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P.N. Lekhi Etc. Vs. Administrator, Union Territory of Delhi Etc. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal Nos. 229 of 1975 and 25, 99 and 123 of 1976
Judge
Reported in1977CriLJ906; ILR1977Delhi6
ActsMaintenance of Internal Security Act, 1971 - Sections 5; Constitution of India - Article 19
AppellantP.N. Lekhi Etc.
RespondentAdministrator, Union Territory of Delhi Etc.
Advocates: D. Latifi,; Mohd.Muslim,; V.P. Raman,;
Cases ReferredJabalpur v. Shiv KantShukla
Excerpt:
the case involved a petition filed under article 226 of the constitution by a person detained under maintenance of internal security act, 1971-in the said petition, complaint about the conditions of jail, payment of maintenance, difficulties to family members in seeking interview with him, were made - it was noticed that grievances were in respect of the personal liberty - in view of the suspension of articles 19, 21 and 22 of the constitution of india, it was ruled that the petitioner had no locus standi - accordingly, the petition was dismissed in liming - - lekhi, who is detained under section 3 of the maintenance of internal security act, 1971 (herein called 'the act'), mainly, is that the administrator of union territory of delhihas failed to perform the statutory duty imposed upon.....prithvi raj, j. (1) since common questions of law are involvedin these petitions it would be proper to dispose them of by a singlejudgment. (2) the case of shri p. n. lekhi, who is detained under section 3 of the maintenance of internal security act, 1971 (herein called 'the act'), mainly, is that the administrator of union territory of delhihas failed to perform the statutory duty imposed upon him by section 5 of the act in that no general or special order specifying conditions,including conditions as to the maintenance, discipline and punishmentfor breaches of discipline had been made by him; that in the absenceof any such order the respondents have no power to keep the petitioner in detention and impose conditions upon him as set out inparagraphs 4 to 7 of the petition. further,.....
Judgment:

Prithvi Raj, J.

(1) Since common questions of law are involvedin these petitions it would be proper to dispose them of by a singlejudgment.

(2) The case of Shri P. N. Lekhi, who is detained under section 3 of the Maintenance of Internal Security Act, 1971 (herein called 'the Act'), mainly, is that the Administrator of Union Territory of Delhihas failed to perform the statutory duty imposed upon him by section 5 of the Act in that no general or special order specifying conditions,including conditions as to the maintenance, discipline and punishmentfor breaches of discipline had been made by him; that in the absenceof any such order the respondents have no power to keep the petitioner in detention and impose conditions upon him as set out inparagraphs 4 to 7 of the petition. Further, section 5 of the Act imposes a duty on the appropriate Government to provide by generalor special order maintenance to the detenu to ensure that his familydoes not starve and rendered impecunous. Accordingly, a declarationis sought to the effect that the Administrator of the Union Territoryof Delhi is under a statutory duty to make general/special order under section 5 of the Act; that in not making a general/special order theAdministrator of Union Territory of Delhi has failed to perform hisduty enjoined by law and further an order, direction or writ in thenature of mandamus is sought against the said Administrator directinghim to make special or general order in terms of section 5 of theAct. A similar declaration against the Superintendent, Central Jail,Tihar, is sought to the effect that he has acted illegally in failing toprovide maintenance to the petitioner according to law and thatpetitioner's continued detention is illegal and unwarranted. An order,direction or writ in the nature of mandamus is also sought againstthe respondents directing them to provide the petitioner with maintenance commensurate with his status and standard of living and alsofor his family members, dependent upon him.

(3) MOHD. Muslim, petitioner in Cr. W. No. 229 of 1975 is detainedunder the Act since 26/06/1975, and is in detention in CentralJail, Ambala. According to the petitioner he was employed as theEditor of the Urdu daily Dawat, Delhi, and was getting a salary ofRs. 500 per month with other facilities of house rent etc.; that because of his detention he is not getting anything from his employers;that he has no other source of income whatsoever of any kind to meetthe bare minimum living expenses of his family as a result whereof hisfamily is under great hardship occasioned by his forced detention.He accordingly prays that the respondents be directed to pay to the petitioner his salary and other allowances while he is in detention;that the respondents be directed to make good the loss suffered byhim so far by his detention and that the respondents be directedto produce the rules, if any, framed under the Act and if the saidrules provide for less ex gratia amount than the petitioner's salary withallowances, then the same be declared as ultra vires.

(4) A. C. Shubh petitioner in Cr. W. No. 123 of 1976 is detained under section 3 of the Act issued by the Additional District Magisrate (East), Delhi, and is at present in detention in Central JailTihar. His case is that the respondents are liable to maintain himunder section 5 of the. Act including the dependant members of hisfamily, in the absence of which the detention of the petitioner shallbecome punitive. The petitioner further contends that the prohibitionimposed upon him by the Superintendent of Central Jail, Tihar, notto move out of the ward in which the petitioner is detained, and denying communication with other co-prisoners is in excess of his powersand is punitive amounting to denial of right of movement to him. IT is further contended that the Administrator was required to framerules under section 5 of the Act to provide maintenance to the detenusand their families and his failure to do so amounts to denying/delayingmaintenance to the petitioner and the members of his family. the petitioner accordingly prays that an appropriate writ, order or directionmay be issued to the respondents to sanction adequate and appropriateamount of compensation not less than Rs. 1200 per month, besidesproviding for his maintenance in jail during his detention and to framerules to implement the duty to maintain the detenu including dependent-members of his family.

(5) Kidar Nath Sachdeva petitioner in criminal writ No. 99 of 1976was detained on 26/06/1975, under the Act and is at presentlodged in Central Jain, Ambala. His grievance is that the respondentsare allowing him to spend only Rs. 20 per month but keeping in viewthe rising prices it is not possible for the petitioner to even buy foodat his own expense to supplement the food given by the jail authoritieswhich he alleges is of very poor quality. He further contends that hiswife and children have to come from Delhi to Ambala for weeklyinterviews with him on which heavy expenditure is incurred ; that the petitioner's wife has to spend many hours for getting permission forA weekly interviews and that a lot of money is spent in the journey. Allthese instructions, the petitioner contends, has resulted in convertingthe preventive detention into punitive detention. The petitioner accordingly prays that the respondents be directed to allow the petitionerapplicant to spend Rs. 200 per month during his detention ; to transfer the petitioner to Delhi Central Jail or to make transport arrangement for the petitioner's family members and relatives every week forinterview with the petitioner; to allow the petitioner to move aboutwithin the jail premises for a stroll daily for a specified period ; to givethe petitioner proper medical facilities of his choice; to direct therespondents to fix the duration of interviews of at least two hourswithout the presence of C.I.D. persons and to make liberal arrangements for interview so that petitioner's relatives may be allowed immediate interviews without waiting long.

(6) The respondents in their reply to the writ petition No. 25 of1976 contend that there is no obligation on the part of the appropriateGovernment to provide for maintenance allowance to, or otherwiselook after, the dependents of the detenus detained under the Act;that the Administrator has not failed to perform the statutory dutyimposed upon him under section 5 of the Act in that the Administrator of the Union Territory of Delhi has issued notification No. F. 5(42)/74-C/HG, dated 8/05/1974; that the said notification isgeneral one specifying conditions including conditions of maintenance,discipline and punishment for breaches of discipline etc.; that byvirtue of the above-said notification persons detained under the Actare treated as under-trial prisoners for the purposes of providing maintenance etc. It is further submitted that the obligation under the Actis only to provide for the maintenance of a person detained under theAct and not any one else. The respondents also contend that the petitioners have no locus standi to move the petitions nor have they anylegal right to approach this Court in its extra ordinary jurisdiction forthe relief sought in the petition.

(7) In reply to the writ petition filed by Mohd. Muslim it is averredthat the Delhi Administration is actively considering the question ofgrant of subsisting allowance to the detenus under the Act and assoon as the payment of such allowance is provided for the detenusunder the Act, the petitioner would be given benefit thereof.

(8) It may bear mention here that no reply was filed on behalfof the respondents in the criminal writs filed by Shri A. C. Shubh andShri K. N. Sachdeva. The said petitions were argued on the basis of thereplies filed by the respondents in the two writ petitions filed byShri P. N. Lekhi and Shri Mohd. Muslim.

(9) Shri Daniel Latifi, Senior Advocate, appeared and argued THE petition on behalf of Mohd. Muslim while Sarvashri P. N. Lekhi andA. C. Shubh petitioners addressed arguments in person. Shri K. N.Sachdeva petitioner adopted the arguments advanced by Shri P. N.Lekhi petitioner in petition, Cr. W. No. 25 of 1976.

(10) Relevant provision of section 5 of the Act which falls forconsideration in these petitions is as follows:-

'EVERYperson in respect of whom a detention order has been made shall be liable :-(a) to be detained in such place and under such conditions,including conditions as to maintenance, discipline andpunishment for breaches of discipline, as the appropriate Government may, by general or special order.specify;

(11) The petitioners' case as urged is as follows : That a persual ofsection 5 of the Act unmistakably reveals that the liability of a detenu to be detained casts a corresponding duty on the appropriate Government to provide for the maintenance of the detenu and the membersof his family-dependent on him because of his forced detention, thedependent members of his family are deprived of their maintenance.In other words, the power of the appropriate government to detaina person is coupled with the duty cast on it to provide maintenance forthe detenu and the members of the family dependent on him Accordingly under clause (a) of section 5 the appropriate Government isunder an obligation to frame rules providing for the maintenance of thedetenu and members of his family dependent on him. For want of suchan order, the detention is untenable and becomes illegal.

(12) Further it was argued that from a combined reading of sections 3, 5 and 6, it becomes abundantly clear that section 6 is a keyto the operation of sections 3 and 5. Section 6 does not envisage thatdetention would be invalid if no maintenance was provided. The detention is by way of preventive measure and not intended to be punitivein its nature. A detenu has to be kept in a reasonable state of comfortaccording to his status in life, commensurate with his earnings. It wasurged, the authority of Sampat v. State, : 1969CriLJ1555 , adetenu is not a convict, the power to detain is not a power to punish.The power to detain is primarily intended to be exercised in cases whenthe larger interest of the State demand that restrictions shall be placedupon the liberty of a citizen curbing his future activities. The restrictions so placed, must be minimal.14 HCD/76-2

(13) The failure of the appropriate Government it was also urged innot framing rules providing for the maintenance of a detenu and thedependent members of his family, ignores the mandate contained insection 5 of the Act making the detention punitive. That being so adetenu is under no liability to be detained because of the dismalfailure of the appropriate Government to frame rules. That no rulesin this respect exist is borne out from the admission of Shri Arjan DassSapra, Deputy Secretary (Home), Delhi Administration, in his replyaffidavit in Criminal Writ No. 229 of 1975, that 'the Delhi Administration is considering the question of permitting the grant of subsistenceallowance to the detenus detained under the MISA' and that the ruleshave not yet been framed and published.

(14) The notification No. F. 5(42)/74-C/HG dated 8/05/1974.relied upon by the respondents it was submitted falls short of what isrequired to be provided by way of maintenance of a detenu apart from the fact that it is totally silent in respect of the maintenance of thedependent members of the detenu. The said notification seeks to deprivea detenu of the ordinary amenities of life and thus assume punitivenature. The conditions of detention of a person preventively detainedare not privileges conferred on the detenu but are conditions subject towhich alone his liberty could be restricted.

(15) 'MAINTENANCE', goes the argument, cannot be mere food, raimentand shelter but has to be real maintenance, not a bare or starvingmaintenance. Not allowing real maintenance in consonancewith the minimal standard of decent living in a civilizedsociety would in effect amount to forcing a detenu to livein sub-standard conditions which is not the object sought to be attainedby the Act. Preventive detention is qualitatively different from the punitive, detention, unless there was a specific provision in the law underwhich a person was detained imposing a particular restriction on adetenu from doing what any member of the public can do. Further,that the word 'maintenance' in its true connotation means providingof family allowance, also was borne out on two grounds, viz., (i) logical and functional interpretation of the said term and (ii) on its truelegal interpretation.

(16) A detenu being under a legal duty to maintain his wife anddependent members of his family because of his detention is deprivedfrom discharging his duty of maintaining his family. It is, thereforee, incumbent on the appropriate Government to provide maintenance to themembers of the detenus' family. Such an obligation, it was submitted,is a natural consequence of the detention order and would be in consonance with the provisions of the Act.

(17) It was then submitted that the Parliament was fully aware ofthe 'functional' use of the expression ''Maintenance' as understoodin law, the use of the said expression in the Act was intentional and incontradiction to the word ''maintain'. Accordingly restricted meaningcould not be attributed to the term ''maintenance' in merely providing' food, raiment and shelter for the person of the detenu.

(18) The expression 'maintenance' had been interpreted by theCourts in this country in a series of cases, and the Parliament, it wasurged, in intentionally using the said expression in the Act it may bepresumed that the Parliament intended to attach the same meaning tothe expression 'maintenance' as given by the courts, the ratio of therule of interpretation being that the words of legal import occurring IN a statute should be construed in their legal sense in that those wordshave, in law acquired a definite and precise sense. Accordingly, it wassubmitted. Parliament in using the expression 'maintenance' in theAct must be taken to have intended that the said expression be understood in the sense the said expression was interpreted by the Courts.In other words, it was contended, the Parliament in using the expression 'maintenance' in section 5 of the Act accepted the meaning givento the said expression by the courts to it. This argument was sougth tobe reinforced from the decision of the Supreme Court in case I. P.Vajravelu Mudaliar and- (2) Most Rev. Dr. L. Malthias v. The SpecialDeputy Collector for Land Acquisition West Madras and anotilci'. reported as : [1965]1SCR614 , and case State of Madras v.GanonDunkerlv and Co. (Madras) Ltd. : [1959]1SCR379 .

(19) The above-cited cases have no bearing on the question underconsideration and were decided on their own facts. The Supreme Courtin I. P. Vairavelu Mudaliar's case (supra), was considering the question of constitutional validity of the Land Acquisition (Madras .Amendment) Act, 1961. In the course of arguments the expression 'compensation' used in Article 31(2) fell for consideration. The amended Article 31(2) by virtue of the Fourth Amendment Act, 1955, envisagedthat no property shall be compulsorily acquired or requisitioned savefor a public purpose and save by authority of law which provides forcompensation for the property so acquired or requisitioned and etherfixes the amount of compensation or specifies the principles on whichand the manner in which, the compensation is to be determined andgiven and no such law shall be called in question in any Court onthe ground that the compensation provided by law is not adequtate.It was in that context that it was observed at page 1023 that it may-

'BE taken as set.led law that under Article 31(2) of the Constitution before the Constitution (Fourth Amendment)Act, 1955, a person whose land was acquired was entitledto compensation, i.e., a 'just equivalent' of the land ofwhich he was deprived'.

and that scrutiny of the amended article disclosed that the ParliamentB in using the same expression as were found in Article 31 before theamendment is a clear indication that it accepted the meaning of theexpression 'compensation' as given by the Court to that expression.

(20) In Ganon Dunkerley's case (supra), the question involved waswhether the respondents were liable to pay sales-tax on the value of thematerials used by them in the execution of their work contracts as alsoon the price of the foodgrains supplied by them to their workmenengaged in the construction work. The Court in that case was calledupon 'to interpret the words 'sale of goods' used in Entry 48 List IISchedule VII. The Court taking note of the fact that both underthe common law and statute law relating to sale of goods in Englandand India to constitute a transaction of sale there should be an agreement express or implied relating to goods to be completed by passingof title in those goods, held that in a building contract it was impossibleto maintain that there is a sale of materials as understood in law becausein such an agreement there was neither a contract to sell the materialsused in the. construction nor did the property pass therein as moveables.It was in that view of the matter that it was held that 'in interpretingan expression used in a legal sense', the Court has 'only toascertain the precise connotation which it possesses inlaw'. Accordingly, the Court observed 'The ratio of the rule of interpretation that words of legal import occurring in a statute should beconstrued in their legal sense is that those words have, in law, acquireda definite and precise sense, and that, accordingly the legislature mustbe taken to have intended that they should be understood in thatsense'.

(21) The cardinal rule of interpretation is that 'words should be readin their ordinary, natural and grammatical meaning'. Can it, thereforee,be said that the wording of section 5(1) of the Act necessarily positthat the true interpretation to be put on the word 'maintenance iswhat it means in other Acts. It cannot be so taking in consideration theobject and scope of the Act.

(22) A person on detention loses his freedom and being no longera free man he has to live in detention on conditions as are prescribed.A persual of the impugned order issued in pursuance of section 5(1) (a)of the Act without doubt shows that the matter regarding specjfying'such conditions' by special or general order for the detention of adetenu seems to be one in the discretionery pass or of the appropriateGovernment. A detenu is entitled to such amenities only which theapproriate government may be a special or general order prescribe inpursuance of section 5 (1) (a). We are, thereforee, unable to persuadeourselves to agree with the petitioners' submission, that every democratic country is expected to give a citizen rest, physical happiness, peace ofmind and security and that these elementary comforts can be ensuredto a detenu only if apart from providing food, raiment and shelter,other amenities of life are also provided, as was sought to be urged onthe basis of the observations made by Suba Rao, J. in Kharag Singh v.The State of U.P., : 1963CriLJ329 . The said observationswere made in a wholly different context. All that section 5(1) of theAct requires is that the appropriate Government may, by general orspecial order, specify such conditions, including conditions as tomaintenance, discipline and punishment for breaches of discipline,under which a person in respect of whom a detention order has beenmade shall be liable to be detained in such place as may be specified inthe general or special order . It is entirely within the province of theappropriate government to specify the place in which and the conditions under which a person in respect of whom a detention order hasbeen made is to be detained. Beyond that no obligation is case on theappropriate government and the conditions so specified by it are notopen to challenge.

(23) Notification No. F.5(42)/74-C/HG, dated 8-5-74 fulfillsthe requirement law as envisaged by section 5(1) of the Act and noexception can be taken to it. That being so, the submissions of the petitioners that maintenance means real maintenance that is the minimal in a civilized society and not a bare or starving maintenance sothat a person is not forced to lead a substandard life, and that themaintenance must vary according to the position and status of a person, including expenses for all conveniences, the amount, however,depending upon the gathering together of all facts of the situation,which submissions were made on the authority of Fakir Mohanimadv. Mt. Abda Khatoon, : AIR1952All127 ; Kiran Bala Sahav. Bankim Chandra Saha, : AIR1967Cal603 ; Her HighnessMaharani Kesarkunverba Saheb of Morvi v. Commissioner of Incometax, Bombay North, Kutch and Saurashtra : [1960]39ITR283(SC) :and Smt. Lecia Devi Srivastava v. Manohar Lal Srivastava, : AIR1959MP349 , have to be rejected. The above cited casesdealt with entirely different position than the one under considerationin the instant petitions.

(24) In Fakir Mohammad's case (supra) the question for consideration before the D.B. was whether the maintenance and supportof the Wakif and the members of his family or his descendants wasvalid charitable object. In that context it was observed that the wordmaintenance' is generally intended to mean lodging, boarding, clothing and other such necessaries of life and that the said expression stoodamplified by the word 'support' finding expression in the Wakif deedand might include expenses not only for the necessaries of life butalso for all conveniences. In Krishna Bala Saha case (supra) the Courton the application of the wife for maintenance against the respondent.her husband, while, considering the scope and ambit of the HinduAdoptions and Maintenance Act (78 of 1956) observed that what thestatute prescribed was the minimal maintenance in a civilized societyand not a bare or starving maintenance. In her Highness MaharaniKesarkumverba Saheb of Morvi's case (supra) the question underconsideration was the deduction allowable under the Income-tax Actin respect of the maintenance allowance received by her. In thatcontext it was held that maintenance does not mean food and raiment.and that it must vary according to the position and status of a person.In Smt. Leela Devi Srivastava's case (supra) in fixing the quantum ofmaintenance for the applicant-wife the Court observed that 'the amount of maintenance is a question of fact and it depends upon the gatheringtogether of all facts of the situation'.

(25) From a resume of the cases, noted above, it is evident that.the object and scope of the two laws, i.e., the Act under considerationby us and the acts considered in the cases discussed above are different.It is well-settled principle of law that in interpreting a statute thequestion for consideration is not what may be supposed to have beenintended but what has been said in the statute. (Sec, Henretta MuirEdwards and others v. Attorny General of Canada . Furcher, unless there is any ambuiguity in a statute it is no;open to the Court to depart from the normal rule of the constructionwhich is that the intention of the legislature is primarily gathered from the words used in the statute. (Scc, Commissioner of Income-tax ofMadhya Pradesh and Bhopal v. Sodhra Devi, : [1957]32ITR615(SC) ).

(26) In view of the well-settled position of law regarding intcrpretation of statutes it is futile for the petitioners to contend that theexpression 'maintenance' used in section 5(1) of the Act be construed in the manner the said expression is used and intended in actsproviding for maintenance of a spouse and dependent-children. the petitioners, thereforee, cannot make a grievance that the said order shouldbe read liberally to grant something more than what is warranted byit on the analogy that while allowing maintenance to a spouse or dependent children the expression 'maintenance' had been given a differentconnotation. In this view of the matter case, Lenon v. Gibson andHowes Ltd., Air 1919 P.C. 142, strongly relied upon bythe petitioners, wherein it was observed that in theabsence of any context indicating contrary intention it may be presumed that the legislature intended to attach the same meaning to thesame words when used in a subsequent statute in a similar connection.is of no assistances to the petitioners.

(27) The Parliament having clearly expressed its intention in section 5(1) of the Act it cannot be said that the expression 'maintenance'was used in similar connection providing for maintenance of spouseor dependent children.The notificalion dated 8/05/1974, specifying the conditionsunder which a detenue against whom a declaration has been made isto be detained in our opinion constitutes a self-contained provisionprescribing the conditions of detention, maintenance discipline etc.

(28) It was then contended that because of his detention a detenuis deprived of pursuing his normal vocation and is thus prevented fromsupporting his family, detention, thereforee, would assume punitivenature, it being not the objective of the Act to starve the family of thedetenu.The inability of a detenu to pursue his normal vocation is a necessaryconsequence of his detention, no grievance can be made on that count.In not providing for the maintenance of the family of a detenu, thedetention would not become punitive, it being within the discretion ofthe appropriate government to specify in a general or special ordersuch conditions under which the detenu may be detained. Much capital was sought to be made from the rules framed under the Act by theHaryana Government providing for the maintenance allowance to thefamily of a detenu to contend that such an obligation was enjoined onthe appropriate Government. We do not agree. In terms, section 5(1)of the Act does not so provide. Making provisions for the family ofthe detenu is solely the discretion of the appropriate government. 'Asa matter of fact, this aspect is already under consideration of the DelhiAdministration as averred by Shri Arjan Das Sapra, Deputy Secretary(Home) in his reply-affidavit filed in Cr. Writ No. 229 of 1975. Onthe state of law no relief can be given in this respect in the exerciseof the writ jurisdiction of this Court.

(29) The third contention urged was that the petitioners had beenequated with undertrial prisoners in that provisions of the jail manualapplicable to undertrial prisoners have been made applicable to them.A This grisvance is wholly without substance. It was within the competence of the Administrator, Union Territory of Delhi to bodily liftsome of the provisions of the jail manual and incorporate them inthe general order dated 8/05/1974, making it a comprehensiveone, but instead of so doing he chose to state that every person in respect of whom a detention order has been made under the Actshall be governed by the same conditions as to maintenance, disciplineand punishment for breach of discipline as are applicable to undertrial prisoners in police lock-ups, judicial lock-ups or central jail,Tihar, as the case may be but by no stretch of imagination it canbe said that the detenus have been equated with undertrial prisoners.

(30) Lengthy arguments were addressed on the various provisions of the jail manual to contend that great difficulty would be encounteredin applying its provisions to the detenus. We find no substance in thiscontention. As and when the Administrator is faced with such a situation it is within his province to issue a special order as envisaged bysection 5(1) of the Act.

(31) Equally devoid of merit is the fourth contention, namely,that it was incumbent upon the Administrator Union Territory ofDelhi, to frame rules providing for conditions under which a detenuis to be detained, for want of which detention order cannot be heldto be valid. All that section 5(1) of the Act enjoins is that theappropriate government may by general or special order specify suchplace and conditions under which a detenu is to be detained. Thisrequirement of law the Administrator has already complied with inissuing a general order dated 8/05/1974, which, in our opinion,is valid and beyond challenge.

(32) This brings us to the special grievances made by two of the detenus, namely, Sarvshri A. C. Shubh and Kedar Nath Scchdev.According to Shri Shubh (petitioner in Cr.W-123 of 1976) prohibition imposed on him by the Superintendent of Jail not to move outof the ward in which he is detained, denying communication withother co-prisoners was punitive amounting to denial of his right ofmovement. Shri Shubh, however, did not press prayer No. 4 andsought permission to withdraw prayer No. 2 in prayers clause. Weare accordingly not dealing with them. Shri Kedar Nath Sachdev(petitioner in Cr.W.No.99 of 1976) has contended that he is allowed .to spend only Rs. 20.00 per month but keeping in view the risingprices it is not possible for him to even buy food at his own expenseto supplement the food given by the jail authorities which he allegesis of very poor quality. He further avers that his wife and childrenhave to come from Delhi to Ambala for weekly interviews with himon which heavy expenditure is incurred besides they have to spendA many hours for getting permission for weekly interviews. All this hasresulted in converting the preventive detention into punitive detention.He accordingly prays, as noted in an earlier part of this order, thathe be allowed to spend Rs. 200 per month during his detention; totransfer him to Delhi Central Jail or to make transport arrangementfor his family members and relatives every week for interview with him; to allow him to move out within jail premises for a stroll dailyfor a specified period; to give him proper medical facilities of hischoice; to direct the respondents to fix the duration of interviews ofatleast two hours without the presence of C.I.D. persons and to makeliberal arrangements for interviews so that his relatives may be allowedimmediate interviews without delay.

(33) The grievances noted above partake the facet of personalliberty. In seeking a declaration for regulating the conditions of theirdetention the petitioners are in fact trying to enforce a facet of theirpersonal liberty to which they have no locus standi. This aspect ofthe matter was put to the petitioners but they parried i:.

(34) It would be relevant here to consider case, A. K. Gopalan v.The State of Madras, : 1950CriLJ1383 . Therein it was urgedthat because of the detention of the petitioner in a cell, his rightsspecified in Article 19(1)(a) to (e) and (g) were abridged. Dealingwith the contention Kania, C.J., observed (at page 35) that The argument, if correct, should be applicable in the case of punitivedetention also to any one sentenced to a term of imprisonment underthe relevant section of the Indian Penal Code. So considered, The argument, it was observed must clearly be rejected and that such construction should be avoided.Das J. (as the Lordship then was) refuted the argument as under' (at page 113):-

'THERE can be no doubt that a detention as a result of lawfulconviction must necessarily impair the fundamental personal rights guaranteed by Art. 19(1) far beyond what ispermissible under CIs. (2) to (6) of that Article and yetnobody can think of questioning the validity of the detention or of the section of the Penal Code under whichthe sentence was passed. Why Because the freedom ofhis person having been lawfully taken away, the convictceases to be entitled to exercise the freedom of speechand expression or any of the other personal rights protected by Cl. (1) of Art. 19. On a parity of reasoning hecannot, while the detention lasts, exercise any other personal right, e.g., he cannot eat what he likes or when helikes but has to eat what the Jail Code provides for himand at the time when he is by Jail regulations required toeat. thereforee, the conclusion is irresistible that the rightsprotected by Art. 19(1), in so far as they relate to rightsattached to the person, i.e.. the rights referred to insub-cis. (a) to (e) and (g), are rights which only a freecitizen, who has the freedom of his person unimpaired,can exercise.'

Further-

'...the rights enumerated in Article 19(1) subsist while thecitizen has the legal capacity to exercise them. If hiscapacity to exercise them is gone, by reason of a lawfulconviction with respect to the rights in sub-clauses (a) to(e) and (g), or by reason of lawful compulsory acquisition with respect to the right in sub-clause (f), he ceasesto have those rights while his incapacity lasts. It furtherfollows that if a citizen's freedom of the person is lawfullytaken away otherwise then as a result of a lawful conviction for an offence, and citizen, for precisely the samereason, cannot exercise any of the rights attached to hisperson including those enumerated in sub-cis. (a) to (e)and (g) of Article 19(1). In my judgment, a lawfuldetention, whether punitive or preventive, does not offendagainst the protection conferred by Art. 19(1)(a) to (e)and (g), for those rights must necessarily cease when thefreedom of the person is lawfully taken away. In short,those rights and where the lawful detention begins.'

In the premises, it was held (a: page 113) that 'The protection of Art. 19 is co-tei'minous with the legal capacity of a citizen to exercisethe rights protected thereby, for sub-clauses (a) to (e) and (g) ofArticle 19(1) postulate the freedom of the person which alone canensure the capacity to exercise the rights protected by those subclauses. A citizen who loses the freedom of his person by being lawfully detained, whether as a result of a conviction for an offence , a result of preventive detention loses his capacity to exercise thoserights and, thereforee, has none of the rights which sub-clauses (a) to(e) and (g) may protect'.The law having been settled on high authority the grievances putforth by Sarvshri A. C. Shubh and Kedar Nath Sachdeva are untenableand have to be rejected.

(35) A careful reading of the petitions without doubt reveals thatthe petitioners are in fact trying to enforce a facet of personal libertyA which they cannot do at present. Article 21 of the Constitution ofIndia being the sole repository of rights to life and personal liberty,as held in Additional District Magistrate, Jabalpur v. Shiv KantShukla, : 1976CriLJ945 , in view of the Presidential orderssuspending the enforcement of the rights under Articles 19, 21 and 22 of the Constitution, the facets the petitioners seek to enforce oftheir right to life and personal liberty cannot be enforced by the petitioners under Article 226 of the Constitution.

(36) In view of our discussion on the various points noted above,the petitions (Criminal Writ Nos. 25 of 1976; 229 of 1975; 123 of1976 and 99 of 1976) are dismissed in liminc.


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