IN THE HIGH COURT OF DELHI, AT NEW DELHI EXTRAORDINARY WRIT JURISDICTION Writ Petition (Civil) No _______ of 2014 IN THE

PUBLIC INTEREST LITIGATION OF: AMIT SAHNI VERSUS DIRECTOR GENERAL(PRISONS) & ORS RESPONDENT WRIT PETITION UNDER ARTICLE 226 OF THE PETITIONER

CONSTITUTION OF INDIA SEEKING A WRIT OF CERTIORARI OR ANY OTHER WRIT OF THE LIKE NATURE QUASHING STANDING ORDER NO 53 DATED 27-02-2013 PASSED BY THE RESPONDENT NO. 1, WHEREBY FRAMING RULES CONTRARY TO THE LAW OF THE LAND AND FURTHER SEEKING DIRECTIONS To, THE HONBLE THE CHIEF JUSTICE OF THE HONBLE HIGH COURT OF DELHI ANDHIS COMPANION JUSTICES The humble petition of the Petitioner above named MOST RESPECTFULLY SHEWETH: 1. The Petitioner is an Advocate by profession and has been practicing in various courts of Delhi since 2007 and is invoking the extraordinary writ jurisdiction of this Honble Court for quashing the Standing Order No 53 dated 27-022013 passed by the -Respondent No-1. The Petitioner has no personal interest in the litigation and that the petition is not guided by self gain or for gain of any other person/institution/body and that there is no motive other than of public interest in filing the writ petition.

2. The Petitioner has been visiting Jail to meet his Clients lodged in Tihar Jail. Before passing the impugned order, the Legal Interview with inmates was done on all days from Monday to Friday (except holidays) and later after passing the impugned order, the same has been unlawfully restricted to One Legal Interview per week. Since the Petitioner has been visiting Tihar Jail for Legal Interview during his Practice as an Advocate. The Petitioner has noticed various problems suffered by the Advocates, who visit Jail for Legal Interview. As a matter of fact, due to the problems narrated hereinafter in the subsequent paras of the present petition, to visit in Jail for Legal Interview is regarded as disrespectful amongst the Legal community. The Petitioner came to

know about the impugned order, which is against the rights of the prisoners to seek Legal Advice and against the provisions of the constitution of India.

3. That the present Petition involves the rights of the prisoners, who are incapacitated due to being in custody. Their right to seek legal advice for pending matters is restricted by way of impugned order. Further the present petition also prays for seeking guidelines/directions to the Jail Authorities for providing better facilities to the Advocates, who visit Jail for the purpose of Legal Interview e.g. providing proper place to sit, drinking water, Parking/Entry Sticker for vehicles etc.

4. That the respondents already arrayed in the memo of parties are only concerned parties. The Respondent No-3 and Respondent No-4 are body of Advocates, who may provide assistance to this Honble Court for framing guidelines in the present matter.

5. The Petitioner came to know about the impugned standing order during his visits to Tihar Jail. The impugned order has been passed with utmost arbitrariness and there is no just and appropriate ground to justify the passing of such impugned order. It is pertinent to mention here that there are 10 Jails in Tihar Jail including Rohini Jail and Counsels who visit Tihar Jail are required to park their vehicle outside the gate and to travel

1 or 1-1

Km depending upon the

Jail they wish to go for Legal Interview. Further, Counsels are required to wait outside the Jail for 30 minutes atleast or more than that depending upon the discretion of Jail Authorities and then they are permitted to go inside. All Advocates, who wish to go for Legal Interview are required to write an application for legal interview with photocopy of their Photo Id Card and attested Vakalatnama of inmate. By way of the present Petition, the Petitioner also prays that appropriate directions be passed to the Respondents to give proper respect and dignified treatment be given to the Counsels, who visit Tihar Jail for Legal Interview. More Particularly because most of the Advocates, who visit Jail for Legal Interview are Young Advocates and the hostile treatment Jail Administration adversely affects the dignity of the Legal Profession. The Petitioner has the means to pay the costs, if any, imposed by the Court and the Petitioner undertakes to pay the same if so imposed. 6. The Copy of the Standing Order No 53 dated 27-02-2013 ANNEXURE P-1. The relevant portion of the same is reproduced herein below for the sake of ready reference:a) Normally, an advocate should be allowed one interview per week with his/her Client prisoner in the jail as per routine practice.

Legal

Interview

in

exceptional

circumstances can be allowed for the second time in a week with the prior approval of the Law Officer, PHQ. b) A family member, who is an advocate cannot come for Legal Interview during evening hours. Such members can conduct interview during family interview timings. c) Only such Legal Interview should be allowed where the Advocate is holding the Power of Attorney executed by the Prisoner and attested by either the Jail

Superintendent/Dy. Superintendent or Court. 7. The present Petition is being filed to prevent the further harassment, torture being caused to advocates due to the impugned standing order, which is bad in law and contrary to the constitutional provisions and the guidelines/rules framed by the Respondent No-3 and 4 and also contrary to the policy of the Respondent No.- 2 to secure the operation of Legal System that promotes Justice on the basis of equal opportunity. 8. That the Petition involves significant issues pertaining to The rights of Convicted/Under-trial prisoners and more particularly the right of the prisoner to have legal interview with their advocates/counsels/legal practitioners and seek Legal Advice. PROVISIONS INVOLVING THE PRESENT CASE:ARTICLE 14 (EQUALITY BEFORE LAW): -

The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. ARTICLE 19 (PROTECTION OF CERTAIN RIGHTS REGARDING THE FREEDOM OF SPEECH ETC;) g) To Practice any profession, or to carry on any occupation, trade or business ARTICLE 21(PROTECTION OF LIFE AND PERSONAL LIBERTY):No Person shall be deprived of his life or personal liberty except according to procedure established by law.

ARTICLE 22(1) (PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES):1) No Person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a Legal Practitioner of his choice. ARTICLE 39-A (EQUAL JUSTICE AND FREE LEGAL AID) The State shall secure that the operation of the Legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

SECTION

303

OF

THE

CODE

OF

CRIMINAL

PROCEDURE

Right of any person against whom proceedings are instituted to engage Pleader of his own choice.

SECTION

304

OF

THE

CODE

OF

CRIMINAL

PROCEDURE Legal Aid to accused at States expense in certain cases.

SECTION 126 OF THE EVIDENCE ACT, 1872 Privilege Communication between Client and his Lawyers

GROUNDS A. Because the impugned Standing Order No 53 dated 27-022013 is contrary to law.

B.

Because the prisoners/under-trials are entitled to the protection provided under Article 14 and Article 21 of the Constitution of India as held by the Honble Supreme Court of India in Sumit Batra Vs Delhi AdministrationAIR 1978 SC 1675.

C.

Because the provisions of Legal Aid for under trial or convicted prisoners, is sanctioned by Article 14 read with Article 39-A as held by the Honble Supreme Court of India in Sheela Barse Vs. State of Maharashtra AIR 1983 SC 378

D. Because the constitution of India provides that the opportunities for securing justice shall not be denied to any citizen by reason of economic or other disabilities.

E.

Because considering the need to secure the operation of Legal System, which would promote justice, 42nd amendment was brought in the Constitution of India.

F.

Because curtailing the right of any prisoner under the garb of impugned standing order to have Legal Interview once a week is bad in law and against the constitutional provisions.

G. Because curtailing the right of prisoner to have Legal Interview with family member (who is also advocate) is also against the constitutional provisions.

H. Because there is no such prohibition in law or any guideline(s)/rule(s) framed by the Respondent No-3, which prohibits any Advocate from accepting brief of a family member and/or relative.

I.

Because on one hand, the Government claims to provide Free Legal Aid to all prisoners, whether under-trial or convicted but the impugned order is against the very spirit and put restrictions on advocates to have legal meeting only once in week.

J.

Because there is no legal justification in passing such impugned order.

K. Because the said impugned order has not been passed in consultation with either Respondent No-2 or 3.

L.

Because the impugned order is bad as the same cannot justify the situation when the convict/under-trial has multiple cases and require different lawyers to defend the case separately and all the cases cannot be discussed on one single day with all the Lawyers.

M. Because the impugned order is bad as the same cannot justify the situation when a convict or undertrial has multiple cases and wishes to engage same Lawyer to defend such cases.

N. Because the very purpose of Legal Interview is to ensure justice to everyone and by restricting the same to only once in a week is against the spirit of law.

O. Because a family member, who is Lawyer is in best position to understand the case and by putting restrictions by way of impugned order on family members not to meet inmate during Legal Interview timing is bad in law.

P.

Because the impugned order does not justify why and how discrimination can be made between a lawyer and a family member, who is a lawyer.

Q. Because a prisoner has right to engage lawyer of his/her own choice.

R.

Because the impugned Standing order has been passed by the Respondent No-1, neither on the basis of any rationale nor considering the above said constitutional provisions.

S.

Because under the garb of the above said Standing Order the Petitioner has suffered unnecessary harassment and it is in the interest of justice to prevent further harassment to the Petitioner or any other advocate in future.

T.

Because before passing the impugned Standing Order, the Advocates/Legal Practitioners were allowed to meet the inmates on all days except Holidays and Saturday/Sunday.

U. Because the time of Legal Interview permitted by the Respondent No-1 is about one hour, which itself is not sufficient for a Counsel to take proper instructions within that period, and putting an arbitrary restriction permitting one Legal Interview in week is against the constitutional provisions to promote justice.

V. Because even otherwise the Respondent No-3 can take appropriate action against the Advocate/Counsel in case the provision is misused.

W. Because the refusal to allow the counsel to meet the inmate for the purpose of legal interview on the ground that he/she is related to the inmate is unjust, arbitrary and against the cardinal principle of natural justice and cannot be sustained.

X. Because it is the constitutional right of the inmate to engage a counsel of his own choice and the said constitutional right cannot be vitiated by virtue of an administrative standing order.

Y. Because there is nothing unusual in engaging a counsel, who is related to a litigant and rather it is the most usual and natural practice.

Z.

Because singling out an Advocate who is relative of the inmate on the ground that he is related to the counsel is gross abuse of his legal rights and principle of equity before law.

AA. Because the Government is spending crores to ensure proper legal aid to any litigant, specially the one, who is incarcerated. There are nominated jail counsels to assist and guide the inmates with their cases and on any given day jail counsel are available in each jail premises to assist the inmates with their cases.

BB. Because The Legal Aid Authority is working too hard to ensure proper legal assistance to the litigants who cannot afford a private counsel therefore it is beyond

comprehension as to why the jail authorities are biased towards the inmates, who have engaged private counsel.

CC. Because the counsels appointed by the Legal Aid Authority are allowed to take their vehicles inside the jail and are granted immediate access inside the jail, whereas the private counsel have to walk long distances to reach the jail where their clients are lodged and then they are made to wait for atleast 30-45 minutes under the Sun without any designated place to wait or chair to sit, outside the jail, before they are called in and offered a place to sit and meet their client. The private counsel do not prefer to visit the jail to meet their clients for the purpose of legal interview and seek proper instructions due to such hostile policies adopted by the jail administration towards them and the inmates suffer due to such discriminatory practices adopted by the jail authorities as no seasoned counsel would wish to visit the place, where he is not welcome and is rather being humiliated.

DD. Because each time a counsel complains or raises this issue of discrimination and hostility, the jail officials come up with a standard reply saying that the private counsel are

getting paid to visit the jail to meet their clients for the purpose of legal interview so they have no reason to complain. It transpires from the above facts that the jail authorities encourage the inmates to engage a legal aid counsel, if they want regular access to their counsel and in turn wants to burden the Government to spend public money for no just cause.

EE. Because the Respondent No-1 takes appropriate measures of security i.e. the Counsels have to undergo security check before entering into Jail thus the impugned order cannot be justified on ground of security reasons. FF. Because the impugned standing order is otherwise bad in law and the same is liable to be set-aside. 9. The Petitioner craves indulgence of this Honble Court to raise any other or further ground(s) during the course of argument.

10.The Petitioner has not filed any other or similar petition in this Honble Court or any other Court claiming the same relief.

PRAYER It is therefore most respectfully prayed that this Honble Court would be pleased to: i. Issue a writ in the nature of Certiorari and/or any other appropriate writ/order/direction, quashing the impugned Standing Order No 53 dated 27-02-2013 passed by the Respondent No. 1 so as to ensure that the provisions of constitutions are complied with.

ii.

Further directions be passed to the Respondent No-1 not to frame the rule(s)/guidelines pertaining to the Legal Interviews of Advocates with inmates without the consultation of the Respondent No- 3 and 4 and Particularly with Respondent No-4.

iii.

Respondent No-1 be further directed to make further arrangements to issue Car Entry/Pass to Advocate after duly verifying his particulars from the Respondent No-3 and 4 as the same is done for Counsels, who visit Jail under Legal Aid Scheme.

iv.

Respondent No-1 be further directed to make appropriate arrangements viz. sitting of advocates, drinking water etc while waiting outside Jail Gate during verification of their particulars to get into the Jail for Legal Interview.

v.

Pass any other appropriate order or direction as this Honble Court may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER ABOVENAMED AS IN DUTYBOUND SHALL EVER PRAY.

Filed by:-

AMIT SAHNI
Advocate (Petitioner in Person) 103, C K Daphtary Lawyers Chambers Tilak Lane, Supreme Court, N. Delhi-01 Chamber No. 493-A, Civil Side, Tis Hazari Courts, Delhi-110054 011-23913500, 09212513500, 09990513500

New Delhi Dated

IN THE HIGH COURT OF DELHI, AT NEW DELHI EXTRAORDINARY WRIT JURISDICTION Writ Petition (Criminal) No _______ of 2014 IN THE PUBLIC INTEREST LITIGATION OF: AMIT SAHNI Vs DIRECTOR GENERAL (PRISONS) & ORS

I Amit Sahni S/o Late Shri Harbans Lal Sahni aged about 31 years 493-A, Civil Side, Tis Hazari Courts, Delhi-110054 do hereby solemnly affirm and declare as under:

1. That I am the petitioner above named I have filed the present petition as a Public Interest Litigation.

2. I have gone through the Delhi High Court (public Interest Litigation) Rules, 2010 and do hereby affirm that the present Public Interest Litigation is in conformity thereof.

3. I petitioner have/has no personal interest in the litigation and neither myself nor anybody in whom I am/petitioner is interested would in any manner benefit from the relief sought in the present litigation save as a member of the General Public. This petition is not guided by self gain or gain of any person, institution, body and there is no motive other than of public interest in filing this petition.

4. I have done whatsoever inquiry/investigation which was in my power to do, to collect all data/material which was available and which was relevant for this court to entertain the present petition. I further confirm that I have not concealed in. the present petition any data/material /information which may have enabled this court to form an opinion whether to entertain this petition or not and/or whether to grant any relief or not.

DEPONENT

VERIFICATION:Verified at New Delhi on ____________ that the contents of my above Affidavit are true and correct to my knowledge and belief and nothing material has been concealed therefrom.

DEPONENT

ANNEXURE-A //TRUE TYPED COPY//

OFFICE OF THE DIRECTOR GENERAL (PRISONS) PRISON HEADQUARTERS: TIHAR: NEW DELHI

STANDING ORDER NO.53

Sub: Legal Interview of the prisoners It is provided in various provisions of the Delhi Jail Manual that a prisoner whether unconvicted should be allowed reasonable facilities of interview with his legal adviser (Advocate). relevant provision in this regard are reproduced below:Rule 42 & 43 of Delhi Prison (Prisoner Welfare Fund, Appeals, Petitions, Interview and Communication) Rule, 1988. 42. Every interview between an unconvicted prisoner and his legal adviser shall take place within sight, but out of hearing, of a jail official. The

43. When any person desires an interview with an unconvicted criminal prisoner in the capacity of the prisoners advocate he shall apply in writing, giving his name and address and stating to what branch of the legal profession he belongs and he must satisfy the Superintendent that he is the bonafide legal adviser of the prisoner with whom he seeks an interview and that he has legitimate business with him.

Keeping in view the above provisions and also to ensure that above Rules are not misused it is directed as under:-

1. Normally, an advocate should be allowed one interview per week with his/her client prisoner in the jail as per routine practice. Legal interview in exceptional circumstances can be allowed for the second time in a week with the prior approval of the Law Officer, PHQ.

2. A family member, who is an advocate cannot come for legal interview during evening hours. Such members can conduct interview during family interview timings.

3. Only such legal interview should be allowed where the Advocate is holding the Power of Attorney executed by the prisoner and attested by either the jail Superintendent / Dy. Supdt. or Court.

Sd/(VIMLA MEHRA) DIRECTOR GENERAL (PRISONS) All Superintendent Jails U.O.No. PS/DG(P)/2013/

Copy for information to:1. DIG (P)