Constitutional validity of Acts, Rules, Regulations discussed.

ORDER: Petitioner has prayed for a declaration to declare the amendments made to Rules 520, 521 and 826 of the Tamil Nadu Prisons Rules, 1983 as ultra vires of Arts.14 and 21 of the Constitution of India. He has also questioned the communication of the second respondent issued on the basis of the amended rules.

2. The facts of the case are stated as hereunder: According to the petitioner, he is the President of Thamizhar Desiya Iyakkam, a registered political party and also the Convenor of Human Rights Organisation. As part of his organisation’s demand, he wanted to meet the prisoners who were arrested by the S.T.F. Police during the search operations. As part of this exercise, he wanted to meet one Mathaiyan, presently in the Central Jail at Coimbatore. His application dated 29.12.2001 seeking permission to interview Mathaiyan was refused in the light of the amended rule. Hence, the above writ petitions.

3. According to the petitioner, the impugned rules are violative of Arts.14, 19 and 21 of the Constitution of India and also contrary to the decision of the Supreme Court in Sunil Batra v. Delhi Administration, (1978)4 S.C.C. 494 and the Division Bench judgment in Dr.M.Karunanidhi v. State of Tamil Nadu, (1994)1 L.W. (Crl.) 162. It is further stated that the impugned rules are ultra vires of Sec.59 of the Prisons Act, 1894 (Act 9 of 1894) inasmuch as they impose a total ban on the prisoners to have right of visitation from friends. It is further stated that the concession given in case of ex-MLAs and ex-MPs to visit under trial prisoners suffers from the vice of arbitrariness and excluding other persons who may be interested in the welfare of prisoners is violative of Art.14 of the Constitution of India.

4. A counter-affidavit has been filed on behalf of the respondent stating that there have been very many incidents in jails and taking into account the changing times and growth of militancy, the Government has taken as a policy decision with reference to meetings of under trials and convicts in jails. They have referred to a number of instances stating that the prisons and prison personnel have become the target of attacks by terrorists, fundamentalists and dangerous criminals. According to them, the interview room is a place where the visitors not only exchange information with the prisoners, but also pass on permitted articles to the latter, sometimes, contraband and objectionable articles are surreptitiously smuggled during the interview with mala fide intention of creating trouble inside the prison. The expression “friends” gave ample scope for different interpretation. Hence, with a view to prevent any security threat in the prison either to the prison personnel or the prisoners themselves from the above bad elements, Rules 520 and 521 of the Prison Rules were amended with a view to permit the interview of prisoners with relatives only. The counter states that the custody and treatment of prisoners have undergone a sea-change - from punitive to rehabilitative - keeping with the changing trend. Prisoners are availing of the free legal aid facilities provided by the Tamil Nadu State Legal services Authority and the Duty Counsel visits the prison for the purpose of interviewing the prisoners who may decide to avail of the legal aid facility. According to them, the impugned orders are legal and consistent with the Prisons Act, 1894 (Act 9 of 1894).

5. Mr.K.Chandru, senior counsel appearing on behalf of the petitioner submitted that the impugned rules came to be passed after the earlier Government Order G.I.Ms. No.972, Home (Prison-B), dated 8.6.1992 was declared unconstitutional and illegal. Consequently, there was a direction by the Division Bench in Dr.M.Karunanidhi’s case, (1994)1 L.W. (Crl.) 162. referred to earlier, giving liberty to the Government to frame rules which would avail within the guidelines fixed by the Supreme Court in Sunil Batra v. Delhi Administration, (1980)3 S.C.C. 488: A.I.R. 1980 S.C. 1579. Instead of

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