Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981)

This is the case in which the Supreme Court said, in as many words, that Article 21 contains the protection against torture and cruel, inhuman or degrading treatment which Article 5 of the Universal Declaration proclaims and Article 7 of the Covenant guarantees. That single sentence does more work in this course than any other, because it is the explicit textual bridge between a Covenant article and an Indian fundamental right.

It is also the leading Indian statement that the right to life is not the right to animal existence. A detenu retains everything that is not necessarily taken away by the fact of detention.

The petitioner was a detenu held under a preventive detention law. The prison authorities restricted her ability to have interviews with a lawyer and with the members of her family, permitting them only at intervals and under conditions she challenged. She did not challenge the legality of her detention in this petition; she challenged the conditions of it.

That distinction is the whole architecture of the case. Once you concede that the detention itself is lawful, you cannot argue for liberty. You can only argue that the residue of liberty which detention does not consume is still protected.

Whether the right to life in Article 21 includes, for a person lawfully detained, the right to live with human dignity - and therefore the right to interviews with family members, friends and a legal adviser.

The petition succeeded. The Court held that "There is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the international Covenant on Civil and Political Rights." (The lower case i in international is a defect in the reproduction, not in the judgment.)

It then reasoned from the fact of imprisonment to what survives it: "The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can be socialise at his free will with persons outside the jail. But, as part of the right to live with human dignity and therefore, as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends" - the word can standing where the judgment must have read he, again a defect of reproduction.

Work through the structure, because it is a model of how to argue a prisoners' rights question.

Step one: identify what detention necessarily takes. Freedom of movement outside the walls. Freedom to choose one's company at large. Those are gone by the nature of the sentence or order, and no argument recovers them.

Step two: identify what it does not take. Everything else. Detention is authorised by law for a purpose; it is not a general licence to strip a person of all attributes of personality. Contact with family and with a lawyer falls outside anything detention is for.

Step three: locate the residue in Article 21. After Maneka Gandhi, the right to life means more than the right not to be killed; it is the right to live with human dignity. Human dignity is not a decorative phrase here - it is doing analytic work. Interviews with family and counsel are components of it, because a life without any human contact of one's own choosing is not a life lived with dignity.

Step four: confirm the standard from outside. Article 5 of the Declaration - no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment - and Article 7 of the Covenant say the same thing in the language of the international community. India is a party. The Court is not importing a foreign rule; it is confirming that the reading it has given to Article 21 is the reading the world has given to the same guarantee.

Observe how much lower the threshold is than the word torture suggests. Nobody beat the petitioner. The complaint was about the frequency and conditions of visits. The Court still analysed it under the Article 5 and Article 7 standard, because that standard covers treatment which is merely degrading as well as treatment which is cruel or inhuman. This is the point most often missed: the prohibition is a graded one, and the lowest grade catches administrative meanness, not only violence.

Read it as the middle term of a three-case argument on the treatment of prisoners and detenus:

• M.H. Hoskot (1978) - what the State must positively provide to a prisoner: a copy of the judgment and legal assistance, on Article 8 of the Declaration and Article 14(3) of the Covenant.
• Francis Coralie Mullin (1981) - what the State must not take away from a detenu: contact with family and counsel, on Article 5 of the Declaration and Article 7 of the Covenant.
• Prem Shankar Shukla (1980) and D.K. Basu (1997) - what the State must not do to a person in custody: irons without recorded reasons; arrest without the safeguards.

Together they are the answer to any question on the human rights of prisoners, and each has its own international anchor, which is what lifts an answer out of the ordinary.