Author: Ayush Jain, Unitedworld School of Law, Gandhinagar, Gujarat
Francis Coralie vs. Union Territory of Delhi: Case-Comment
Bench: Hon’bleJustice P.N. Bhagwati and S. Murtaza Fazal Ali
PETITIONER/ APPELLANT: Francis Coralie Mullin
RESPONDENT: Administrator, Union Territory of Delhi and Ors.
Date of Judgment: 13.01.1981
Citation: 1981 AIR 746, 1981 SCR (2) 516
The petitioner, who is a British national, was arrested and detained in the Central Jail, Tihar under an Order dated 23rd November 1979 issued under Section 3 of the COFEPOSA Act. The Petitioner filed a petition in the Court for a writ of habeas corpus challenging her detention, but by a judgment delivered by the Court on 27th February 1980, her petition was rejected with the result that she continued to remain under detention in the Tihar Central Jail. Hence it was necessary for her to consult her lawyer, but even her lawyer found it difficult to obtain an interview with her because in order to arrange an interview, he was required to obtain a prior appointment from the District Magistrate, Delhi and the interview could take place only in the presence of a Customs Officer nominated by the Collector of Customs. This procedure for obtaining an interview caused considerable hardship and inconvenience and there were occasions when, even after obtaining prior appointment from the District Magistrate, her lawyer could not have an interview with her because no Customs Officer nominated by the Collector of Customs remained present at the appointed time. The petitioner was thus effectively denied the facility of an interview with her lawyer and even her young daughter, 5 years old, could not meet her except once in a month as per Section 3(b)(ii). She was detained on attempting to smuggle hashish out of the country and hence for her defence, interview with her lawyer was of extreme importance.
- Whether the sub-clause (i) and (ii) of clause 3 (b) of COFEPOSA are in violation of Article 14 and 21 of the Indian Constitution?
- Whether the right given in Article 22 of the Indian Constitution is also violated as the Petitioner was not allowed to meet his legal representative?
From Petitioner: The petitioner argued that allowing only once in a month for meeting the family members is discriminatory and unreasonable as this was not the procedure for under-trial prisoners who were permitted the access of an interview twice per week as per Rule 559A and convicted prisoners who were granted the same facility once a week under Rule 550 of the Rules in the Manual for the jails in Punjab.
The petitioner also argued that Article 22 of the Constitution of India entitles the person to be represented by a legal practitioner of his choice, but here the prior appointment for an interview and of the presence of a Customs or Excise Officer at the interview was not reasonable and was arbitrary in nature.
Hence, this violates the right given under Articles 14 and 21 of the Constitution of India.
From Respondent: The defendants argued that the clauses were not violative of Articles 14 and 21 as the restrictions imposed were reasonable, fair, and just.
The defendant accepted that instead of a monthly interview, the petitioner could be granted the facility of an interview twice a week with her daughter and sister as in the case of under- trial prisoners and they would relax the condition of presence of a customs or excise officer at the interview with the lawyer.
The Court held that the Sub-clause (i) of Clause 3 (b) of COFEPOSA Act which is regulating the right of the petitioner to have an interview with a legal adviser of his choice is violative of Articles 14 and 21 of the Constitution of India and must be held to be unconstitutional and void. The court finds it reasonable that if the Petitioner were to be entitled to have an interview with his legal adviser at any reasonable hour during the day after taking an appointment from the Superintendent of the Jail, which appointment should be given by the Superintendent without any delay.
The Hon’ble Court also said that the interview need not necessarily take place in the presence of a nominated officer of Customs/Central Excise/Enforcement but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, then such officer and if his presence cannot be so secured, then any other Jail official may, if thought necessary, watch the interview but not so as to be within hearing distance of the detenu and the legal adviser.
Hence, the court allowed the writ petition and granted relief to the petitioner.
Article 21 and Article 14 gives right to life and right to life with dignity, but even today there are many cases in which this right is violated in the umbrella of many sanctions, hence there is a need to review these laws or acts which violate the basic rights given by the constitution.
This case is a landmark judgment to determine the distinction between preventive detention with punitive detention under the scope of Article 21 of the Indian Constitution and determining the constitutional validity of restricting the right of Petitioner to get an interview with their lawyer and contact with their family members. Hence the meaning of life is not delimited to animal existence but is inclusive of the right to live with human dignity and to avail the bare necessities of life. Here the requirement of prior appointment for an interview and of the presence of a Customs or Excise Officer at the interview was arbitrary and unreasonable in nature and since she was not able to meet his lawyer or legal representative of her choice that deprived her right given under the Articles 14 and 21 of the Constitution of India as the right to life includes the right to live with human dignity and to fulfill the bare necessities of life. It was fairly pointed that when an under-trial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relatives and friends once in a week under Rule 550, it cannot be reasonably justified to restrict the same facility to any person in detention. Hence, The restrictions enlisted in S. 3(b) (i) and (ii) in the COFEPOSA Act cannot be held to be valid. The decision was appropriate, logical, and justified as it provided the right given by the constitution and considered the constitution as a grand norm against any other act or provision.
 Maruti Shripati Dubal vs State Of Maharashtra, 1987 (1) BomCR 499, (1986) 88 BOMLR 589