LexFRANCIS CORALIE MULLIN versus THE ADMINISTRATOR, UNION TERRITORY OF DELHI & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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FRANCIS CORALIE MULLIN
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THE ADMINISTRATOR, UNION TERRITORY OF DELHI
& ORS.
January 13, 1981
[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]
Right of the detenu under Conservation of Foreig11 Exchange & Prevention
of Smuggling Activitiea Act, to have interview wilh a lawyer and the mtm·
bm of hu family-Section 3(b)({) &: (ii) read with rule 559A and 550 of
the Punjab Manual of the Superintendence and Management of lail.J-Whethtr
voilate3 Article.J 14 and 21 of the Constitution and hence invalid-Di3tirlctioll
between pre~·mtive detention with punitive detention-Constitution ,of Indf~
1950 Article 21, scope of.
Allowing the writ petition, the Court
HEll> : ( 1) While considering the question of validity of conditiom of
detention coum must necessarily bear in mind the vital distinction
betm:en
preventive detention and ptmitive detention.
Punitive detention is intended
to inflict punishment on a person, who is found by the judicial process to have
committed an offence, while preventive detention is not by way of punishment
at all, but it is intended to pre-empt a pe~on from indulging in conduct
injurio\18 to tho society. [523 A·B]
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(2) Tho power of preventive detention has been recognised as a noces-
eary evil and is tolerated in a free society in the larger interest of security of
th,e State and maintenance of public order. It is a drastic power to detain a
person without trial and in many countries it is not allowed to be exercised
except in times of war or aggression. The Indian Constitution does recognise
the existence of this power, but it is hedged-in by various safeguards set out
in Articles 21 and 22. Article 22 in clauses (4) to (7) d.t1lls specifically with
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safeguards against preventive detention and enjoins that any law of preventive
detention or action by way of preventive detention taken under such law m111t
be in confonnity with the restrictions laid down by those clause! on pain of -.-....
invalidation, Article 21 also lays down restrictions on the power of preventive
detention. [523 B-DJ
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Article 21 as interpreted in Mantka Gandhi'3 callt requires that no one
shall be deprived of his life or personal liberty except by procedure establish-
ed by law and this procWure must be rea!lonablo, fair and just and not arbi-
trary, whimsical or fanciful and it is for the Court to decide in the exercise
of its corutitutional power of judicial review whether the deprivation of life
or personal liberty in a given ca.se is by procedure, which is reasonable, falr
and just or it is otherwise. The law of preventive detention must, therefore,
pass the test not only of Article 22 but also of Article 21. But, despite these
safeguards laid down by the Constitution and creatively evolved by the Courts.
the power of preventive detention is a frightful and awesome power with
drastic consequences affectin~ personal liberty, which is the moet cheri8hed
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F. C. MULLIN V. UNION TERRITORY
517
and prized possession of man in a. civilised society. It i.~ a power to be exer~
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cised with the greatest care and caution and the courts have to be ever vigilant
to see that this power is not abused or misused, inasmuch as the preventive
detention is quilitatively different from punitive detention and their purposes
are diiferent. In case of punitive detention, the person has full~t opportunity
to defend himself,
while in case of preventive detention, the
opportunity
that be has for contesting the action of the Executive is very limited. There-
fore, the "restrictions placed on a person preventively detained must, consis-
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tently with the effectiveness of detention, be minimal".
[524 A-G]
Maneka Gandhi v. Union of India, [1979] 1 SCC 248;
M.O. Hoscot v.
State of Maharashtra,
[1979] 1 SCR 192;
Hussainara Khatoon v. State of
Bihar,
[1980] 1 SCC 81; Sunil Batra (I) v. Delhi Administration, (1979] 1
SCR 392; Sunil Batra (II) v. Delhi Administration,
[1980] 2 SCR
557, re-
ferred to.
Sampat Prakash v. Stflte of Jammu and Kashmir,
[1969]
3 SCR
574,
follnwed.
3. The prisoner or detenu has
all the fundamental
rights and
other
legal rights available to a free person, save
those
which are incapable of
enjoyment by reason of incarcera.tion. A prisoner or detenu is not stripped
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of his fundamental or other legal rights, save those which are inconsistent
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with his incarceration, and if any of these rights are violated, the Court wilExcerpt shown. Read the full judgment & AI analysis in Lexace.