that (a) more than one security prisoner should be kept together, (b) that they should be enabled to communicate and play indoor games with each other, and (c) as far as possible, they should not be required to remain in the company of other kinds of persons. It is true, as contended by the learned Government Pleader, that a detenu cannot insist that some other person should be detained merely to enable him to have the company. In a case where one or two persons alone are detained or in a case where more persons than one are detained but their separate detention is indispensable, the question of any detenus claiming to be kept along with other detenus may not arise. It is, however, not the case of the respondent that the petitioner is the sole political detenu in the whole of Maharashtra. In such case, an obligation of the administration can easily be inferred from this rule to keep more such security prisoners together as far as possible, if more are so in fact under detention. Not only that this is contemplated by the rule-making authority, but this obligation also must flow from the duty of the detaining authority to ensure that more restrictions, discomfort and inconveniences are not inflicted on the detenus than are necessary for the objects of detention. In the absence of any explanation, detention of detenu-petitioner No. 2 without the company of woman political detenu or even of the other political detenus cannot but be held to be operating as punishment in the facts and circumstances of this case.
13. Mr. Rane contends that under Clause 14 of the Order, the closest relatives of the detenu are enabled to interview the detenu from time to time. The detenu should be detained in a jail, according to Mr. Rane, to which the father and the daughter of the detenu can easily visit. Mr. Rane contends that the detention of a detenu at a place to which the persons intending to have interview may not be able to go, may even defeat the very purpose of this rule. We do not propose to express any opinion on this question at this stage. We trust, the Government will take this also into account while determining the place of detention.
14. We accordingly allow this petition and set aside the order of the Government dated 8th January, 1976, as far as the place of detention is concerned. The respondent will detain the detenu in such prison where the detenu will have the benefit of the company of other women detenus and other facilities under the Rules.
15. Rule accordingly made absolute.
16. Mr. Kotwal, the learned Public Prosecutor, applies for leave to appeal to the Supreme Court under Article 134 of the Constitution.
17. Leave refused.
18. Mr. Kotwal, the learned Public Prosecutor, requests that the operation of the order be stayed for eight days. Operation of the order is stayed for eight days on the condition that the detenu is kept in Bombay Central Prison till then.