BEFORE THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
(EXTRA-ORDINARY CIVIL WRIT JURISDICTION)
IN THE MATTER OF A PUBLIC INTEREST LITIGATION
W.P. (C) No. 3778 OF 2020
IN THE MATTER OF :
Sarthak Maggon
…PETITIONER
VERSUS
- Union Of India &Ors.
- ...RESPONDENTS
INDEX
- S. No. Particulars
- Pg.
No.
1. 2.
Written Submissions On Behalf Of Petitioner 1-25 On Status Report Dated 06.07.2020
- Annexure A1-
- 26-29
Copy of the status report dated 06.07.2020 as received by the Petitioner on 06.07.2020
- Annexure A2-
- 3.
- 30-35
Step by Step pictures of the Petitioner’s failed
attempt at registration on NPIP for meeting with a prisoner.
4.
5.
- Annexure A3-
- 36-37
38-39
True Copy of State-Wise NPIP Statistics for the period of 15.03.2020 – 05.07.2020 Annexure A4- True Copy of News Reports explaining the VC mulakat systems of the State of Bihar
6. 7.
- Annexure A5-
- 40-42
43-44
True Copy of News Reports explaining the VC mulakat systems of the State of Gujarat Annexure A6- True Copy of News Report explaining the Whatsapp Video Call mulakat system by the Prison Department of the State of Tamil Nadu
- Annexure A7-
- 8.
9.
45-49
True Copy of Visitation Guidelines by Pennsylvania Department of Corrections in the United States of America.
- Annexure A8-
- 50-52
53-57 58
True Copy of Order of this Hon’ble Court in
W.P. (CRL.) 855/2020 dated 09.06.2020
10. Annexure A9-
True Copy of Order of this Hon’ble Court in W.P. (CRL.) 942/2020 dated 30.06.2020
11. Annexure A10-
True Copy of Circular of this Hon’ble Court dated 09.06.2020
- 12. Annexure A11-
- 59-62
True Copy of Order of this Hon’ble Court in
W.P. (CRL)772/2020 dated 12.06.2020
13. Annexure A12 (Colly)- True Copy of Order(s) 63-67
of this Hon’ble Court in W.P. (Crl.) No. 873 of
2018 dated 03.04.2020 & 30.04.2020
- 14. Annexure A13 –
- 68-72
The E-mail from the Petitioner & other Advocates to the various Prison Authorities
- 15. Annexure A14-
- 73-77
True Copy of the representation dated 02.07.2020 to the High Powered Committee by the Petitioner.
- 16. Annexure A15-
- 78-79
80
True Copy of order of this Hon’ble Court in
W.P. (CRL.) 948/2020 dated 03.07.2020
17. Proof of Service
NEW DELHI 06.07.2020
Sarthak Maggon, Advocate
(PETITIONER IN PERSON)
O: 7/34-B, Basement,
Jangpura-B,
New Delhi-110014
E: [email protected]
M: +91-7045654395
W: www.smlawoffices.in
BEFORE THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
(EXTRA-ORDINARY CIVIL WRIT JURISDICTION)
IN THE MATTER OF A PUBLIC INTEREST LITIGATION
W.P. (C) No. 3778 OF 2020
IN THE MATTER OF :
Sarthak Maggon
…PETITIONER
VERSUS
- Union Of India &Ors.
- ...RESPONDENTS
WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER
ON STATUS REPORT DATED 06.07.2020
1. That, the captioned matter was filed in Public Interest under
Article 226 of the Constitution of India seeking appropriate
writ/order/directions of this Hon’ble Court against the
Respondents herein to build adequate technical infrastructure for conducting legal mulakat telephonically/ through video conference to ensure access to justice to the inmates of Tihar Prison Complex and other jail premises.
2. That, the captioned matter was listed before this Hon’ble
Court on 29.06.2020, wherein the Counsel for Respondent
No. 2, submitted a ‘Status Report’ regarding measures to be
undertaken in furtherance of the relief sought by the
Petitioners herein. It was submitted before this Hon’ble
Court that post-suspension of physical mulakat of counsel/family & friends with prison inmates vide Circular of Respondent No. 3 dated 25.03.2020, telephonic facilities have been operative to facilitate interaction of inmates with counsel/family & friends. Additionally, it was submitted that Video Conferencing (VC) facility had been operative between Delhi High Court Legal Services Committee with prisoners since 22.06.2020. Further, Video Conferencing facilities have been available to women prisoners in Central Jail No. 6 since 24.06.2020. Lastly it was submitted that these facilities will be extended to the rest of the prisoners within ten to fifteen days to interact with their private counsel/ family & friends.
3. That, vide order dated 29.06.2020, this Hon’ble Court had
allowed the Counsel for Respondent No. 2 to submit an updated Status Report addressing the grievances of the Petitioner, and an update on the implementation of the measures propounded in the previous Status Report. It is noteworthy that the status report was accordingly received on 06.07.2020 and the same makes reference to Circular No. File/ Cd No. 3607441/ Legal/ 2020/ 34699. (Circular)
Copy of the status report dated 06.07.2020 has been annexed
herewith as ANNEXURE A1.
- SPECIFIC
- SUGGESTIONS/RECOMMENDATIONS
ON THE CIRCULAR DATED 06.07.2020
4. That based upon the procedure enumerated by the
Respondent No. 2 through the Superintendent-I, Prison Headquarters, the following remarks must be considered to ensure that the circular does not vest undue and arbitrary discretion on the nodal authority to accept or reject legal mulakats since the said discretion shall be counterproductive to the recognition of legal mulakats as a right.
The following suggestions are directed towards the achievement of a holistic and long-lasting infrastructure.
The contents of the Circular are extracted hereinbelow:
“1. That the applications received through email
from the private counsels shall be considered by the Superintendent Jails.
2. Superintendent shall take a prompt decision to allow / decline request on the merit / verification of vakalatnama and identity of applicant .
3. After scrutiny of request, slot for video conferencing may be fixed for an early possible date. The same will be intimated to the concerned at least one day in advance.
4.Legal interview through video conferencing will be conducted for maximum half an hour of each interview, subject to maximum of two interviews in a week.
5. Link for video conferencing will be sent by email through which the advocate can establish a link for video conferencing.
6.The video conferencing shall be allowed on First Come, First serve.
7.The legal interview shall be conducted in the presence of Deputy Superintendent / Assistant Superintendent / other jail staff but out of hearing
8.If any misuse of video conferencing by the users is noticed, the facility extended will be withdrawn immediately.
5. That, it is a sincere suggestion of the Petitioner that Clause
No. 1 of the Circular be made more robust. While, it is appropriate to tender application to the Superintendent of the
Jails, the contact information of all the Superintendent of all Jails shall be mentioned along with the above. This
would ensure that Counsels are not tendering their applications for Virtual Mulakats with prisoners to inappropriate authority, and that the Mulakats are not delayed due to administrative reasons. Moreover, it is suggested that for coordination purposes and to avoid delays in applications by Counsels, the e-mail IDs and telephone lines are manned, and prompt responses are received.
6. That, it is a sincere suggestion of the Petitioner, that in furtherance of Clause 2 of the Circular a transparent mechanism may be set up wherein the Counsels and other applicants are given full disclosure of the reasons for rejection of their application. It is most humbly submitted, that the process of rejection of request should not seem arbitrary and opaque.
7. That, it is a sincere suggestion of the Petitioner that Clause
No. 3 of the Circular be amended to be time-bound. It is submitted that the Counsels applying for a legal mulakat might need urgent conference with the prisoner pertaining to an urgent aspect of their case or otherwise. In this situation,
it would be beneficial that instead of an “early date
possible”, the requests may be accepted and the slot may be given within a period of Forty Eight Hours or shorter
period of time as this Hon’ble Court may deem fit. The
same would ensure the motive of the Circular itself, which is to assure prompt decisions on behalf of the Prison Authorities.
8. That, it is a sincere suggestion of the Petitioner that in
Clause No. 5 of the Circular, an addition be made to the effect of providing a telephone number for immediate contact in case the link is unresponsive or there are some technical glitches. This would ensure prompt redressal so that the slot allotted to a Counsel or any other applicant may be utilised on schedule.
9. That, the Petitioner hereby requests the Respondent No. 3 to provide clarity and explanation to Clause No. 6 of the
Circular. The words “first come first serve” are
ambiguous and warrant elaboration as they leave room
for arbitrary exercise of decision making power. It is suggested that the Respondent No. 3 provide for a flexible mechanism of accommodating legal mulakats in a day, owing to the sometimes urgent nature of the legal mulakats, if the counsel has given prior intimation to the Superintendent of the concerned Jail.
10.That, it is a sincere suggestion of the Petitioner, that in
Clause No. 7 of the Circular the importance of privileged communication between the Counsel and their Client shall be the guiding consideration of virtual legal
mulakats as well. The measures as suggested by the Respondent No. 3, shall not in any way be an infringement of the right of the prisoner to disclose information in the
confidence of his/her counsel. Right of unencumbered communication and right of privacy of the prisoner shall not be curtailed in any manner, and a balance between protocol, safety and rights of the prisoner may be maintained.
11. That, it is a probable situation that Clause No. 8 of the
Circular as it is currently worded, may lead to absurdities.
The word “misuse” has not been defined and may lead to
unnecessary restrictions on the rights of the prisoners. It is a
sincere suggestions that detailed guidelines may be framed by Respondent No. 3 to provided to operators, so that the rights of virtual mulakats is not withdrawn from
the prisoners. The Petitioner wishes to draw the attention of this Hon’ble Court to the plight of the prisoners who might be wishing to speak freely to their counsel or family members and the vague, unambiguous nature of this Clause does not create an encumbrances on the rights of the prisoners.
12.That, before the issuance of the abovesaid Circular the
Petitioner, has availed of the telephonic/VC services made available to him by the Respondents. The Petitioner wished to conduct a legal mulakat with his clients who are incarcerated in Tihar Jail. C.M.A. 13518/2020 and C.M.A. 13519/2020 were moved in the captioned matter before this
Hon’ble Court in pursuance of the same.
13.That, the Petitioner, through these Written Submissions, while lauding the intentions of the Respondents wishes to make suggestions and point out lacunas in the current system of legal mulakats, family visits, exchange of documents, disbursement of payments etc.
UNDERUTILISATION OF EXISTING PORTALS / CREATION OF NEW PORTALS
14.That, the Petitioner wishes to bring to the attention of this
Hon’ble Court the “National Prison Information Portal”
(NPIP)- https://eprisons.nic.in/public/Home.aspx . The NPIP
is a website which facilitates video conferencing between prisoners and their counsel/ family & friends. That the NPIP requires the counsel/ family & friends to submit their details such as name, address, identity proof as well as the number of visitors, date of visit and jail number. Following which, a One Time Password is generated, and a visit reference number is generated subsequently.
15.That, while the above process seems simple and convenient to counsel/ family & friends alike, the NPIP is nonfunctional and dormant. The Petitioner had registered on NPIP following the method explained hereinabove, but the virtual mulakat could not be fructified due to the reason-
“Your Visit Request Is Not Approved” . Moreover, the
current system on NPIP only recognises the Prison Headquarters as an option for Virtual Mulakats and does not provide the option of conducting mulakats by VC in subordinate jail premises.
The step by step pictures of the Petitioner’s failed attempt at
registration on NPIP for meeting with a prisoner are attached
herewith as ANNEXURE A2.
16.That, the NPIP although facilitating video conference mulakats pan India, is extremely underutilised in the context of the NCT of Delhi. The NPIP reflects the statistics for every State in Country, and mentions the number of VC mulakats that have been undertaken between prisoners and their counsel/family & friends. In the short span of 15.03.2020 – 05.07.2020 prisons in - the State of Bihar have conducted 8290 prison mulakats through VC, State of Gujarat have conducted 6709 mulakats through VC, State of Uttarakhand have conducted 3188 mulakats through VC and State of Rajasthan have conducted 24,049 mulakats through VC. Surprisingly, the Jails in State of NCT Delhi have conducted 0 mulakats through VC in the abovesaid period as reflected on the portal.
The State-Wise NPIP Statistics for the period of 15.03.2020 – 05.07.2020 have been annexed herewith as ANNEXURE
A3.
17.That, the Petitioner submits that the shockingly low number of VC mulakats, on an already established system are due to lack of information amongst the masses about the platform and/or lack of proper infrastructure to facilitate VC mulakats. It is submitted that the Respondents may cohesively and comprehensively probe into the better utilisation of NPIP.
18.That the NPIP platform is not conducive for advocates who may not have resources or technical know-how for filling up forms or for friends/family members who are illiterate. The Petitioner through his pro bono arm namely Aseemit Projects Foundation and in collaboration with a technology company client i.e. 1Gen USA is developing an easier to use beta version which may be utilised by the prison administration. The same shall be an application with a simpler user interface and the use of Hindi language and shall include a detailed Superintendent dashboard to keep track of the legal meetings per prisoner. The Petitioner seeks
leave of this Hon’ble Court to provide the design for the same for the consideration of this Hon’ble Court free of cost
as a technological solution to aid the prison administration free of cost.
19.That, alternatively the Respondents may consider the
example of the States of Bihar and Gujarat, wherein ‘emulakat’ systems/application have been set up for
facilitating VC mulakats between prisoners and their counsel/family & friends. The States of Bihar and Gujarat have provided the counsel and loved ones of prisoners infrastructure to stay in touch with the prisoners by registering on an application and submitting documents to the Superintendents of the Jail(s) via electronic mode. After verification of documents, a link is shared with the visitors for the VC mulakat. Moreover, Vadodra Central Jail has also commenced a special, dedicated application to facilitate VC mulakats.
The News Reports explaining the VC mulakat systems of the State of Bihar and the State of Gujarat are annexed herewith
as ANNEXURE A4 & ANNEXURE A5.
20.That, the Respondents may consider the measures undertaken by the Prison Department of the State of Tamil Nadu wherein Smartphones were procured for conducting
VC mulakats through the medium of “Whatsapp Video
Call”. It is submitted that the measures being taken by the Prison Department of the State of Tamil Nadu is a viable alternative while the infrastructure is being set up in Tihar Jail and other Jail Premises.
The News Report explaining the Whatsapp Video Call mulakat system by the Prison Department of the State of Tamil Nadu is annexed herewith as ANNEXURE A6.
21.That, the Respondents may also utilise the “ZOOM”
Meetings Application as is being done by the Pennsylvania Department of Corrections in the United States of America. VC mulakats can be based on detailed visitation guidelines with regards to scheduling, length of meetings, procedure for registration and the Guidelines in place by Pennsylvania Department of Corrections in the United States of America may be taken into consideration. The Visitation Guidelines by Pennsylvania Department of Corrections in the United States of America are annexed
herewith as ANNEXURE A7.
22.That, infrastructure to facilitate the VC mulakat needs to be set up in all Jails, not only the prison headquarters. Each Jail should have a dedicated VC room which would house the technical team to ensure that VC Mulakats are conducted smoothly.
23.That, the Petitioner undertakes to assist the Respondents in the creation of a new application, and/or better utilisation of the existing portals through his Organisation. The Petitioner also undertakes to provide assistance in the creation/management and verification of data, required for facilitation of VC mulakats.
DURATION OF TELEPHONIC/VC MULAKAT
24.That, post last date of hearing in the captioned matter, the
Petitioner had availed the telephonic mulakat facility at Tihar Jail. The free telephone service call lasted for a total of four minutes only. This facility is for both counsel and family & friends. It is submitted that the duration of four minutes is extremely short and results in incomplete information being given to the counsel of the prisoners. It is submitted that the frequency and duration of telephonic/VC conversations should be increased so as to effectively replace physical mulakats for the time being.
25.That, this Hon’ble Court in Sanjay Chandra&Anr. vs.
Superintendent, Jail 1, Tihar, NCT of Delhi&Anr. W.P.
(CRL.) 855/2020 vide order dated 09.06.2020 had directed the authorities to ensure that the Petitioners therein avail of VC mulakats with their Counsel twice a week for a duration of thirty minutes each. The Petitioner submits that there
should be strict adherence to the Order of this Hon’ble Court
and the duration of telephonic conversations shall also be extended accordingly.
The Order of this Hon’ble Court in W.P. (CRL.) 855/2020
dated 09.06.2020 is annexed herewith as ANNEXURE A8.
PRIVACY DURING TELEPHONIC/VC MULAKAT
26.That, the Petitioner has observed the issue of infringement of privacy of the prisoners during the telephonic/VC mulakat. While it is understood that the Prison Administration would be required to ensure safety, and adherence to the Prison Rules, the privacy of the prisoner while interacting with counsel and his/her friends & family shall be the paramount guiding consideration.
27.That, the issue of privacy was also raised before this Hon’ble
Court in Natsha Narwal vs. The Superintendent Jail No. 6, Tihar, NCT of Delhi &Anr. W.P. (CRL.) 942/2020 .In the
said matter, vide order dated 30.06.2020, it was concluded that the Petitioner therein will be afforded with headphones during her VC mulakat, and prison officials will be in visible but not audible distance of the Petitioner therein. The same was held to be in coherence with the Delhi Prison Rules.
Order of this Hon’ble Court in W.P. (CRL.) 942/2020 dated
30.06.2020 is annexed herewithas ANNEXURE A9.
28.That, the Petitioner wishes to suggest methods in addition to
the measures allowed by this Hon’ble Court. The dedicated
VC Room in each prison which is suggested by the Petitioner to be included in all Jails, shall have one desktop/laptop/smartphone station. The same shall be manned by the Technical Staff, who shall be involved with commencing and concluding each VC mulakat. During the mulakat, the prisoner may be locked in said VC Room, and prison officials may maintain a visual on the said prisoner through a glass opening/window in the door, but shall not be allowed in the same room. The prison official may also check in on the prisoner from time to time if said glass opening/window is not provided. The VC room shall be devoid of any sharp material which could result in harm to the prisoner or the prison officials, and the desktop/laptop/smartphone station shall be glued/nailed to a desk so that the devices themselves cannot be used as a dangerous object.