Judgement

CHANDRACHUD, J.:- This is a group of three writ petitions under Article 32 of the Constitution.

2. D.Bhuvan Mohan Patnaik, the petitioner in Writ Petition No.295 of 1974 is undergoing the sentences of 4 1/2 years and 5 1/2 years awarded to him in two sessions cases. He is also an undertrial prisoner in what is known as the Parvatipuram Naxalite Conspiracy Case. Nagabhushan Patnaik, who is the petitioner in Writ Petition No. 296 of 1974 was sentenced to death by the learned II Additional Sessions Judge, Vishkhapatnam, but that sentence was commuted by the President to life imprisonment. P. Hussainar, the petitioner in Writ Petition No. 297 of 1974, is undergoing the sentence of imprisonment for life imposed by the same learned Judge. He is also an under-trial prisoner in the Parvatipuram Case. The three petitioners are undergoing the sentences in the Central Jail at Visakhapatnam.

3. We are not concerned with any evaluation of the politcal beliefs of the petitioners who claim to be naxalites nor with the legality of the sentences imposed on them nor indeed with the charges on which two of them are being tried. The only reliefs which they ask for are : (1) that the armed police guards posted around the jail should be removed and (2) that the livewire electrical mechanism fixed on ton of the jail wall should be dismantled.

4. Mr. Garg who appears on behalf of the petitioners contends that even the discipline of the prison must have the authority of law and that there should be a sort of "iron curtain" between the prisoners and the police so that convicts and undertrial prisoners may be truly free from the influence and tyranny of the police.

5. S.3(1) of the Prisons Act, 9 of 1894, defines prison to mean any jail or place used permanently or temporarily for the detention of prisoners, including "all lands and buildings appurtenant thereto". The Superintendent of the Central Jail, Visakhapatnam, who is the 3rd respondent to the petitions, has filed an affidavit stating that the usual watch and ward staff of the jail having been found to be inadequate, the services of the Andhra Pradesh Special Police Force had to be requisitioned to guard the jail from outside. The affidavit shows that these policemen live in huts built on a part of the vacant jail land and that the officers of the Force are accommodated in the "Jail Club" immediately outside the jail. Their office is situated in a block outside the jail, which was meant to be used as a waiting room for visitors wishing to meet the prisoners. The argument of Mr. Garg is that since prison includes lands appurtenant thereto, the members and officers of the Andhra Pradesh Special Police Force must, on the affidavit of the third respondent, be held to occupy a part of the prison and that must be prevented as it is calculated to cause substantial interference with the exercise by the prisoners of their fundamental rights.

6. Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise posses. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practice" 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.

7. In State of Maharashtra v. Prabhakar Pandurang, (1966) 1 SCR 702 a person who was detained by the Government of Maharashtra under Rule 30 (1)(b) of the Defence of India Rules, 1962 wrote, while