Capping jail visits for inmates by Delhi govt not arbitrary: Delhi HC

The PIL sought amendment of the rules to include interviews with legal advisers be open from Monday to Friday for an appropriate allotted time with no cap on interviews per week.

The bench was hearing a petition seeking amendment of the provisions of the Delhi Prison Rules on this subject. (Representational)

Written by: Malavika Prasad

4 min readNew DelhiFeb 21, 2023 07:10 AM IST First published on: Feb 20, 2023 at 06:51 PM IST

The Delhi High Court recently held that the Delhi government’s decision to cap the total number of visits available to an inmate to two times a week has been taken after careful consideration of all factors, and hence cannot be called arbitrary.

While deciding a public interest litigation, seeking amendment of the provisions of the Delhi Prison Rules on this subject, a division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad in its February 16 decision observed, “Depending upon the number of undertrials and prisoners, the state has taken a decision of capping total number of visits by family members, relatives, friends and legal advisers to two times a week, and it cannot be said that the said decision is completely arbitrary. The said decision has been taken after careful consideration of the facilities available in the prisons, availability of the staff and the number of undertrials”.

The PIL sought amendment of the rules to include interviews with legal advisers be open from Monday to Friday for an appropriate allotted time with no cap on interviews per week. The petitioners in the interim have prayed for the visit of the legal counsel to their clients in Delhi prisons more than twice a week. The PIL also challenged Rule 585 which 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 or for procuring bail or for arranging the management of his property and family affair”.

Also Read | ‘Huge delay in conclusion of trial’: Shahrukh Pathan accused in 2020 Delhi riots tells HC

The petitioners contended that limiting the number of visits by family members, relatives, friends and legal advisers to twice a week is violative of Article 21 of the Constitution as it limits the right of an undertrial to have adequate resources to legal representation. It was argued that fixing a cap on the number of visits to an undertrial is “manifestly arbitrary” as it imposes an unreasonable restriction on the right to legal representation and is violative of the right to access justice which is guaranteed under Article 14 of the Constitution.

The Delhi government argued that there are 16 Jails in Delhi housing more than 18,000 prisoners against the sanctioned capacity of 10,026. It was contended that considering the number of inmates in Delhi prisons, a decision was taken to put a limit on the number of visits permitted by the family members, relatives, friends and legal counsel. It was contended that “providing two legal interviews to a prisoner can be increased on the request of a prisoner or a visiting counsel” and does not violate the constitutional rights of the prisoner.

Don't miss | Manish Sisodia explains why he isn’t giving go ahead to demolish unauthorised religious structures

It was argued by the government that no other state allows prisoners visitation more than twice a week. Reliance was placed on Model Prison Manual to argue that it only permits visits once in a fortnight, which is twice a month, whereas in Delhi, the prisoners are permitted visits twice a week. State government also argued that these are matters of policy and this decision has been taken by the State in the best interests of the prisoners and to provide a congenial atmosphere not only to the prisoner but also to the visiting counsel while conducting their legal interviews and to avoid crowding at the time of visitation.

After considering the arguments and referring to judgments of the Supreme court on judicial review, the HC opined that in matters of policy courts do not substitute its own conclusion with the one arrived at by the Government merely because another view is possible. “Therefore, this court is not inclined to pass any order issuing writ of mandamus,” the HC said.

The HC however recognised that the PIL is not an adversarial litigation and had been filed in the interest of prisoners,thereby allowing the petitioners to give a representation to the state providing suggestions, which the HC said it expects the state to consider in the “right spirit”.