IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE – IV, ERNAKULAM
Present:
Shri. P. Krishna Kumar, Additional Sessions Judge IV
Tuesday the 27th day of October, 2020/ 5th Karthika, 1942
Crl.M.P. No.164/2020
in
S .C No.43/2017
Petitioner/Accused 1:
Roopesh, S/o Ramachandran,
Now residing H.No:XVII/183, Aami,
University Colony, Kochin University ,
Kochi – 22. (Now custody at Central Prison,
Viyyur, Thrissur, RP No.2628)
Respondent/Complainant:
State of Kerala represented by
DYSP, ISIT, Thiruvananthapuram.
By Shri. George Joseph, Additional District Govt. Pleader.
This petition having been heard on 27/10/2020 and the Court on the
same day passed the following:
O R D E R
1. The petitioner, the 1st accused person in the above case, has been in
judicial custody from 20.05.2015. He is conducting the case as party in person.
This petition is filed for a direction to the prison authorities for providing
limited and indirect access to Internet for collecting legal materials like
judgments of the constitutional courts and various statutes.
2. Shri.Roopesh, the petitioner states that he has been prosecuted for
39 cases in various courts and he is conducting the trial as party in person in
most of the cases. He further states that most of these cases, including the
present one, are now matured for trial, for which access to the judgments of the
constitutional courts and various statutory provisions is absolutely
indispensable. Being an under trial prisoner, he is entitled to access the Internet
in a controlled manner, he submits. He points out that Rule 828(v) of the
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Kerala Prisons & Correctional Services (Management) Rules (for short, ‘the
Rules’) permits foreign citizens who are in prison to access Internet for
obtaining legal aid on their own expenditure and hence, he should not be
discriminated to deny the same facility. Referring to the decision in Sunil
BathraII vs. Delhi Administration (1978 (4) SCC 154), he points out that “For
a prisoner, all fundamental rights are an enforceable reality, though restricted
by the fact of imprisonment”. Placing reliance on D.B.M.Patnaik vs. State of
A.P (AIR 1974 SC 2092) and State of Maharashtra vs. Prabhakar Pandurang
Sangzgiri (AIR 1966 SC 424), he contended that even convicts are not denuded
of all fundamental rights they possesses and hence being an undertrial
prisoner, he is entitled to enjoy the human dignity as conceptualized by the
Hon’ble Supreme Court in Shabnam vs. Union of India (2015 (6) SCC 702).
The petitioner submitted that the right to use Internet has become a
fundamental right protected under Article 19 of the Constitution of India as it
is recognize by the Hon’ble Supreme Court in Anuradha Bhasin vs. Union of
India (Order dated 10.01.2020) wherein it is held that law and technology
seldom mix like oil and water but the law should imbibe the technological
development and accordingly mould its rules so as to cater to the needs of
society, and “non recognition of technology within the sphere of law is only a
disservice to the inevitable. He also relied on Faheema Sherin vs. State of
Kerala (Order dated 19.09.2019) for asserting the said legal proposition. He
also pointed out that the Hon’ble High Court in Madras in L.Prakash vs.
Superintendent, Puzhal Central PrisonI, Puzhal Chennai (LAWS (MAD)2008
7353) held that a prisoner has the right to use computer in the jail for the
purpose of education. It is also contended that the Hon’ble High Court of
Andhra Pradesh in T.Nagireddi vs. State of Andhra Pradesh (LAWS (APH1971
330) permitted a leader of Naxalite movement to use a typewriter in prison for
making all his communications with the court. The petitioner gave emphasis to
the observation made by the Hon’ble High Court of Andhra Pradesh in the said
decision that every civilized community is bound to take an approach giving
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more amenities and freedom to the prisoners within the prison, especially in
the case of undertrial prisoners, who are presumed to be innocent.
Shri.Roopesh further submitted that the Central Prison, Viyyur, where he is
housed at present, has a TV channel and an FM Radio and both are working on
Internet platform and they are being run by the prisoners themselves.
3. On getting the said petition, this court called for a detailed report from
the Superintendent of Central Prison, Viyyur and also issued notice to the
learned Public Prosecutor who is appearing in the said case. As the petitioner
is involved in a case charge sheeted by NIA, the Senior Public Prosecutor for
NIA is also heard.
4. During the course of hearing, Shri.George, the learned Public
Prosecutor for the State, submitted that the Investigating Agency has no
objection in giving permission to the petitioner to use the Internet for the sole
purpose of accessing legal materials from the official websites of the
Government Authorities or the websites like Indian Kanoon etc. However,
Shri. George submitted that the prison authorities have serious objections in
giving permission to the petitioner for accessing Internet on various grounds.
Nevertheless, the learned Prosector submitted that, the prison authorities are
ready to provide adequate law journals to the petitioner or similarly placed
inmates of the prison, if the court makes such a direction.
5. The learned Senior Public Prosecutor for NIA also submitted that, as
the petitioner has been conducting many cases as party in person, such type of
controlled access could be given to him for a limited time, by making sure that
he is not misusing the liberty to disseminate some message to his confiderators.
6. Apart from the present case, the petitioner is facing accusation in yet
another case in this court, in its capacity as the Special Court for NIA Cases.
This court had the opportunity to see the legal acumen of the petitioner on a
number of occasions. He always comes prepared to address the court with
suitable precedents and legal provisions. He is a law graduate. However, his
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submission is that the study materials available with him has been exhausted
and they are no more helpful to him to defend the ensuing trial in various
courts. The prison authorities have already reported through the learned
Public Prosecutor that though the Central Prison has a library, they do not have
enough legal books which are helpful to defend a serious criminal trial. It is
also reported that law journals are also not available.
7. Right to legal aid has been accepted as a fundamental right to every
citizen of India, by various constitutional courts. The concept of free legal aid
to the prisoners and weaker section of the society as contemplates under
Article 39A, is considered to be ingrained in Articles 14, 22(1) and 21 of the
Constitution of India. Access to justice is incomplete without access to laws
and legal provisions. As argued by the petitioner, right to use Internet is now
considered as part of fundamental right. Law is well settled that prisoners also
have fundamental rights, though circumscribed by the prison laws. The
Prisoners Act or the Kerala Prisons & Correctional Services (Management) Act,
2010 (for short, “the Act’) or the Rules made thereunder neither prohibits nor
permits the undertrial prisoners from using Internet for accessing legal
materials or otherwise. On the other hand, the idea of Internet usage by the
prisoners is not completely alien to the prison laws in Kerala. As stated above,
Rule 828(v) of the Kerala Prisons & Correctional Services (Management)
Rules,2014 permits foreign citizens who are detained in prison to use Internet
for legal aid, on their own cost.
8. When it is declared by the constitutional courts that right to legal aid
and right to use Internet are fundamental rights, the petitioner has every
justification in asking permission to use the same for accessing legal materials
to properly defend his case, in the absence of any prohibition in the prison
laws. But the exercise of that right depends upon the availability of that facility
in the prison and the capability of the prison authorities to provide it to the
petitioner or any other person who demands it, without compromising the risk
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elements involved. Such a facility can be provided to a person only if there is
enough mechanism to regulate its use in a reasonable manner and also to
prevent the misuse of the same. As pointed out by the learned Public
Prosecutor for NIA, such a liberty if given, in an unbridled manner, a prisoner
could misuse it for passing vital information, by making the very purpose of
pretrial detention in oblivion. Therefore, a direction in this regard can be
granted only after considering all these aspects.
9. In this regard, the report submitted by the prison officials has to be
considered in detail. It states about the following limitations for granting the
permission requested by the petitioner. (a) Viyyur Central Jail has to house
about 500 inmates, but it has only 15 computers, among them 13 are
connected to Internet and these computers are used for making all the official
functions of the prison. (b) Rule 828(v) envisages Internet facility only to
foreign prisoners for legal aid, and on their own expenditure. (c) When the
matter has been discussed with the other officials and the Head of the
Department, the prison authority has reached to an opinion that providing
Internet access to the prisoners is not desirable for want of necessary
infrastructure and also for shortage of staff for supervising such usage. (d) It
is not fair to grant such a facility only to one prisoner as there are so many
other prisoners. (e) Internet usage by prisoners would cause considerable
financial burden upon the prison department. (f) The petitioner could obtain
necessary legal aid through the virtual legal aid clinic being conducted by the
District Legal Service Authority (DLSA), Thrissur and thereby, he could obtain
the required legal materials.
10. In view of the objections raised by the prison authority, a formal
consultation was made with the MemberSecretary of the Kerala State Legal
Service Authority (KELSA). The learned MemberSecretary informed that
though there is a legal aid clinic in the Central Prison under the control of
DLSA, Thrissur, due to the present pandemic crisis, it has not been functioning
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properly and once the legal aid clinic restores its regular function, it is possible
to provide appropriate legal aid to the petitioner. It is also intimated that the
question of granting permission to the undertrial prisoners to access online
legal materials without causing risk of its misuse could be considered by KELSA
in consultation with the prison authorities, if the petitioner makes such a
request.
11. A report as regard to the feasibility of providing limited and
controlled Internet access in the prison is called for from the District System
Administrator, District Court, Ernakulam, in consultation with the officials in
the National Informatic Centre (NIC). Shri.Anand Vishwam, the District System
Administrator, as per his report dated 12.10.2020, submitted that on the basis
of the discussion made with the NIC officials and on assessing the possibilities
explored on other technical levels, he is of the opinion that limited and
controlled Internet access to the computers could be provided by enabling
Firewalls which are available across various OS platforms. According to him,
four types of Firewalls are available such as, Host based, Network based,
Software based and Hardware based, in addition to the usual method of
browser based blocking. However, he recommends that, out of these options,
Hardware based Firewalls are the best solution, as other methods of
restrictions could be bypassed by a techsavvy user, if he is left unmonitored.
12. After considering all the above aspects, this court is of the opinion
that the request made by the petitioner cannot be allowed as such, as it
involves various issues such as the administrative difficulties in supervising the
petitioner as and when he uses Internet for collecting legal materials. As
pointed out by the prison authority, if such a facility is extended to the
petitioner, there might be demand from the other prisoners as well and the
prison authorities may not be able to handle such demands without
compromising the risk factors involved in the usage of Internet facility by the
inmates. At the same time, the request made by the petitioner for using limited
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and controlled Internet facility for collecting legal materials to enable him to
properly defend his case in the ensuing trials, is also a just and reasonable
need. The prison authority, through Public Prosecutor, undertook that they
would provide adequate law journals to the petitioner. Considering the
financial aspects behind subscribing law journals including the back volumes, it
is advisable to avail the facility of Software based law journals, which are
comparatively cheaper. Until such a facility is provided to the petitioner, he is
entitled to use Internet, in a limited and controlled manner and on his own
costs. He is also entitled to make a request to KELSA for implementing a
comprehensive scheme for providing legal aid to undertrial prisoners,
including the facility to access online legal materials. In this circumstance, it is
decided to dispose of the petition with the following directions.
(1) If the petitioner makes a request to the MemberSecretary, Kerala
State Legal Service Authority, Niyama Sahaya Bhavan, High Court Compound,
Ernakulam for providing adequate legal aid, including the facility to provide
limited and controlled access to the Internet to collect legal materials, the
Superintendent of Prison shall forward the same.
(2) Based on the submission made by the prison authority that they are
ready to provide journals to the inmates of the jail, if the court directs, the
Superintendent of Prison, Central Prison, Viyyur is directed to arrange
Software based law journals (like KHC, Verdicts etc) to the petitioner.
(3) When such software based law journals are made available,
petitioner shall be permitted to use the computer in which it is enabled for a
reasonable duration.
(4) Until a decision is taken on the petition given to the Member
Secretary, KELSA or until the direction No. 2 is implemented, the petitioner
shall be permitted to use Internet facility for a duration of 45 minutes every
week to access only the official websites of the Hon’ble Supreme court and
various High Courts in India, India Code, Indian Kanoon and any useful search
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engine for accessing any of the said websites.
(5) The Superintendent is also directed to implement necessary Firewall
protection to the computer so as to restrict the use of Internet only with the
above said official websites.
(6) The Superintendent of the prison shall take steps to place the
computer (in which the petitioner would access Internet or the Software based
law journal), in such a manner to cover its screen in a CCTV camera which is
available in the prison, so as to ensure that the liberty given to the petitioner is
not misused.
(7) The Jail Superintendent shall fix the usage charges for the Internet
facility being used by the petitioner, taking into account the actual charges
caused by such usage and the incidental matters, and shall adjust it against the
wages to be given to the petitioner, if he exercises his option under section 54
of the Kerala Prisons & Correctional Services (Management) Act, for availing
employment in the prison.
Dictated to the Confidential Asst., transcribed and typewritten by her,
corrected and pronounced by me in open court on this the 27 thday of October,
2020.
Sd/
P. Krishna Kumar
Additional Sessions JudgeIV
APPENDIX: NIL Sd/
Additional Sessions JudgeIV
//True copy// Additional Sessions JudgeIV
Typed by : skp
Comp.by : kbs
9
Crl.M.P. No.164/2020
in
S.C No.43/2017
Order dated 27/10/2020
