Punjab-Haryana High Court
Viresh Shandilya vs Union Of India (Uoi) And Ors. on 1 November, 2004
Equivalent citations: (2005)139PLR357
Author: Surya Kant
Bench: Surya Kant
JUDGMENT Surya Kant, J.
1. This Writ Petition, a Public Interest Litigation, was filed with a sole prayer to issue a writ in the nature of mandamus commanding Respondents No. 1 and 2 to hand over the investigation of the "Burail Jail Break Case" to the Central Bureau of Investigation.
2. In a shocking incident which virtually shattered people's faith in the jail officials, security forces and intelligence agencies, some dreaded terrorists, who were allegedly involved in the assassination of Shri Beant Singh, the then Chief Minister of Punjab, escaped from the Burail Jail, U.T. Chandigarh, claimed to be in the high security zone, on January 22, 2004, by digging out a 94"xl.5'x2' long tunnel which was dugged 14 feet under the earth, obviously beyond comprehension of a layman as to how digging of such a tunnel could take place without the knowledge and active connivance and help of the persons who were supposed to keep a watch over these dreaded terrorists in the jail. This incident was highlighted in the media that the escape had taken place despite a high security jail equipped with sensitive cameras and manned by jail police and central forces round the clock.
3. Upon issuance of notice to all the authorities concerned including the Union of India, this Court on February 5, 2004 was apprised of the fact that the investigation in the matter was at a crucial stage and near completion and thus it was in the interest of justice not to interfere with the same for the present. While adjourning the case, a direction was issued to produce the report of the investigating agency in a sealed cover before us. Orders passed by the learned District & Sessions Judge, Chandigarh in relation to providing cable TV facilities to the under trials lodged in the jail was also passed to be posted for our perusal. Having been satisfied with the investigation conducted by the Chandigarh Police by associating some other agencies as well, vide an order dated April 8, 2004 we had disposed of the matter so far as the investigation of "Burail Jai Break" was concerned, however, keeping alive the issues in relation to providing cable TV and other facilities to the jail inmates.
4. Since it has come to the record and has been highlighted time and again by all concerned that TV sets along with 24 hour cable facilities had been provided to the individual barracks in the Burail Jail and the terrorists while digging out the tunnel deliberately kept the volume of their TV sets high so that no noise of the digging of tunnel could he heard outside the barracks, it was apparent that certain recreational facilities were either being misused or were capable of being misused. We, therefore, vide our order dated April 27,2004 directed the U.T. Chandigarh Administration to produce before us the orders, if any passed for making such facilities available in Tihar Jai, New Delhi to which reference was made. We also restrained the jail authorities or anyone visiting the jail to carry any mobile phone/pager and/or any other electronic device which could be used for transmission for sending or receiving message within the jail premises, subject to the condition, however, that if there exists any order passed by the Supreme Court contrary to our directions, then our direction so far as it was inconsistent to the order passed by the Supreme Court in this regard, shall not be given effect to.
5. Pursuant to our afore-mentioned directions, the Union of India as well as the Chandigarh Administration placed on record a communication dated May 1,2004 sent by the Law Officer (Prisons), Tihar Jail intimating that though there were not any directions from any of the courts with regard to the relay of TV channels for the prisoners lodged in Tihar Jail, however, the Prisons Department, in agreement with cable TV network, was telecasting 5 free to air channels, namely DD News, DD Entertainment, DD Sports, Aastha, Sanskar and two paid channels viz. Star Sports/ESPN/any other sports channel as well as the Discovery channel for the prisoners. Another communication dated May 14,2004 issued by the Director General, Prisons, Headquarter, Tihar Jail, New Delhi, which was also to the same effect was produced by the Union of India. At this stage, it may be mentioned that vide an order dated April 16, 2001, the learned District & Sessions Judge, Chandigarh had directed the Superintendent, Model Jail Burail, to make necessary arrangements for the installation of equipment/cable TV facilities for showing the following channels, which were also being provided in Tihar Jail, New Delhi:-
1. DD-1
2. DD Metro
3. DD Sports
4. Star Sports
5. National Geography
6. It appears that in continuation of his afore-mentioned order dated 16.4.2001 and on an application moved by the prisoners in particular those who were allegedly involved in the assassination of Shri Beant Singh, the then Chief Minister, Punjab another order was passed by the learned District & Sessions Judge, Chandigarh on 26.4.2001 whereby, after holding that the release of the channels mentioned above would not cause any loss to the jail authorities or to any other person, and the demand raised by the under trials who are in jail for the last more than 5 years, appears to be genuine", he directed the jail authorities to make arrangements for the release of following additional channels as well:-
1. Lishkara (Punjab)
2. Star Sports
3. Discovery
4. Zee Alpha (Punjabi)
5. Sony
7. It has not been disputed before us that there is a non-stop telecast of these channels in the Burail Jail and the same are viewed by inmates of the jail not on one or two TV sets placed in some common hall but on individual TV sets installed in their barracks. On our directions, replies were also filed on behalf of the States of Punjab and Haryana in relation to the TV facilities provided in their respective jails. We were informed on behalf of the Govt. of Punjab that TVs have been provided in each of the barracks which become operational every day from 4 PM to 10 PM and only DD channels are being shown. On behalf of the State of Haryana, details of TVs installed in different jails of the State have been provided,however, without further details as to what channels were allowed to be viewed by the inmates and/or the timings for such viewing.
8. We have heard Shri Anupam Gupta, learned Amicus Curiae, Shri AtuI Lakhanpal, learned counsel for the petitioner, Shri Rajan Gupta, learned Standing Counsel for CBI and Shri Rajiv Atma Ram, learned Senior Standing Counsel for the Chandigarh administration in relation to the facilities provided in the Burail jail.
9. The question to which we are confronted is as to whether those recreational activities, which might endanger the very security of the jail premises and/or are capable of being misused by hard-core/ professional criminals, should be allowed to be provided or not without militating against the object of Article 21 of the Constitution of India? There can be no exception that the protection of Article 21 extends to all "persons" and not merely to the citizens of our country as laid down by their Lordships of the Supreme Court in the catena of judgments starting from Anwar v. State of J & K, AIR 1971 SC 337 and later on followed and reiterated in several cases including (i) National Human Rights Commission v. State of Arunachal Pradesh, 1996(1) SCO 742; (ii) Louis De Raedt v. Union of India} 1991(3) SCC 554; (iii) State of Arunachal Pradesh v. Khudi Ram Chakma, 1994 Supp.(l) SCC 615; (iv) Chairman, Railway Board v. Chandrima Dass, 2000(2) SCC 465.
10. The scope of Article 21 of the Constitution has been further expanded by extending its protective umbrella even to the persons imprisoned, as held by the Supreme Court in the case of State of Maharashtra v. Parbhakar Pandurang Sanzgiri, AIR 1966 SC 424 and in the case of Sunil Batra v. Delhi Administration, AIR 1978 SC 1675. True, 'it is that right to life is something more than just survival or animal existence and it includes the right to live with human dignity. In fact, right to life enshrined in Article 21 includes all those facets of life which make human life meaningful, complete and worth living in a civilized society, therefore, it inherently includes the right to food, water, decent environment, education, medical care and shelter. Even in the case of prisoners, despite the restrictive meaning, the right to life has been held to be inclusive of bare necessities of life such as adequate nutrition, clothing, shelter over the head, facilities for reading, writing, interviews with members of his family and friends, subject of course, to prison's regulations, if any. The rights of prisoners in terms of Article 21 have been well explained and re-stated by the Supreme Court in the case of Francis CorallinaUin v. U.T. Delhi Administration, AIR 1981 SC 746 and (ii) A.K. Roy v. Union of India, AIR 1982 SC 710. Thus even after a person is convicted and imprisoned under sentence of the Court, he does not lose all his fundamental rights guaranteed under our Constitution excepting those which he cannot be permitted to enjoy owing to the fact of his incarceration, such as right to move freely, right to practice of profession. However, in Parbhakar Pandurang Sanzgiri and Sunil Batra's cases (supra), the freedom of expression which includes the freedom of reading and writing was held to be a permissible right of the prisoner, A prisoner thus notwithstanding his imprisonment is entitled to those minimum human rights such as "recreation, freedom from extremes of heat and cold, freedom from indignities like compulsory nudity or other vulgarities over and above those restrictions which the present administration is entitled to impose for maintaining internal order, discipline, prevention of escape and the like, which follow from the sentence of imprisonment. " (emphasis applied).
11. Needless to say that the liberal interpretation given to Article 21,makes it the most sacrosanct fundamental right guaranteed by our Constitution, is in conformity with the international law as India is a signatory to the International Covenant of Civil and Political Rights, 1966, which facts has been taken notice by the Apex Court in People's Union for Civil Liberties v. Union of India, (1997)1 SCC 301.
12. We are, however, conscious of the fact that the Constitution Bench of the Supreme Court in A.R. Antuley v. R.S. Nayak, AIR 1998 SC 1531, observed that a court cannot confer a jurisdiction on itself which was not provided by the Constitution or statutory law and that a judicial order which violates a fundamental right or the principles of natural justice, is a nullity which, if there is no superior Court to set it aside, can be rectified by the Court which passes the same in the exercise of its inherent jurisdiction.
13. Coming to the facts of the case in hand and the issue raised before us, it cannot be lost site that all the inmates of the Burail Jail are not "prisoners". We have been informed that a substantial majority of them are mere under-trials, no wonder a good many of them may be found innocents by the Courts of law. Therefore, the balance has to be struck in extending the right to recreational activities of "prisoners" as recognised by the Apex Court in Parbakar Pandurang Sanzgiri and Sunil Batra's cases (supra) on one hand and those of "under-trials" who have not been convicted and/or sentenced by the Court of law. To be precise, there cannot be a parity in the matter of granting different kind of rights embraced in Article 21 of the Constitution amongst those who have been condemned and those who are still innocents.
14. Development brings along prosperity and problems both. The invention of electronic devices and their consumption to make the human life more informative and/or to facilitate in day-to-day functions, undoubtedly, is a solace but the sorrow lies in their misuse. From the submissions made at the Bar and the material placed on record, we have no doubt in our mind that the facilities of television, cable network, mobile phones and pagers, etc., have been blatantly and abrasionaly misused by a group of hard-core terrorists including a life convict. The ban upon the use of such equipment, therefore, can be well protected within the exceptions carved out by their Lordships of the Supreme Court in Sunil Batra's case holding that the prison administration is entitled to impose conditions in relation to recreational activities for maintaining internal order, discipline and prevention of escape and the like. However, an absolute ban upon the use of all such items would not only deprive majority of the inmates who are mere "under-trials" even from the amenity of viewing TV, it might cause adverse effects upon the reformatory methods required to be adopted in the model, jails even in relation to the convicts. In the modern era, the television has become the fastest source of information. It is a component of the right to read and write which has since been recognised as a right under Article 21 of the Constitution even for the "prisoners".
15. In our view, the "under-trials" as well as the "prisoners" lodged in the Model Jail Burail too have a right to information and the television can play a crucial role in that regard and to bring them in the mainstream of the civilized society, it will be too hard and anti-thesis of international conventions if a complete ban on viewing of TV is imposed.
16. We are, however, of the view that the learned District and Sessions Judge, Chandigarh lacked jurisdiction under the Code of Criminal Procedure to pass his orders. This apart, his observation that the exhibit of TV Channels would not cause any loss is erroneous inasmuch as many of them are paid ones. We are further of the view that the jail cannot be converted as a star hotel.
17. We are also of the view that the manner in which viewing of television is permitted by the Government of Punjab in its jails is an ideal one as it provides reasonable recreational activities to the jail inmates. As per the stand taken on behalf of the State of Punjab, only 'Doordarshan channels arc allowed to be viewed and that too within the prescribed timing of 4 PM to 10 PM. In the larger public interest and with a hope and trust that such a tragic incident does not re-occur, we, while setting aside the directions to the contrary issued by the learned District and Sessions Judge, Chandigarh from time to time, command the Respondents that henceforth only Doordarshan channels which are free channels and/or other socially and religiously educative channels like Sanskar, Aastha can be provided for viewing to the inmates of Model Jail Burail but only between 4 PM to 10 PM every day. We further direct that no TV set will be installed in the small cells/barracks comprising of one or two inmates as the TV sets can be installed in common halls/rooms and/or the barracks meant for group of inmates of the jail. We make it clear that no other paid channel, either at the cost of State exchequer or even on the asking of the inmates of the jail shall be provided for viewing.
18. We find no justification for permitting the use of mobile phones, pager or any other electronic device by the visitors to the jail, under-trials, or the convicts except some authorised jail officers/officials. Our order dated 27.4.2004 vide which we had restrained the use of these equipments inside the jail premises is, therefore, not varied.
19. This Writ Petition stands disposed of with the directions afore- mentioned.
20. Let a copy of this order be handed over to:-
(i) Shri Rajiv Atma Ram, learned Senior Standing Counsel for the Union Territory of Chandigarh.
(ii) Shri Gurpreet Singh, Additional Central Government Standing Counsel for Union of India.
(iii) Mrs. Cham Tuli, "earned Senior Deputy Advocate General, Punjab.
(iv) Shri Randhir Singh, learned Senior Deputy Advocate General, Haryana. for its intimation to and follow up action by the authorities concerned.
21. A copy of this order snail also be handed over to Shri Anupam Gupta, Advocate, who assisted us.