Supreme Court of India 1988 (I) Bom.

Cr 58

Sheela Barse vs State of Maharashtra

Ranganath Mishra and Murari Mohan Dutt JJ.

1. Ranganath, J. Petition is a Bombay based free lance journalist who had sought
permission to interview women prisoners in the Maharashtra jails and on 6.5.1982.
The inspector-General of Prisons of the State permitted her to do so in respect
of female prisoners lodged in the Bombay Central Jail, the Yerwada Central Jail at
Pune and the Kolhapur District Jail. When the petitioner started tape recording her
interviews with the prisoners at the Bombay Central Jail, she was advised instead to
keep notes only of interviews. When the petitioner raised objection on this score,
the Inspector-General of Prisons orally indicated that he had changed his mind. Later,
the petitioner was informed that grant of permission to have interview was a matter
of discretion of the Inspector-General and such interviews are ordinarily allowed to
research scholars only. Petitioner has made grievance over the withdrawal of the
permission and has pleaded that it is the citizens right to know if Government is
administering the jails in accordance with law. Petitioners letter was treated as a writ
petition under Article 32 of the Constitution.

2. Return has been made to the rule and the Inspector-General of Prisons in his
affidavit has pleaded that the petitioner is a free lance journalist and is not employed
by any responsible newspaper. The permission issued in favour of the petitioner was
under administrative misunderstanding and mistaken belief and was in contravention
of the Maharashtra Prison Manual. When this fact was discovered the permission
was withdrawn. It has been pleaded that interview with prisoners is governed by the
rules made in the Maharashtra Prison Manual and the petitioner does not satisfy the
prescription therein so as to justify grant of permission for having interviews with the
prisoners. The Inspector General wrote a letter to the petitioner on 31st May, 1982,
explaining therein that normally the prison authorities do not allow interviews with
the prisoners unless the person seeking interview is a research scholar studying for
Ph.D. or intends to visit the prison as a part of his field work of curriculum prescribed
for post-graduate course etc. The letter further indicated that there was no rule for
permitting interviews except to the relatives and legal advisers for facilitating defence of
prisoners. The Inspector-General further indicated in his letter that there was no
inherent right of journalists to elicit information from prisoners.
3. The counter affidavit further indicated that the State Government has prescribed a
set of rules known as the Maharashtra visitors of Prisons Rules, 1962. A Board of
Visitors is constituted for every jail and the Board consists of both ex-officio visitors
and non-official visitors appointed by the State Government. The members of
the Board are expected to inspect the barracks, cell wards, work sheds and other
buildings; ascertain or make enquiries about the health, cleanliness, security of
prisoners and examine registers of convicted and undertrial prisoners, punishment
books, other records relating to prisoners, attend to representations objections etc.
made by prisoners and make entries in the visitors book about their visits. It was
finally indicated in the counter affidavit that the petitioner was an amateur journalist
and had published certain articles in the newspapers and magazines without realizing
the impact thereof; many of such allegations and the so-called hearsay stories said to
have been collected from the undertrial were one-sided and nothing but exaggeration
of facts. Such articles written by her were defamatory, irresponsible and no mature
journalist would have published such reckless articles.

4. We have heard Mr. Salman Khurshid Ahmed for the petitioner and Mr. Bhasme for the
State of Maharashtra and have considered the written submissions filed on behalf of
both in furtherance of their submission.
5. According to the petitioner and her Counsel Articles 19(1)(a) and 21 guarantee to
every citizen reasonable access to information about the institutions that formulate,
enact, implement and enforce the laws of the land. Every citizen has a right to receive
such information through public institutions including the media as it is physically
impossible for every citizen to be informed about all issues of public importance
individually and personally. As a journalist, the petitioner has the right to collect
and disseminate information to citizens. The press has a special responsibility in
educating citizens at large on every public issue. The conditions prevailing in the
Indian prisons where both undertrial persons and convicted prisoners are housed is
directly connected with Article 21 of the Constitution. It is the obligation of society to
ensure that appropriate standards are maintained in the jails and humane conditions
prevail therein. In a participatory democracy as ours unless access is provided to the
citizens and the media in particular it would not be feasible to improve the conditions
of the jails and maintain the quality of the environment in which a section of the
population is housed segregated from the rest of the community.

6. On behalf of the State it has been contended that neither of the Articles is attracted to
a matter of this type. The rules made by the Government are intended to safeguard
the interests of the prisoners. The Board contemplated under the Rules consists of
several public both executive and judicial. Apart from that there is a body of non-offi
cial visitors as provided in Rule 5 of the Maharashtra Rules. Detailed provisions
have been made in the rules as to the duties of the visitors and the manner in which
the visitors have to perform the same. It has been further contended that idea of
segregating the prisoners from the community is to keep the prisoner under strict
control and cut off from the community. If unguided and uncontrolled right of visit is
provided to citizens it would be difficult to maintain discipline and the very purpose
of keeping the delinquents in prison would be frustrated
7. That Articles 19(a) of the Constitution guarantees to all citizens freedom of speech and
expression is not the point in issue, but the enlarged meaning given to the provisions
of Articles 21 by this Court would, however, be relevant. The meaning given to the
term life will cover the living condition prevailing in jails...

8. The Constitution Bench quoted with approval from (Munn Vs. Illinois), 1877(94), US
113, to emphasise the quality of life covered by Article 22. The same Constitution
Bench judgement further states:

It was also pointed out in this case that life included the right to live with human
dignity. In A.K. Roy etc. Vs. Union of India & another (1982) 2 SCR 272 the word was
found:
to include the necessary of right such as nutrition, clothing, shelter over the head,
facilities for reading, writing, interviews with members of the family and friends,
subject, of course to prison regulation, if any.....
9. Counsel for the petitioner relied upon the observations of this Court in the case of
(S.P. Gupta & others Vs. Union of India & others) 1982(2) SCR 365 at page 598, where
it was said:
Now it is obvious from the Constitution that we have adopted a democratic form of
Government. Where a society has chosen to accept democracy as its creedal faith, it
is elementary that the citizens ought to know what their Government is doing. The
citizens have a right to decide by whom and by what rules they shall be governed
and they are entitled to call on those who govern on their behalf to account for their
conduct. No democratic Government can survive without accountability and the
basic postulate of accountability is that the people should have information about the
functioning of the government. It is only if people know how Government is functioning
that they can fulfill the role which democracy assigns to them and make democracy
a really effective participatory democracy. Knowledge, said James Madison, will for
ever govern ignorance and a people who mean to be their own governors must
arm themselves with the power knowledge gives. A popular Government without
popular information or the means of obtaining it, is but a prologue to a farce or
tragedy or perhaps both. The citizens right to know the facts, the true facts, about
the administration of the country is thus one of the pillars of a democratic State. And
that is why the demand for openness in the Government is increasingly growing in
different parts of the world.
The demand for openness in the Government is based principally on two reasons. It
is now widely accepted that democracy does not consist merely in people exercising
their franchise once in five years to choose their rulers, and once the vote is cast,
then retiring in passivity and not taking any interest in the Government. Today it is
common ground that democracy has a more positive content and its orchestration
has to be continuous and pervasive. This means inter alia that people should not
cast intelligent and rational votes but should also exercise sound judgement on the
conduct of the Government and the merits of public policies, so that democracy does
not remain merely a sporadic exercise in voting but becomes a continuous process
of Government an attitude and habit of mind. But this important role people can
fulfill in a democracy only if it is an open Government where there is a full access to
information in regard to the functioning of the Government.

10. We endorse these observations as a correct statement of the position. We also

reiterate the view expressed in several decision of this Court that life in Article 21
has the extended meaning given to the word and those citizens who are detained
in prisons either as undertrial or as convicts are also entitled to the benefit of the
guarantees subject to reasonable restrictions.

11. Judicial notice should be taken of the position that on account of intervention of
Courts there has been a substantial improvement in the condition prevailing in jails.
The provisions of Jail Manuals have undergone change, the authorities connected
with the jail administration have changed their approach to administration and
method of control, there has been a new awakening both in citizens in general and
the people detained in jail. Indisputably intervention of the Courts has been possible
on account of petitions and protests lodged from jails; news items published in the
Press. We may not be taken to mean that the rule prescribed for administration
of prisons are of no value at all. Yet until the appropriate attitude grows in the
administrative establishment the provisions in the several manuals applicable to the
jails in the country would not provide adequate safeguard for implementation of the
standards indicated in judicial decisions. It is, therefore, necessary that public gaze
should be directed to the matter and the pressmen as friends of the society and public
spirited citizens should have access not only to information but also interviews. Prison
administrators have the human tendency of attempting to cover up their lapses and
so shun disclosure thereof. As an instance, we would like to refer to incidents in the
Tihar Jail located at the countrys capital under the very notice of the responsible
administrators.

12. In such a situation we are of the view that public access should be permitted. We have
already pointed out that the citizen does not have any right either under Article 19(a)
or Article 21 to enter into the jails for collection of information but in order that the
guarantee of the fundamental right under Article 21 may be available to the citizens
detained in the jails, it becomes necessary to permit citizens access to information
as also interviews with prisoners. Interviews become necessary as otherwise the
correct information may not be collected but such access has got to be controlled and
regulated.

13. We are, therefore, not prepared to accept the petitioners claim that she was entitled
to uncontrolled interviews. We agree with the submission of Mr. Bhasme for the
respondent that, as and when factual information is collected as a result of interview
the same should usually be cross-checked with the authorities so that a wrong picture
of the situation may not be published. While disclosure of correct information is
necessary, it is equally important that there should be disseminating of wrong
information. We assume that those who receive permission to have interviews will
agree to abide by reasonable restrictions. Most of the manuals provide restrictions
which are reasonable. As and when reasonableness of restrictions is disputed it would
be matter for examination and we hope and trust that such occasions would be indeed
rare. We see reason in the stand adopted by Mr. Bhasme relating to the objection of
his client about tape-recording by interviewers. There may be cases where such
tape-recording is necessary but we would like to make it clear that tape-recording should
be subject to special permission of the appropriate authority. There may be some
individuals or class of persons in prison with whom interviews may not be permitted
for the reasons indicated by this Court in the case of Prabha Dutt (supra). We may
reiterate that interviews cannot be forced and willingness of the prisoners by this
interviewed would always be insisted upon. There may be certain other cases where
for good reason permission may also be withheld. There are situation which can be
considered as and when they arise.

14. The petitioner is free to make an application to the prescribed authority for the
requisite permission and as and when such application is made, keeping the guidelines
indicated above, such request may be dealt with. There will be no order for costs.

Supreme Court of India 1983 (2) SCC 96

Sheela Barse vs State of Maharashtra

P.N. bhagwati , R.S. pathak, Amarendra Nath Sen,JJ

Bhagwati , J. This writ petition is based on a letter addressed by Sheela Barse, a journalist,
complaining of custodial violence to women prisoners whilst confined in the police lock up
in the city of Bombay. The petitioner stated in her letter that she interviewed fifteen women
prisoners in the Bombay Central Jail with the permission of the Inspector General of
Prisons between 11 and 17th May, 1982 and five out of them told her that they had been
assaulted by the police in the police lock up. Of these five who complained of having been
assaulted by the police, the petitioner particularly mentioned the cases of two, namely,
Devamma and Pushpa Paeen who were allegedly assaulted and tortured whilst they were in
the police lock up. It is not necessary for the purpose of this writ petition to go into the
various allegations in regard to the ill-treatment meted out to the women prisoners in the
police lock up and particularly the torture and beating to which Devamma and Pushpa
Paeen were said to have been subjected because we do not propose to investigate into the
correctness of these allegations which have been disputed on behalf of the State of
Maharashtra. But, since these allegations were made by the women prisoners interviewed
by the petitioner and particularly by Devamma and Pushpa Paeen and there was no reason
to believe that a journalist like the petitioner would invent or fabricate such allegations if
they were not made to her by the women prisoners, this Court treated the letter of the
petitioner as a writ petition and issued notice to the State of Maharashtra, Inspector General
of Prisons, Maharashtra, Superintendent, Bombay Central Jail and the Inspector General of
Police, Maharashtra calling upon them to show cause why the writ petition should not be
allowed. It appears that on the returnable date of the show cause notice no affidavit was
filed on behalf of any of the parties to whom show cause notice was issued and this Court
therefore adjourned the hearing of the writ petition to enable the State of Maharashtra and
other parties to file an affidavit in reply to the averments made in the letter of the petitioner.
This Court also directed that in the meanwhile Dr. (Miss) A.R. Desai, Director of College
of Social Work, Nirmala Niketan, Bombay will visit the Bombay Central Jail and interview
women prisoners lodged there including Devamma and Pushpa Paeen without any one else
being present at the time of interview and ascertain whether they had been subjected to any
torture or ill treatment and submit a report to this Court on or before 30th August, 1982. The
State Government and the Inspector General of Prisons were directed to provide all facilities to

Dr. Miss A.R. Desai to carry out this assignment entrusted to her. The object of assigning

this commission to Dr. Miss A.R. Desai was to ascertain whether allegations of torture and

ill-treatment as set out in the letter of the petitioner were, in fact, made by the women

prisoners including Devamma and Pushpa Paeen to the petitioner and what was the truth

in regard to such allegations. Pursuant to the order made by this Court, Dr. Miss A.R. Desai

visited Bombay Central prison and aft er interviewing women prisoners lodged there, made

a detailed report to this Court. The Report is a highly interesting and instructive socio-legal

document which provides an insight into the problems and difficulties facing women

prisoners and we must express our sense of gratitude to Dr. Miss A.R. Desai for the trouble

taken by her in submitting such a wonderfully thorough and perceptive report. We are
not concerned here directly with the conditions prevailing in the Bombay Central Jail or

other jails in the State of Maharashtra because the primary question which is raised in the

letter of the petitioner relates to the safety and security of women prisoners in police lock

up and their protection against torture and ill-treatment. But even so we would strongly

recommend to the Inspector General of Prisons, Maharashtra that he may have a look at

this Report made by Dr. Miss A.R. Deasai and consider what further steps are necessary

to be taken in order to improve the conditions in the Bombay Central Jail and other jails in

the State of Maharashtra and to make life for the women prisoners more easily bearable

by them. There is only one matter about which we would like to give directions in this

writ petition and that is in regard to the need to provide legal assistance not only

to women prisoners but to all prisoners lodged in the jails in the State of Maharashtra.

We have already had occasion to point out in several decisions given by this Court that

legal assistance to a poor or indigent accused who is arrested and put in jeopardy of

his life or personal liberty is a constitutional imperative mandated not only by Article

39 but also by Articles 14 and 21 of the Constitution. It is a necessary sine qua non of

justice and where it is not provided, injustice is likely to result and undeniably every act

of injustice corrodes the foundations of democracy and rule of law, because nothing

rankles more in the human heart than a feeling of injustice and those who suffer and

cannot get justice because they are priced out of the legal system, lose faith in the legal

process and a feeling begins to overtake them that democracy and rule of law are merely

slogans or myths intended to perpetuate the domination of the rich and the powerful and

to protect the establishment and the vested interests. Imagine the helpless condition

of a prisoner who is lodged in a jail who does not know to whom he can turn for help in

order to vindicate his innocence or defend his constitutional or legal rights or to protect himself
against torture and ill-treatment or oppression and harassment at the hands of

his custodians. lt is also possible that he or the members of his family may have other

problems where legal assistance is required but by reason of his being incarcerated, it

may be difficult if not impossible for him or the members of his family to obtain proper

legal advice or aid. It is therefore absolutely essential that legal assistance must be made
available to prisoners in C: jails whether they be under-trial or convicted prisoners.

The Report of Dr. Miss A.R. Desai shows that there is no adequate arrangement for

providing legal assistance to women prisoners and we dare say the situation which

prevails in the matter of providing legal assistance in the case of women prisoners must

also be the same in regard to male prisoners. It is pointed out in the Report of Dr. Miss

A.R. Desai that two prisoners in the Bombay Central Jail, one a German national and the

other a Thai national were duped and defrauded by a lawyer, named Mohan Ajwani who

misappropriated almost half the belongings of the German national and the jewellery

of the Thai national on the plea that he was retaining such belongings and jewellery for

payment of his fees. We do not know whether this allegation made by these two German

and Thai women prisoners is true or not but, if true, it is a matter of great shame for

the legal profession and it needs to be thoroughly investigated. The profession of law

is-a noble profession which has always regarded itself as a branch of social service and

a lawyer owes a duty to the society to help people in distress and more so when those

in distress are women and in jail. Lawyers must realise that law is not a pleasant retreat

where we are concerned merely with mechanical interpretation of rules made by the

legislature but it is a teeming open ended avenue through which most of the traffic of

human existence passes. There are many casualties of this traffic and it is the function

of the legal profession to help these casualties in a spirit of dedication and service. It is

for the lawyers to minimize the numbers of those causalities who still go without legal

assistance. The lawyers must positively reach out to those sections of humanity who are

poor, illiterate and ignorant and who, when they are placed in a crisis such as an accusation

of crime or arrest or imprisonment, do not know what to do or where to go or to whom

to turn. If lawyers, instead of coming to the rescue of persons in distress, exploit and prey

upon them, the legal profession will come into disrepute and large masses of people in

the country would lose faith in lawyers and that would be destructive of democracy and

rule of law. If it is true-that these two German and Thai women prisoners were treated

by Mohan Ajwani in the manner alleged by them-and this is a question on which we do

not wish to express any opinion ex parte it deserves the strongest condemnation. We
would therefore direct that the allegations made by the two German and Thai women

prisoners as set out in paragraph 9.2 of the Report of Dr. Miss A.R. Desai be referred to the
Maharashtra State Bar Council for taking such action as may be deemed fi t.

But, this incident highlights the need for setting up a machinery for providing legal

assistance to prisoners in jails. There is fortunately a legal aid organisation in the State of

Maharashtra headed by the Maharashtra State Board of Legal Aid and Advice which has

set up committees at the High Court and district levels. We would therefore direct the

Inspector General of Prisons in Maharashtra to issue a circular to all Superintendents of

Police in Maharashtra requiring them-

(1) to send a list of all under-trial prisoners to the Legal Aid Committee of the district

in which the jail is situate giving particulars of the date of entry of the under-trial

prisoners in the jail and to the extent possible, of the offences with which they are

charged and showing separately male prisoners and female prisoners

(2) to furnish to the concerned District Legal Aid Committee a list giving particulars of

the persons arrested on suspicion under section 41 of the Code of Criminal Procedure

who have been in jail beyond a period of 15 days.

(3) to provide facilities to the lawyers nominated by the concerned District Legal Aid

Committee to enter the jail and to interview the prisoners who have expressed their

desire to have their assistance.

(4) to furnish to the lawyers nominated by the concerned District Legal Aid Committee

whatever information is required by them in regard to the prisoners in jail.

(5) to put up notices at prominent places in the jail that lawyers nominated by the

concerned District Legal Aid Committee would be visiting the jail on particular days

and that any prisoner who desires to have their assistance can meet them and avail
of their counselling services; and

(6) to allow any prisoner who desires to meet the lawyers nominated by the concerned

District Legal Aid Committee to interview and meet such lawyers regarding any matter

for which he requires legal assistance and such interview should be within sight but

out of hearing of and jail official.

We would also direct that in order to effectively carry out these directions which are

being given by us to the Inspector General of Prisons, the Maharashtra State Board of

Legal Aid and Advice will instruct the District Legal Aid Committees of the districts in which

jails are situate to nominate a couple of selected lawyers practising in the district court

to visit the jail or jails in the district atleast once in a fortnight with a view to ascertaining

whether the law laid down by the Supreme Court and the High Court of Maharashtra in regard
to the rights of prisoners including the right to apply for bail and the right to legal

aid is being properly and effectively implemented and to interview the prisoners who

have expressed their desire to obtain legal assistance and to provide them such legal

assistance as may be necessary for the purpose of applying for release on bail or parole

and ensuring them adequate legal representation in courts, including filing or preparation

of appeals or revision applications against convictions and legal aid and advice in regard

to any other problems which may be facing them or the members of their families. The

Maharashtra State Board of Legal Aid & Advice will call for periodic reports from the

district legal aid committees with a view to ensuring that these directions given by us

are being properly carried out. We would also direct the Maharashtra State Board of

Legal Aid and Advice to pay an honorarium of Rs. 25/- per lawyer for every visit to the jail

together with reasonable travelling expenses from the court house to jail and back. These

directions in so far as the city of Bombay is concerned, shall be carried out by substituting

the High Court Legal Aid Committee for the District Legal Aid Committee, since there is no

District Legal aid committee in the city of Bombay but the Legal Aid Programme is carried

out by the High Court Legal Aid Committee. We may point out that this procedure is
being followed with immense benefit to the prisoners in jails by the Tamil Nadu State

Legal Aid & Advice Board. We may now take up the question as to how protection can be

accorded to the women prisoners in police lock ups. We put forward several suggestions to

the learned advocate appearing on behalf of the petitioner and the State of Maharashtra

in the course of the hearing and there was a meaningful and constructive debate in court.

The State of Maharashtra offered its full co-operation to the Court in laying down the

guidelines which should be followed so far as women prisoners in police lock ups are

concerned and most of the as suggestions made by us were readily accepted by the State

of Maharashtra. We propose to give the following directions as a result of meaningful and

constructive debate in court in regard to various aspects of the question argued before

us.

(i) We would direct that four or five police lock ups should be selected in reasonably good

localities where only female suspects should be kept and they should be guarded by

female constables. Female suspects should not be kept in police lock up in which

male suspects are detained. The State of Maharashtra has intimated to us that there

are already three cells where female suspects are kept and are guarded by female

constables and has assured the Court that two more cells with similar arrangements

will be provided exclusively for female suspects.

(ii) We would further direct that interrogation of females should be carried out only in

the presence of female police officers/constables.

(ii) Whenever a person is arrested by the police without warrant, he must be

immediately informed of the the grounds of his arrest and in case of every arrest

it must immediately be made known to the arrested person that he is entitled to

apply for bail. The Maharashtra State Board of Legal Aid & Advice will forthwith get

a pamphlet prepared setting out the legal rights of an arrested person and the State
of Maharashtra will bring out sufficient number of printed copies of the pamphlet in

Marathi which is the language of the people in the State of Maharashtra as also in

Hindi and English and printed copies of the pamphlet in all the three languages shall

be affixed in each cell in every police lock up and shall be read out to the arrested

person in any of the three languages which he understands as soon as he is brought

to the police station.

(iv) We would also direct that whenever a person is arrested by the police and taken

to the police lock up, the police will immediately give an intimation of the fact of

such arrest to the nearest Legal Aid Committee and such Legal Aid Committee will

take immediate steps for the purpose of providing legal assistance to the arrested

person at State cost provided he is willing to accept such legal assistance. The State

Government will provide necessary funds to the concerned Legal Aid Committee for

carrying out this direction.

(v) We would direct that in the city of Bombay, a City Sessions Judge, to be nominated

by the principal Judge of the City Civil Court, preferably a lady Judge, if there is one,

shall make surprise visits to police lock ups in the city periodically with a view to

providing the arrested persons an opportunity to air their grievances and ascertaining

what are the conditions in the police lock ups and whether the requisite facilities are

being provided and the provisions of law are being observed and the directions given

by us are being carried out. If it is found as a result of inspection that there are

any lapses on the part of the police authorities, the City Sessions Judge shall bring

them to the notice of the Commissioner of Police and if necessary to the notice of the

Home Department and if even this approach fails, the City Sessions Judge may draw

the attention of the Chief Justice of the High Court of Mahrashtra to such lapses. This

direction in regard to police lock ups at the districts head quarters, shall be carried

out by the Sessions Judge of the district concerned.

(vi) We would direct that as soon as a person is arrested, the police must immediately

obtain from him the name of any relative or friend whom he would like to be informed

about his arrest and the police should get in touch with such relative or friend and

inform him about the arrest; and lastly

(vii) We would direct that the magistrate before whom an arrested person is produced

shall enquire from the arrested person whether he has any complaint of torture or

maltreatment in police custody and inform him that he has right under section 54

of the Code of Criminal Procedure 1973 to be medically examined. We are aware

that section 54 of the Code of Criminal Procedure 1973 undoubtedly provides for

examination of an arrested person by a medical practitioner at the request of the

arrested person and it is a right conferred on the arrested person. But very oft en the

arrested person is not aware of this right and on account of his ignorance, he is

unable to exercise this right even though he may have been tortured or maltreated

by the police in police lock up. It is for this reason that we are giving a specific

direction requiring the magistrate to inform the arrested person about this right of

medical examination in case he has any complaint of torture or mal-treatment in

police custody.

We have no doubt that if these directions which are being given by us are carried out

both in letter and spirit, they will afford considerable protection to prisoners in police

lock ups and save them from possible torture or ill-treatment. The writ petition will stand

disposed of in terms of this order.

In the decision in Sheela Barse Vs. Union of India AI R 1986 SC 1773, the
Supreme Court observed:

If a child is a national asset, it is the duty of the State to look aft er the child with
a view to ensuring full development of its personality. That is why all the statutes
dealing with children provide that a child shall not be kept in jail. Even apart from this
statutory prescription, it is elementary that a jail is hardly a place where a child should
be kept. There can be no doubt that incarceration in jail would have the effect of
dwarfing the development of the child, exposing him to baneful influences, coarsening
his conscience and alienating him from the society.

In Peoples Union for Civil Liberti es (PUCL) and Another vs. Union of India, (2004 (9)
SCC 580), the Supreme Court relying on Kartar Singhs case upheld the constitutional
validity of the various provisions of the Prevention of Terrorism Act, 2002 (POTA).

Supreme Court of India 2004 (9) SCC 580

Peoples Union for Civil Liberties & Another vs Union of India

S. Rajendra Babu and G.P. Mathur, JJ.

1. In this batch of Writ Petitions before us the Constitutional validity of various provisions
of the Prevention of Terrorism Act, 2002 (hereinafter POTA) is in challenge.
2. The Petitioners contended before us that since the provisions of POTA, in pith and
substance, fall under the Entry 1 (Public Order) of List II Parliament lacks legislative
competence. To authenticate this contention, the decision in Rehman Sagoo & Others v.
State of Jammu Kashmir, 1960 (1) SCR 680, is relied upon. According to them, the menace
of terrorism is covered by the Entry Public Order and to explain the meaning thereof, our
attention is invited to decisions in Romesh Thaper v. State of Madras, 1950 SCR 594,
Dr. Ram Manohar Lohia v. State of Bihar, 1966 (1) SCR 709, and Madhu Limaye v. SDM,
Monghyr, (1970) 3 SCC. 746. The Petitioners thus submitted that terrorist activity is
confined only to State(s) and therefore State(s) only have the competence to enact a
legislation.

The learned Attorney General refuting this contention submitted that acts of terrorism,
which are aimed at weakening the sovereignty and integrity of the country cannot be
equated with mere breaches of law and order and disturbances of public order or public
safety. He argued that the concept of sovereignty and integrity of India is distinct and
separate from the concepts of public order or security of State which fall under List II
enabling States to enact legislation relating to public order or safety affecting or relating to
a particular State. Therefore, the legislative competence of a State to enact laws for its
security cannot denude Parliament of its competence under List I to enact laws to safeguard
national security and sovereignty of India by preventing and punishing acts of terrorism.
Learned Attorney General distinguished the decision in Rehman Shagoo
and submitted that the legislation dealt with therein is fundamentally and qualitatively
different from POTA. He also argued before us that Rehman Shagoo cannot mitigate the
binding ratio and unanimous conclusion reached by this Court on the point of legislative
competence in Kartar Singh v. State of Punjab, 1994 (3) SCC 569 : 1994 (2) SCR 375, that
Parliament can enact such law.

In deciding the point of legislative competence, it is necessary to understand the contextual

backdrop that led to the enactment of POTA, which aims to combat terrorism. Terrorism
has become the most worrying feature of the contemporary life. Though violent behavior is
not new, the present day terrorism in its full incarnation has obtained a different character
and poses extraordinary challenges to the civilized world. The basic edifices of a modern
State, like - democracy, state security, rule of law, sovereignty and integrity, basic human
rights etc are under the attack of terrorism. Though the phenomenon of terrorism is
complex, a terrorist act is easily identifiable when it does occur. The core meaning of the
term is clear even if its exact frontiers are not. That is why the anti -terrorist statutes - the
earlier Terrorism and Disruptive Activities (Preventi on) Act, 1987 (TADA) and now
POTA do not define terrorism but only terrorist acts. (See : Hitendra Vishnu Thakur v.
State of Maharashtra, (1994) 4 SCC 602).

Paul Wilkinson, an authority on terrorism related works, culled out five major
characteristics of terrorism. They are:
1. It is premeditated and aims to create a climate of extreme fear or terror.
2. It is directed at a wider audience or target than the immediate victims of violence.
3. It inherently involves attacks on random and symbolic targets, including civilians.
4. The acts of violence committed are seen by the society in which they occur as
extra-normal,
in literal sense that they breach the social norms, thus causing a sense of
outrage; and
5. Terrorism is used to influence political behavior in some way - for example to force
opponents into conceding some or all of the perpetrators demands, to provoke an
over-reaction, to serve as a catalysis for more general conflict, or to publicize a political
cause.
In all acts of terrorism, it is mainly the psychological element that distinguishes it from
other political offences, which are invariably accompanied with violence and disorder.
Fear is induced not merely by making civilians the direct target of violence but also by
exposing them to a sense of insecurity. It is in this context that this Court held in Mohd.
Iqbal M. Shaikh v. State of Maharashtra, (1998) 4 SCC 494, that:

...it is not possible to give a precise definition of terrorism or to lay down what
constitutes terrorism. But... it may be possible to describe it as a use of violence when its
most important result is not merely the physical and mental damage of the victim
but the prolonged psychological effect it produces or has the potential of producing
on the society as a whole. ... if the object of the activity is to disturb harmony of
the society or to terrorize people and the society, with a view to disturb even tempo,
tranquility of the society, and a sense of fear and insecurity is created in the minds
of a section of society at large, then it will, undoubtedly be held to be terrorist act...

Our country has been the victim of an undeclared war by the epicenters of terrorism
with the aid of well-knit and resourceful terrorist organizations engaged in terrorist
activities in different States such as Jammu & Kashmir, North- East States, Delhi, West
Bengal, Maharashtra, Gujarat, Tamilnadu, Andhra Pradesh. The learned Attorney General
placed material to point out that the year 2002 witnessed 4038 terrorist related violent
incidents in J&K in which 1008 civilians and 453 security personnel were killed. The
number of terrorist killed in 2002 was 1707 out of which 508 were foreigners. In the year
2001 there were as many as 28 suicide attacks while there were over 10 suicide attacks in
2002 in which innocent persons and a large number of women and children were killed.
The major terrorist incidents in the recent past includes attack on Indian Parliament
on 13th December 2001, attack on Jammu & Kashmir Assembly on 1st October, 2001,
attack on Akshardham temple on 24th September 2002, attack on US Information Center
at Kolkatt a on 22nd January 2002, Srinagar CRPF Camp attack on 22nd November 2002,
IED blast near Jawahar Tunnel on 23rd November 2002, attack on Raghunath Mandir on
24th November 2002, bus bomb blast at Ghatkopar in Mumbai on 2nd December 2002,
att ack on villagers in Nadimarg in Pulwama District in Jammu Kashmir on the night of
23rd-24th March 2003 etc. There were attacks in Red Fort and on several Government
Installations, security forces camps and in public places. Gujarat witnessed gruesome
carnage of innocent people by unleashing unprecedented orgy of terror. People in Bihar,
Andhra Pradesh, and Maharashtra etc have also experienced the terror trauma. The latest
addition to this long list of terror is the recent twin blast at Mumbai that claimed about 50
lives. It is not necessary to swell this opinion by narrating all the sad episodes of terrorist
activities that the country has witnessed. All these terrorist strikes have certain common
features. It could be very broadly grouped into three.

1. Attack on the institution of democracy, which is the very basis of our country. (By
attacking Parliament, Legislative Assembly etc). And the attack on economic system
by targeting economic nerve centers.
2. Attack on symbols of national pride and on security / strategic installations. (eg. Red
Fort, Military installations and camps, Radio stations etc.)
3. Attack on civilians to generate terror and fear psychosis among the general populace.
The attack at worshiping places to injure sentiments and to whip communal passions.
These are designed to position the people against the government by creating a
feeling of insecurity.

Terrorist acts are meant to destabilize the nation by challenging its sovereignty and
integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear
and anarchism among common people, to tear apart the secular fabric, to overthrow
democratically elected government, to promote prejudice and bigotry, to demoralize
the security forces, to thwart the economic progress and development and so on. This
cannot be equated with a usual law and order problem within a State. On the other hand,
it is inter-state, inter-national or cross-border in character. Fight against the overt and
covert acts of terrorism is not a regular criminal justice endeavor. Rather it is defence
of our nation and its citizens. It is a challenge to the whole nation and invisible force of
Indian-ness that binds this great nation together. Therefore, terrorism is a new challenge
for law enforcement. By indulging in terrorist activities organized groups or individuals,
trained, inspired and supported by fundamentalists and anti -Indian elements were trying
to destabilize the country. This new breed of menace was hitherto unheard of. Terrorism is
definitely a criminal act, but it is much more than mere criminality. Today, the government
is charged with the duty of protecting the unity, integrity, secularism and sovereignty of
India from terrorists, both from outside and within borders. To face terrorism we need
new approaches, techniques, weapons, expertise and of course new laws. In the above
said circumstances Parliament felt that a new anti -terrorism law is necessary for a better
future. This parliamentary resolve is epitomized in POTA.

The terrorist threat that we are facing is now on an unprecedented global scale.
Terrorism has become a global threat with global effects. It has become a challenge to
the whole community of civilized nations. Terrorist activities in one country may take
on a transnational character, carrying out attacks across one border, receiving funding
from private parties or a government across another, and procuring arms from multiple
sources. Terrorism in a single country can readily become a threat to regional peace and
security owing to its spillover effects. It is therefore difficult in the present context to draw
sharp distinctions between domestic and international terrorism. Many happenings in
the recent past caused the international community to focus on the issue of terrorism
with renewed intensity.
Vishaka vs. State of Rajasthan
A VERY FAMOUS CASE of indian judiciary in which others owing to the gang rape of Bhanwari Devi
by a group of Thakurs as she attempted to stop a child marriage in their family. Bhanwari Devi was a
social worker (saathin) at rural level in a development programme initiated by State Government of
Rajasthan, aiming to curb the evil of child marriages in villages.

As part of her work, Bhanwari Devi, tried to stop Ramkaran Gujjars infant daughters marriage.
Nevertheless, marriage took place but Bhanwari Devi was not forgiven for her efforts to stop marriage.
She was subjected to social boycott, and in September 1992was gang raped by five men including
Ramkaran Gujjar in front of her husband. The days that followed were filled with hostility and
humiliation for Bhanwari and her husband. The only male doctor in the Primary Health Centre refused
to examine Bhanwari and the doctor at Jaipur only confirmed her age without making any reference to
rape in his medical report. At the police station too, the women constables taunted her throughout the
night. It was past midnight when the policemen asked Bhanwari to leave her lehenga behind as evidence
and return to her village. She was left with only her husbands bloodstained dhoti to wear. Their pleas to
let them sleep in the police station at night, were turned down.

The trial court acquitted the accused, but Bhanwari was determined to fight further and get justice. She
said that she had nothing to be ashamed of and that the men should be ashamed due to what they had
done. Her fighting spirit inspired fellow saathins and womens groups countrywide. In the months that
followed they launched a concerted campaign for justice for Bhanwari. On December 1993, the High
Court said, it is a case of gang-rape which was committed out of vengeance.

This provoked womens groups and NGOs to file a petition in the Supreme Court of India. As part of
this campaign, the groups had filed a petition in the Supreme Court of India, under the name Vishaka,
asking the court to give certain directions regarding the sexual harassment that women face at the
workplace. The result is the Supreme Court judgement, which came on 13th August 1997, and gave the
Vishaka guidelines.

Supreme Court judgment in the case of Vishaka Vs. State of Rajasthan regarding sexual harassment of
working women.

In the case of Vishaka and Ors Vs. State of Rajasthan and Ors. (JT 1997 (7) SC 384), the Honble
Supreme Court has laid down guidelines and norms to be observed to prevent sexual harassment of
working women.

It has been laid down in the judgment above-mentioned that it is the duty of the employer or other
responsible persons in work places or other institutions to prevent or deter the commission of acts of
sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of
sexual harassment by taking all steps required.
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether
directly or implication) as :-

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;
The above guidelines (decision No. 25) inter-alia stipulate for the creation of an appropriate complaint
mechanism in every organization for redressal of the complaints made by the victims. It has come to the
notice of this Department that in one of the Central Government Offices, the Committee constituted for
the purpose was headed by an official of the rank of Upper Division Clerk. As an official not sufficiently
higher in rank may not be able to express views independently/freely especially when the perpetrator is
holding an higher position, the arrangement makes mockery of the system. It is, therefore, requested that
the Committee constituted for redressal of the complaints by the victims of sexual harassment should be
headed by an officer sufficiently higher in rank, so as to lend credibility to the investigations.