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2018 Supreme(Del) 1784
IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
Asadullah Akhtar - Petitioner
Versus
Govt. of Delhi & Ors. - Respondents
W.P.(CRL) 2306 of 2018
Decided On : 03-08-2018
For the Petitioner:Mr. Shariq Iqbal, Advocate.
For the Respondents:Ms. Jyoti Babbar, Advocate for Mr. Rajesh Mahajan, ASC with SI Alok, PS Special Cell.
Fundamental rights of prisoners are subject to reasonable restrictions, and the court may intervene only in cases of undue harshness or avoidable tantrums in the prison system.
Headnote:
Fundamental Rights - Right to Wear Dress of Choice - Circular dated 14th March, 2012; Additional list of prohibited articles dated 8th December, 2013 - AIR 2018 SC 1933 Shafin Jahan Vs. Asokan K.M. & Ors.; Common Cause (A Regd. Society) Vs. Union of India; AIR 1978 SC 1675 Sunil Batra Vs. Delhi Administration & Ors.; AIR 1978 SC 1514 Charles Sobraj Vs. Supdt. Central Jail, Tihar, New Delhi - The court discussed the petitioner's fundamental right to wear the dress of his choice, the circulars issued by the Jail Authorities prohibiting certain clothing items, and relevant legal precedents emphasizing the autonomy of individuals in matters of dress and lifestyle. The court also considered the rationale behind the prohibition of certain clothing items in jails and the medical condition of the petitioner.
Fact of the Case:
The petitioner, involved in multiple criminal cases, claimed that his fundamental right to wear the dress of his choice, specifically jeans and sports shoes, was violated while in jail. The petitioner suffered from a genetic disorder and atopic dermatitis, and argued that the prohibition on wearing certain clothing items infringed his fundamental rights.
Finding of the Court:
The court found that the petitioner's grievance was limited to not being permitted to wear jeans and sports shoes, which were prohibited in jail. The court noted the circulars prohibiting certain clothing items, the rationale behind the prohibition, and the medical condition of the petitioner. It concluded that there was no reason to pass directions to permit the petitioner to wear the prohibited clothing items.
Issues: The issues involved the petitioner's fundamental right to wear the dress of his choice, the prohibition of certain clothing items in jail, and the medical condition of the petitioner.
Ratio Decidendi: The court held that while fundamental rights are guarded for prisoners, they are subject to reasonable restrictions. It considered the medical condition of the petitioner and the rationale behind the prohibition of certain clothing items in reaching its decision.
Final Decision: The petition was dismissed.
MUKTA GUPTA, J.
Crl.M.A.No.29231/2018
Allowed subject to just exceptions.
Crl.M.A.No.29232/2018
For the reasons stated in the application, delay of 30 days in re-filing the petition is condoned.
Application is disposed of.
W.P.(Crl.) No. 2306/2018
1. By this petition, the petitioner who is involved in six FIRs wherein in one FIR, charge sheet has been filed by the National Investigating Agency and in the others, charge sheets have been filed by the local Police claims that the petitioner is suffering from a genetic disorder including asthma, atopic dermatitis of both upper and lower limbs, seborrhoeic dermatitis and lumbar back pain among other ailments. Copy of the medical certificate is annexed as Annexure ‘A’ to the present petition. Petitioner states that despite the fact that the petitioner is suffering from atopic dermatitis of both upper and lower limbs, the petitioner is not being allowed to wear appropriate clothing among other things in the jail. Petitioner states that it is his fundamental right to wear the dress of his own choice and in view of the circulars issued by the Jail Authorities, no convict or an under-trial can wear jeans with any sport shoes though ordinary PT shoes are permitted. Petitioner thus claims that the petitioner’s fundamental right to wear dress of his choice i.e. jeans and sport shoes is violated.
2. As per circular dated 14th March, 2012 list of prohibited articles inside the jail are as under :-
“1. Spirituous liquors of every description, ganja, bhang, opium, smack and other intoxicants.
2. All explosives, intoxicating dangerous, drugs or poisonous substances and chemicals, whether fluid or solid of whatever descriptions.
3. All arms, ammunition and weapons knives and cutting implements of any kin and articles which are capable of being used as a weapon of any description.
4. All bullion, metal, coin, jewellery, ornaments currency notes, securities and articles of value of every description.
5. All books, printed or written matter and materials and appliances for printing or writing of whatever description unless the same is allowed by the Superintendent Jail.
6. String, rope, chains and all materials which are capable of being converted into string or rope or chains, of whatever description.
7. Wood, bamboo, club, stick, ladder, bricks, stones and earth of every description.
8. Cell phones, wireless or any other telecommunication electronic gadget.
9. Playing cards or other implements for gambling.
10. Tape Recorders, type writers and other equipment that can be misused.
11. All tobacco items, Pan Masala or anything similar.
12. Sports shoes (Ankle with spongy padding which may be used for concealing prohibited items). However, ordinary PT shoes permitted.
13. Polythene bags, fruit, curried vegetables etc.
14. Any article of whatever description which has not been issued by the prisons administration or not permitted inside the jail by the Jail Superintendent or the Dy.Supdt./Incharge on his behalf.”
3. On 8th December, 2013, an additional list of prohibited articles was circulated which is as under :-
“All type of jeans fabric.
Dry fruits.”
4. The rationale behind not permitting the under-trials or convicts to wear sports shoes with spongy/padded ankles is that there are chances of concealment of prohibited materials therein. Further, the metal buttons in the jeans evade detection of other metallic substance in the possession of the convict/under-trial making it easy to smuggle prohibited articles.
5. Supreme Court in AIR 2018 SC 1933 Shafin Jahan Vs. Asokan K.M. & Ors. recognized the constitutional guarantee of right to live under Article 21 of the Constitution of India and held that the Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The Constitution Bench in Common Cause (A Regd. Society) Vs. Union of India
