This Article is written by Divya K. (currently pursuing BBA LLB in Symbiosis Law School)
IN THE SUPREME COURT OF INDIA
Francis Coralie Mullin
The Administrator, Union Territory of Delhi
Citation: 1981 AIR 746
In the present case, the petitioner is a British national. She was arrested and detained in Central Tihar jail under section 3 of the Conservation of foreign exchange and Prevention of Smuggling Activities, Act 1974 (COFEPOSA Act). As a result, she tried to file a petition for a writ for habeas corpus challenging her detention but the court denied its petition and she had to remain in the Tihar jail. When she was in jail, she experienced a lot of problems in having interviews with her lawyer and the members of her family. Her daughter was of 5 years and she was taken care of by her sister. The petitioner could meet her daughter only once a month and she was not allowed to meet her more often even though her daughter was of tender age. The petitioner had to consult the lawyer because some criminal proceeding was pending against her for attempting to smuggle hashish out of the country. But even the lawyer was facing difficulty in fixing a meeting with her because, in order to fix a meet with, he had to obtain a prior appointment with the district magistrate and the meeting could happen only in the presence of a customs officer appointed by the collector of customs. This caused a great number of hardships when sometimes even after taking an appointment the meeting couldn’t take place because the customs officer appointed by the collector of customs was not present at the time of the meeting. These restrictions were imposed by the prison authorities under clause 3b, sub-clause i) and ii) of the COFEPOSA Act. The petitioner then filed a petition under article 32 challenging the constitutional validity of clause 3b, sub-clause i) and ii) and a request that the Administrator of Union Territory of Delhi and Superintendent of Tihar Jail be directed to allow her to have a meeting with her lawyer and family members.
- Is clause 3b, sub-clause i) and ii) under COFEPOSA Act, 1974 violative of articles 14 and 21 of the constitution of India?
- The distinction between preventive detention and punitive detention? If a person under preventive detention has the right to life?
The court referred to Kharak Singh vs State of Uttar Pradesh and observed that the right to life written under article 21 of the Indian constitution cannot be restricted to mere animal existence. It has more importance than mere physical existence. The right to life includes the right to live with human dignity. It is true that the detenu or prisoner cannot move freely outside the jail walls nor can they socialize with people outside the jail freely. However, in consideration of the right to live with human dignity, no prisoner can be stopped from meeting his family members or lawyer, and no such police regulation stopping the meetings with family members and lawyers can be upheld under articles 14 and 21 of the Indian constitution unless it just, reasonable and fair. The right to interviews with family members and friends is part of the personal liberty guaranteed under article 21. Maneka Gandhi’s case gave a wider interpretation to the right to live with personal liberty. It also includes the rights which have been raised to the status of fundamental rights and are given additional protection under article 19. Thus, it can be deduced that personal liberty would include the right to meet with family members and friends under articles 14 and 21, and the prison regulation restricting such interviews must be reasonable and non-arbitrary. If the prison regulations are arbitrary and unreasonable then it would be liable to be struck down in violation of articles 14 and 21.
The court contends that when an under-trial prisoner can be allowed to meet the friends and relatives twice a week under rule 559A and a convicted person can meet his friends and relatives once a week under rule 550, then how can a detenu how is at a higher pedestal than under-trial prisoner or detenu be restricted from meeting his relatives and friends. Thus, the court holds clause 3b, sub-clause i) and ii) violative of articles 14 and 21. It allows the writ petition and directs the jail authorities to allow the detenu to have a meeting at any reasonable time of the day and also iterated that it is not necessary for the nominated officer of customs to be present during the meeting but even if it is required the meeting should be held without any delay.
 Conservation of Foreign Exchange and Prevention of Smuggling Activities, Act 1974, No. 52, § 3, Acts of Parliament, 1974 (India).
India Const. art. 14.
India Const. art. 21.
 Kharak Singh vs State of Uttar Pradesh, 1963 AIR 1295.
 Maneka Gandhi vs Union of India, 1978 AIR 597.