Frances Coralie Mullin vs W. C. Khambra and Others

Bench: Justice P.N. Bhagwati and Justice Syed Murtaza Fazalali

Appellant: Frances Coralie Mullin Respondent: W. C. Khambra and Others

Citation: 1981 AIR 746, 1981 SCR (2) 516

Issue:

Constitutionality of Clause (i) and (iii) of Clause 3b of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act and the conditions of detention were challenged.

Facts:

• A British National Mrs. Frances Coralie Mullin was detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.
• A petition of writ of habeas corpus was filed by her contesting her detention under the act but was dismissed.
• While she was under detention, she had a lot of difficulty in meeting her lawyer and family members. She was not allowed to meet her daughter 5-year-old and her sister who was taking care of her child only once a month.
• A criminal proceeding was pending against her an attempt to smuggle hashish out of India and so she needed to meet her lawyer often to prepare a defence. But the lawyer even found it difficult as he had to first obtain appointment from District Magistrate and after that another condition that interview shall take place in presence of Customs Officer nominated by the Collector of Customs.
• It caused a lot of hardship to the petitioner and sometimes the scheduled meeting was cancelled because the Customs Officer nominated by the Collector of Customs was absent.
• So, she was denied the facility of interview with her lawyer and even her daughter could not meet more than once in a month.

Argument raised by Appellant:

• The constitutional validity of sub-clauses (i) and (ii) of clause 3(b) was contested on the ground that they are violative of Articles 14 and 21 of the Constitution as they are illogical and irrational.
• It was contended that meeting members of family only once a month is discriminatory and unreasonable as undertrials are allowed to meet with relatives at least twice in a week under Rule 559A and whereas convicted prisoners are permitted to have interview with their relatives and friends once in a week under Rule 550 of the Rules under the Manual for the Superintendence and Management of Jails in the Punjab.
• It was contended that a detenu has a right under Article 22 to be defended by a legal practitioner of his choice so restriction imposed to get a prior appointment for interview and presence of a Customs or Excise Officer at the interview was illogical and irrational and it violates rights under Articles 14 and 21.

Argument raised by Respondent:

• It was contented that sub- clauses (i) and (ii) of clause 3(b) are not in violation of Articles 14 and 21 as the restrictions levied under them were reasonable, fair and just.
• They even agreed to give the facility of interview with her daughter and sister twice in a week and where the interview with the lawyer is in question, the presence of a customs or excise officer at the interview is not necessary.

Judgment:

• The Court held Section 3(b) (i) is unconstitutional as it violates Article 14 and 21 of the Constitution. The Court stated that it is necessary for detenu to have interview with his legal adviser at any reasonable time after taking an appointment from the Superintendent of the Jail.
• The Court held that it is not necessary that interview is taken in presence of a nominated officer of any Customs department or any jail official and if it is needed the interview must be overseen but not within hearable limit.
• The Court held Section 3(b) (ii) as invalid as according to it the detenu can meet his relatives only once a month whereas undertrials can meet their relatives twice every week.
• The writ petition was allowed and the relief was granted.

Difference Between punitive and preventive detention:

Punitive detention is projected to inflict punishment who is found guilty of an offence whereas, preventive detention is not to inflict punishment but to stop the person from cossetting in any act injurious to the society. Preventive detention is considered as a necessary evil and is used to protect security of the State and maintenance of public order. It is harsh power to detain a person without any proceeding and many nations do not use this power except in certain cases like war. The Constitution of India recognises this power, but there are various safeguards set out in Articles 21 and 22.

Article 22 deals with preventive detention and all laws passed under it or any action taken must be in conformity to the article. Article 21 also lays down restrictions on the power of preventive detention. The Supreme Court in Maneka Gandhi. v. Union of India, gave a very slim and restrained meaning to the rights guaranteed under Article 21 and it was understood that it only states rule of law that means nobody shall be deprived of his right to life and personal liberty. It was a guarantee against an executive action uncorroborated by law. So, if any law restricting or endangering the liberty of a person was passed all the conditions under Article 21 must be taken into consideration. In Maneka Gandhi’s case, the Court for the first time opened-up a new dimension of Art. 21 and laid down that Art. 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. But it is not enough to secure amenability with Article 21 there should be a law defining a procedure for depriving a person of his life or personal liberty, but the procedure must be reasonable, fair and just and if not it will violate liberty under Article 21. The Court widened the scope of Art. 21 and scattered the seeds for future development. This decision in Maneka Gandhi’s case led to the evolution of this Article and rights under it, the decisions in M. O. Hoscot v. State of Maharashtra, Hussainara Khatoon’s case, the first Sunil Batra’s case and the second Sunil Batra’s case are proof of it.