Judgment Case ID: 4338

Judgment:
ition No. 3042 of 1980. (Under Article 32 of the Constitution.) N. M. Ghatate (Dr.) and section V. Deshpande for the Petitioner. Hardayal Hardy and M. N. Shroff for the Respondents Nos. 1 2. The Judgment of the Court was delivered by BHAGWATI	 J. This petition under Article 32 of the Constitution raises a question in regard of the right of a detenu under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA Act) to have interview with a lawyer and the members of his family. The facts giving rise to the petition are few and undisputed and may be briefly stated as follows: 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. She preferred a petition in this Court for a writ of habeas corpus challenging her detention	 but by a judgment delivered by this Court on 27th February 1980	 her petition was rejected with the result that she continued to remain under detention in the Tihar Central Jail. Whilst under detention	 the petitioner experienced considerable difficulty in having interview with her lawyer and the members of her family. Her daughter aged about five years and her sister	 who was looking after the daughter	 were permitted to have interview with her only once in a month and she was not allowed to meet her daughter more often	 though a child of very tender age. It seems that some criminal proceeding was pending against the petitioner for attempting to smuggle hashish out of the country and for the purpose of her defence in such criminal proceeding	 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 521 required to obtain 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 interview caused considerable hardship and inconvenience and there were occasions when	 even after obtaining prior appointment from the District Magistrate	 Delhi	 her lawyer could not have an interview with her since no Customs Officer nominated by the Collector of Customs remained present at the appointed time. The petitioner was thus effectively denied the facility of interview with her lawyer and even her young daughter 5 years old could not meet her except once in a month. This restriction on interviews was imposed by the Prison Authorities by virtue of clause 3(b) sub clauses (i) and (ii) of the Conditions of Detention laid down by the Delhi Administration under an Order dated 23rd August 1975 issued in exercise of the powers conferred under section 5 of the COFEPOSA Act. These two sub clauses of clause 3(b) provided inter alia as under: "3. The conditions of detention in respect of classification and interviews shall be as under: (a) . . (b) Interviews: Subject to the direction issued by the Administrator from time to time	 permission for the grant of interviews with a detenu shall be granted by the District Magistrate	 Delhi as under: (i) Interview with legal adviser: Interview with legal adviser in connection with defence of a detenu in a criminal case or in regard to writ petitions and the like	 may be allowed by prior appointment	 in the presence of an officer of Customs/Central Excise/ Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who sponsors the case for detention. (ii) Interview with family members: A monthly interview may be permitted for members of the family consisting of wife	 children or parents of the detenu . . " The petitioner	 therefore	 preferred a petition in this Court under Article 32 challenging the constitutional validity of sub clauses (i) 522 and (ii) of clause 3(b) of the Conditions of Detention Order and praying that the Administrator of the Union Territory of Delhi and the Superintendent of Tihar Central Jail be directed to permit her to have interview with her lawyer and the members of her family without complying with the restrictions laid down in those sub clauses. The principal ground on which the constitutional validity of sub clauses (i) and (ii) of clause 3(b) of the Conditions of Detention Order was challenged was that these provisions were violative of Articles 14 and 21 of the Constitution inasmuch as they were arbitrary and unreasonable. It was contended on behalf of the petitioner that allowing interview with the members of the family only once in a month was discriminatory and unreasonable	 particularly when under trial prisoners were granted the facility of interview with relatives and friends twice in a week under Rule 559A and convicted prisoners were permitted to have interview with their relatives and friends once in a week under Rule 550 of the Rules set out in the Manual for the Superintendence and Management of Jails in the Punjab. The petitioner also urged that a detenu was entitled under Article 22 of the Constitution to consult and be defended by a legal practitioner of his choice and she was	 therefore entitled to the facility of interview with a lawyer whom he wanted to consult or appear for him in a legal proceeding and the requirement of prior appointment for interview and of the presence of a Customs or Excise Officer at the interview was arbitrary and unreasonable and therefore violative of Articles 14 and 21. The respondents resisted the contentions of the petitioner and submitted that sub clauses (i) and (ii) of clause 3(b) were not violative of Articles 14 and 21	 since the restrictions imposed by them were reasonable	 fair and just	 but stated that they would have no objection if instead of a monthly interview	 the petitioner was granted the facility of interview with her daughter and sister twice in a week as in the case of under trial prisoners and so far as interview with the lawyer is concerned	 they would not insist on the presence of a customs or excise officer at the interview. Though these two concessions were made on behalf of the respondents at the hearing of the petition before us	 the question still remains whether sub clause (i) and (ii) of cl. 3(b) are valid and it is necessary that we should examine this question in the context of our constitutional values	 since there are a large number of detenus under the COFEPOSA Act and the conditions of their detention in regard to interviews must be finally settled by this Court. Now it is necessary to bear in mind the distinction between 'preventive detention ' and punitive detention '	 when we are considering 523 the question of validity of conditions of detention. There is a vital distinction between these two kinds of 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 person from indulging in conduct injurious to the society. The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression. Our 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)	 deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from article 22	 there is also article 21 which lays down restrictions on the power of preventive detention. Until the decision of this Court in Maneka Gandhi. vs Union of India	 a very narrow and constricted meaning was given to the guarantee embodied in article 21 and that article was understood to embody only that aspect of the rule of law	 which requires that no one shall be deprived of his life or personal liberty without the authority of law. It was construed only as a guarantee against executive action unsupported by law. So long as there was some law	 which prescribed a procedure authorising deprivation of life or personal liberty	 it was supposed to meet the requirement of article 21. But in Maneka Gandhi 's case (supra)	 this Court for the first time opened up a new dimension of article 21 and laid down that article 21 is not only a guarantee against executive action unsupported by law	 but is also a restriction on law making. It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty	 but the procedure prescribed by the law must be reasonable	 fair and just and if it is not so	 the law would be void as violating the guarantee of article 21. This Court expanded the scope and ambit of the right to life and personal liberty enshrined in article 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights. This decision in Maneka Gandhi 's case became the starting point the spring board for a most spectacular evolution the law culminating in the decisions in M. O. Hoscot vs 524 State of Maharashtra		 Hussainara Khatoon 's case	 the first Sunil Batra 's case and the second Sunil Batra 's case. The position now is that article 21 as interpreted in Maneka Gandhi 's case (supra) requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable	 fair and just and not arbitrary	 whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure	 which is reasonable	 fair and just or it is otherwise. The law of preventive detention has therefore now to pass the test not only of article 22	 but also of article 21 and if the constitutional validity of any such law is challenged	 the Court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable	 fair and just. 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 affecting personal liberty	 which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused. It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention	 the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of trial where he has the fullest opportunity to defend himself	 while in case of preventive detention	 he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the Executive is very limited. Having regard to this distinctive character of preventive detention	 which aims not at punishing an individual for a wrong done by him	 but at curtailing his liberty with a view to pre empting his injurious activities in future	 it has been laid down by this Court in Sampat Prakash vs State of Jammu and Kashmir "that the restrictions placed on a person preventively detained must	 consistently with the effectiveness of detention	 be minimal." The question which then arises is whether a person preventively detained in a prison has any rights which he can enforce in a Court 525 of law. Once his freedom is curtailed by incarceration in a jail	 does he have any fundamental rights at all or does he leave them behind	 when he enters the prison gate ? The answer to this question is no longer res integra. It has been held by this Court in the two Sunil Batra cases that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration. " 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 incarceration. Even before the two Sunil Batra cases	 this position was impliedly accepted in State of Maharashtra vs Prabhakar Sanzgiri and it was spelt out clearly and in no uncertain terms by Chandrachud	 J. as he then was	 in D. B. Patnaik vs State of Andhra Pradesh : "Convicts are not	 by mere reason of the conviction	 denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law	 following upon a conviction	 to live in a prison house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire	 hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise	 even a convict is entitled to the precious right guaranteed by article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law. " This statement of the law was affirmed by a Bench of five Judges of this Court in the first Sunil Batra case (supra) and by Krishna Iyer	 J. speaking on behalf of the Court in the second Sunil Batra case (supra). Krishna Iyer	 J. in the latter case proceeded to add in his characteristic style; "The jurisdictional reach and range of this Court 's writ to hold prison caprice and cruelty in constitutional leash is incontestable" and concluded by observing; "Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ ' aid. The Indian human has a constant companion the Court armed with the Constitution. " 526 It is interesting to note that the Supreme Court of the United States has also taken the same view in regard to rights of prisoners. Mr. Justice Douglas struck a humanistic note when he said in Eve Pall 's case : "Prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process." So also in Charles Wolff 's case	 Mr. Justice White made the same point in emphatic terms. "But	 though his rights may be diminished by environment	 a prisoner is not wholly stripped off constitutional protections	 when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country." Mr. Justice Douglas reiterated his thesis when he asserted: "Every prisoner 's liberty i.e. of courses	 circumscribed by the very fact of his confinement	 but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a non person whose rights are subject to the whim of the prison administration	 and therefore	 the imposition of any serious punishment within the system requires procedural safeguards." Mr. Justice Marshall also expressed himself clearly and explicitly in the same terms: "I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate	 and I fully support the court 's holding that the interest of inmates in freedom from imposition of serious discipline is a 'liberty ' entitled to due process protection. " What is stated by these learned Judges in regard to the rights of a prisoner under the Constitution of the United States applies equally in regard to the rights of a prisoner or detenu under our constitutional system. It must	 therefore	 now be taken to be well settled that a prisoner or detenu is not stripped of his fundamental or other legal rights	 save those which are inconsistent with his incarceration	 and if any of these rights are violated	 the Court which is to use the words of Krishna Iyer	 J.	 "not a distant abstraction omnipotent in the 527 books but an activist institution which is the cynosure of public hope	 will immediately spring into action and run to his rescue. We must therefore proceed to consider whether any of the Fundamental Rights of the detenu are violated by sub clauses (i) and (ii) of clause 3(b) so as to result in their invalidation wholly or in part. We will first take up for consideration the Fundamental Right of the detenu under Article 21 because that is a Fundamental Right which has, after the decision in Maneka Gandhi 's case (supra), a highly activist magnitude and it embodies a constitutional value of supreme importance in a democratic society. It provides that no one shall be deprived of his life or personal liberty except according to procedure established by law and such procedure shall be reasonable fair, and just. Now what is the true scope and ambit of the right to life guaranteed under this Article ? While arriving at the proper meaning and content of the right to life, we must remember that it is a constitutional provision which we are expounding and moreover it is a provision enacting a Fundamental right and the attempt of the court should always be to expand the reach and ambit of the Fundamental right rather than to attenuate its meaning and content. The luminous guideline in the interpretation of a constitutional provision is provided by the Supreme Court of United States in Weems vs U. section 54 Lawyers Edition 801. Legislation	 both statutory and constitutional is enacted	 it is true	 from an experience of evils	 but its general language should not	 therefore	 be necessarily confined to the form that evil had	 therefore taken. Time works changes	 brings into existence new conditions and purposes. Therefore	 a principle	 to be vital	 must be capable of wider application than mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments designed to meet passing occasions. They are	 to use the words of Chief Justice Marshall	 "designed to approach immorality as nearly as human institutions can approach it" The future is their care	 and provisions for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution	 therefore	 our contemplation cannot be only of what has been	 but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value	 and be converted by precedent into important and lifeless formulas. Rights declared in the words might be lost in reality. And this has been recognised. The meaning and vitality of the 528 Constitution have developed against narrow and restrictive construction. " This principle of interpretation which requires that a Constitutional provision must be construed	 not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges	 applies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. Now obviously	 the right to life enshrined in Article 21 can not be restricted to mere animal existence. It means something much more than just physical survival. In Kharak Singh vs State of Uttar Pradesh Subba Rao J. quoted with approval the following passage from the judgment of Field J. in Munn vs Illinois to emphasize the quality of life covered by Article 21: "By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world." and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra case (supra). Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari	 this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial	 neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21	 whether such deprivation be permanent or temporary and	 furthermore	 depriva 529 tion is not an act which is complete once and for all: it is a continuing act and so long as it lasts	 it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of	 any limb or faculty of a person	 either permanently or even temporarily	 would be within the inhibition of Article 21. But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it	 namely	 the bare necessaries of life such as adequate nutrition	 clothing and shelter and facilities for reading	 writing and expressing one self in diverse forms	 freely moving about and mixing and commingling with fellow human beings. Of course	 the magnitude and content of the components of this right would depend upon the extent of the economic development of the country	 but it must	 in any view of the matter	 include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self. Every act which offends against or impairs human dignity would constitute deprivation protanto of this right to live and it would have to be in accordance with reasonable	 fair and just procedure established by law which stands the test of other fundamental rights. Now obviously	 any form of torture or cruel	 inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would	 on this view	 be prohibited by Article 21 unless it is in accordance with procedure prescribed by law	 but no law which authorises and no procedure which leads to such torture or cruel	 inhuman or degrading treatment can ever stand the test of reasonableness and non arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel	 inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned	 this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free will with persons outside the jail. But	 as part of the 530 right to live with human dignity and therefore as a necessary component of the right to life	 he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21	 unless it is reasonable	 fair and just. The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21	 for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article. The expression 'personal liberty ' occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi 's case (supra) and it has been held in that case that the expression 'personal liberty used in that Article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19". There can therefore be no doubt that 'personal liberty would include the right to socialise with members of the family and friends subject	 of course	 to any valid prison regulations and under Articles 14 and 21	 such prison regulations must be reasonable and non arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable	 it would be liable to be struck down as invalid as being violative of Articles 14 and 21. Now obviously 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 is difficult to understand how sub clause (ii) of Clause 3(b) of the Conditions of Detention Order	 which restricts the interview only to one in a month in case of a detenu	 can possibly be regarded as reasonable and non arbitrary	 particularly when a detenu stands on a higher pedestal than an under trial prisoner or a convict and	 as held by this Court in Sampath Prakash 's case (supra) restrictions placed on a detenu must "consistent with the effectiveness of detention	 be minimal. " We would therefore unhesitatingly hold sub clause (ii) of clause 3(b) to be violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu. We are of the view that a detenu must be permitted to have atleast two interviews in a week with relatives and friends and it should be possible for a relative or friend to have interview with 531 the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it should not be necessary to seek the permission of the District Magistrate	 Delhi	 as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable. We would go so far as to say that even independently of Rules 550 and 559A	 we would regard the present norm of two interviews in a week for prisoners as furnishing a criterion of what we would consider reasonable and non arbitrary. The same reasoning must also result in invalidation of sub clause (i) of clause 3(b) of the Conditions of Detention Order which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate	 Delhi and the interview has to take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the case for detention. The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention of filing a writ petition or prosecuting any claim or proceeding	 civil or criminal	 is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable	 fair and just procedure established by a valid law. A prison regulation may	 therefore	 regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable	 fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so	 it would be violative of Articles 14 and 21. Now in the present case the legal adviser can have interview with a detenu only by prior appointment after obtaining permission of the District Magistrate	 Delhi. This would obviously cause great hardship and inconvenience because the legal adviser would have to apply to the District Magistrate	 Delhi well in advance and then also the time fixed by the District Magistrate	 Delhi may not be suitable to the legal adviser who would ordinarily be a busy practitioner and	 in that event	 from a practical point of view the right to consult a legal adviser would be rendered illusory. Moreover	 the interview must take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the detention and this too would seem to be an unreasonable procedural requirement because in order to secure the presence of such officer at the interview	 the District Magistrate	 Delhi 532 would have to fix the time for the interview in consultation with the Collector of Customs/Central Excise or the Deputy Director of Enforcement and it may become difficult to synchronise the time which suits the legal adviser with the time convenient to the concerned officer and furthermore if the nominated officer does not	 for any reason	 attend at the appointed time	 as seems to have happened on quite a few occasions in the case of the petitioner	 the interview cannot be held at all and the legal adviser would have to go back without meeting the detenu and the entire procedure for applying for an appointment to the District Magistrate	 Delhi would have to be gone through once again. We may point out that no satisfactory explanation has been given on behalf of the respondents disclosing the rationale of this requirement. We are therefore of view that sub clause (i) of clause 3(b) regulating the right of a detenu to have interview with a legal adviser of his choice is violative of articles 14 and 21 and must be held to be unconstitutional and void. We think that it would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail	 which appointment should be given by the Superintendent without any avoidable delay. We may add 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 as to be within hearing distance of the detenu and the legal adviser. We accordingly allow the writ petition and grant relief to the extent indicated above. V.D.K. Petition allowed.

Summary:
Allowing the writ petition	 the Court ^ HELD : (1) While considering the question of validity of conditions of detention courts must necessarily bear in mind the vital distinction between preventive detention and punitive 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 person from indulging in conduct injurious to the society. [523 A B] (2) The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the 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) deals specifically with safeguards against preventive detention and enjoins that any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation	 Article 21 also lays down restrictions on the power of preventive detention. [523 B D] Article 21 as interpreted in Maneka Gandhi 's case requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable	 fair and just and not arbitrary	 whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power or judicial review whether the deprivation of life or personal liberty in a given case is by procedure	 which is reasonable	 fair 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 affecting personal liberty	 which is the most cherished 517 and prized possession of man in a civilised society. It is a power to be exercised 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 qualitatively different from punitive detention and their purposes are different. In case of punitive detention	 the person has fullest opportunity to defend himself	 while in case of preventive detention	 the opportunity that he has for contesting the action of the Executive is very limited. Therefore	 the "restrictions placed on a person preventively detained must	 consistently with the effectiveness of detention	 be minimal". [524A G] Maneka Gandhi vs Union of India	 ; ; M.O. Hoscot vs State of Maharashtra	 ; ; Hussainara Khatoon vs State of Bihar	 ; ; Sunil Batra (I) vs Delhi Administration	 ; ; Sunil Batra (II) vs Delhi Administration	 ; 	 referred to. Sampat Prakash vs State of Jammu and Kashmir	 ; 	 followed. 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 incarceration. A prisoner or detenu is not stripped of his fundamental or other legal rights	 save those which are inconsistent with his incarceration	 and if any of these rights are violated	 the Court will immediately spring into action and run to his rescue. [525 B C	 526 G H	 527 A] Sunil Batra (I) vs Delhi Administration	 ; ; Sunil Batra (II) vs Delhi Administration	 ; 	 State of Maharashtra vs Prabhakar Sanzgire ; ; D. B. Patnaik vs State of Andhra Pradesh	 ; 	 followed. Eve Pall 's Case; 	 41 Lawyers Edition 2nd 495; Charles Wolffs Case	 41 Lawyers Edition 2nd 935	 quoted with approval. (4) While arriving at the proper meaning and content of the right to life	 the attempt of the court should always be to expand the reach and ambit of the fundamental right rather than to attenuate its meaning and content. A constitutional provision must be construed	 not in a narrow and constricted sense	 but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges. This principle applies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. [527 C D	 528 A C] Weems vs U.S. 54 Lawyers Edition 801	 quoted with approval. (5) The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. 518 Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari	 this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article may be total or partially neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21	 whether such deprivation be permanent or temporary and	 furthermore	 deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts	 it must be in accordance with procedure established by law. Therefore any act which damages or injures or interferes with the use of any limb or faculty of a person either permanently or even temporarily	 would be within the inhibition of Article 21. [528 D	 G H	 529 A] Kharak Singh vs State of Uttar Pradesh	 	 followed. Munn vs Illinois 	 referred to. Sunil Batra vs Delhi Administration	 ; 	 applied. (6) The right to life includes the right to live with human dignity and all that goes along with it	 namely	 the bare necessaries of life such as adequate nutrition	 clothing and shelter and facilities for reading	 writing and expressing oneself in diverse forms	 freely moving about and mixing and commingling with fellow human beings. The magnitude and content of the components of this right would depend upon the extent of the economic development of the country	 but it must	 in any view of the matter	 include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable	 fair and just procedure established by law which stands the test of other fundamental rights. Therefore	 any form of torture or cruel	 inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would	 on this view	 be prohibited by Article 21 unless it is in accordance with procedure prescribed by law	 but no law which authorises and no procedure which leads to such torture or cruelty	 inhuman or degrading treatment can ever stand the test of reasonableness and non arbitrariness: it would plainly be unconstitutional and void as being violative of Article 14 and 21. [529 B F] (7) There is implicit in Article 21 the right to protection against torture or cruel	 inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the international Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore	 when a person is lawfully imprisoned	 this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can be socialise at his free will with persons outside the jail. But	 as part of the right to live with human dignity and therefore	 as a necessary component of the right to life	 he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and 519 friends can be upheld as constitutionally valid under Article 14 and 21	 unless it is reasonable	 fair and just. Considered from the point of view also of the right to personal liberty enshrined in Article 21	 the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article. The expression "personal liberty" occurring in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19". Therefore	 personal liberty would include the right to socialise with members of the family and friends subject	 of course	 to any valid prison regulations and under Articles 14 and 21	 such prison regulations must be reasonable and non arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable	 it would be liable to be struck down as invalid as being violative of Articles 14 and 21. [530 B E] Maneka Gandhi vs Union of India	 ; 	 applied. (8) Sub clause (ii) of clause 3(b) of the Conditions of Detention Order is violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu. 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	 sub clause (ii) of clause 3(b) of the Conditions of Detention Order	 which restricts the interview only to one in a month in case of a detenu	 is unreasonable and arbitrary	 particularly when a detenu stands on a highest pedestal than an under trial prisoner or a convict. A detenu must be permitted to have at least two interviews in a week with relatives and friends and it should be possible for relative or friend to have interview with the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it should not be necessary to seek the permission of the District Magistrate	 Delhi	 as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable. Even independently of Rules 550 and 559A	 of the Punjab Manual for the Superintendence and Management of Jails	 the present norm of two interviews in a week for prisoners furnishes a reasonable and non arbitrary criterion. [530 F H	 531 A B] Sampath Prakash vs State of Jammu and Kashmir	 ; 	 applied. (9) Sub clause (i) of clause 3(b) of the Conditions of Detention Order regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Article 14 and 21 and therefore unconstitutional and void	 It would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail	 which appointment should be given by the Superintendent without any avoidable delay. 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	 than such officer and if his presence cannot be so secured	 520 then any other Jail official may	 if thought necessary	 watch the interview but in a month to a detenu. When an under trial prisoner is granted the facility [532C F] (10) The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention or filling a writ petition or prosecuting any claim or proceeding	 civil or criminal is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable	 fair and just procedure established by a valid law. [531C E]