Supreme Court Refuses To Interfere With Limits On Undertrial Prisoner Visits In Delhi Prisons

The High Court, in its February 16, 2023, decision, opined that this decision of capping the visits had been taken after careful consideration of the facilities available in the prisons, availability of the staff, and the number of undertrials.

The origin of this litigation arose when a public interest litigation was moved by two advocates challenging Rule 585 of the Delhi Prisons Rules, 2018. It also sought amendment of the Rules to include interviews with legal advisers be open from Monday to Friday for an appropriately allotted time with no cap on interviews per week.

Rule 585 states that every prisoner shall be allowed reasonable facilities for seeing or communicating with his family members, relatives, friends, and legal advisers for the preparation of an appeal, procuring bail, or arranging management of his property and family affairs.

It was the petitioners' case that limiting the number of visits to twice a week is violative of Article 21 of the Constitution of India as it limits the right of an undertrial to have adequate resources to legal representation.

The Delhi High Court, however, observed that in matters of policy, courts do not substitute their own conclusion with that of the government merely because another view is possible. The Court concluded that the State's decision to cap the total number of visits cannot be said to be completely arbitrary. Against this backdrop, the matter came before the Top Court.

The matter was placed before Justices Bela. M. Trivedi and Pankaj Mithal.

Today, right at the outset of the hearing, advocate Jai A. Dehadrai, who is also one of the petitioners, submitted that Justice Lokur's order of 2017 for prisons reform has been ignored by the Delhi Government. He stressed that undertrials are increasing in Delhi and argued against the cap put on visits to jail inmates.

“My lords two times in a week for family members and lawyers. Undertrials are increasing in Delhi.”

To this, Justice Bela replied: “Do not forget that you are the accused.”

Dehadrai asserted the criminal law principle of every person should be presumed innocent unless and until proven guilty.

“My lords only accused but I am presumed innocent. Our criminal jurisprudence which your lordhips have upheld for the last 60 years is that we are presumed innocent unless proven guilty.”

Pursuant to this, the Counsel for the Government of Delhi submitted that the State of Delhi provides more visitation rights than any other state.

However, the Dehadrai strongly opposed this submission, saying that this statement has no basis. He argued that there is only half an hour a visit from the lawyers and the family members.

Notwithstanding, the Court suggested that it was not inclined to entertain the same. The Court said that it is a policy decision. Justice Trivedi also stated that it is impossible for jail authorities to manage long periods.

However, Dehadrai tried convincing the Bench to consider the issue and stressed on the gravity of the situation.

“That it is a policy decision, with great respect, which is contrary to the constitution. I am presumed innocent. I get two visits of hold an hour in a week…as criminal lawyers, even prosecutors for that matter will agree, that half an hour visits twice a week is barely anything. Let them examine it, may be they can expand it.”

“If it falls from your lordship that the infrastructure needs improvement, given that 9 out 10 prisoners are undertrials. Please see the crisis. Justice Lokur's judgment of 2017 highlights this fact that Delhi has 200 per cent overcrowding. All the jails are full to the brim. Those undertrial are mostly underprivileged people. They need access to the lawyers and not the contrary, with great respect. ”

Before parting, Dehadrai requested the Court that if challenging the rules is akin to tinkering with policy, something could be placed on record to suggest how infrastructure is being improved. He averred that the lawyers could not speak with their clients despite the facilities due to a lack of infrastructure.

“Even these facilities…what happens is that there are four to five computer sustems in a jail. Now, my lords, that means a slot that is available. Most of the times one cannot speak to its clients because its is a half an hour slot, it is not available. They do not have enough infrastructure. This is a very serious issue. Your lordships are protector of my liberty.”

However, the Court dismissed the same. Still, the determined counsel beseeched the Bench to reconsider the dismissal.

“My lords, I am disappointed as a young criminal lawyer. With great respect, I will still beseech my ladyship to please reconsider it….for the patient hearing, I am grateful”

Case Title: JAI A. DEHADRAI AND ANR v. GOVERNMENT OF NCT OF DELHI AND ANR., Diary No.- 35777 - 2023

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