Convicts' Leave, Temporary Release Can't Be Indefinitely Suspended Due To Pending Appeal: Madras High Court 5-Judge Bench

“We must reaffirm that incarceration does not render the fundamental rights a "parchment promise."..The power of this Court under Article 226 to ensure the protection of these rights remains an indestructible part of the basic structure of our Constitution…We are, thus, of the view that leave and temporary release are facets of human dignity that cannot be suspended indefinitely merely due to the pendency of a judicial appeal,” the court observed.

The bench of Chief Justice SA Dharmadhikari, Justice CV Karthikeyan, Justice AD Jagadish Chandira, Justice M Nirmal Kumar and Justice Sunder Mohan made the observations while dealing with a reference made to it for deciding the following question of law:

1) Whether leave under Tamil Nadu Suspension of Sentence Rules, 1982, can be granted to a prisoner under Article 226 of the Constitution of India, when his appeal against conviction is pending either before the Hon'ble Supreme Court or this Court?

2) Whether the power to exempt under Rule 40 of the Tamil Nadu Suspension of Sentence Rules, 1982 can be exercised by the State to grant leave to a prisoner outside the scope of the said Rules when his appeal against conviction is pending before the Hon'ble Supreme Court or this Court in the light of the decision of the Constitution Bench of the Hon'ble Supreme Court in K.M.Nanavati v. State of Bombay reported in AIR 1961 SC 112?

A division bench of the High Court, in November last year, had directed the registry to place the matter before the Chief Justice for constituting a larger bench after noting conflicting decisions of two 3-judge full benches in 2011 and 2025.

The bench had noted that in 2011, the full bench in State v Yesu had held that temporary release on parole by way of administrative action and temporary release on suspension of sentence as per the Tamil Nadu Suspension of Sentence Rules were two different concepts. The full bench had observed that suspension of sentence cannot be granted to a prisoner outside the scope of Suspension of Sentence Rules.

In 2025, however, another full bench in T Ramalakshmi v State had observed that as per Rule 35 of the Tamil Nadu Suspension of Sentence Rules 1982, the prison authority was empowered to grant ordinary leave. The court, however, clarified that if the prisoner is facing trial in any other case, the prison authorities could reject his leave application in limine.

Answering the reference, the 5-judge bench said that the 1982 Rules would be applicable for all prisoners except when trial is pending and to deny the benefit to some prisoners would be denying the exclusionary boundary set by the 1982 Rules.

“We are prima facie of the view that, by necessary implication, the 1982 Rules remain a potent instrument for reformative leave for all other categories of prisoners, including those in the appellate stage. To deny the benefit of the 1982 Rules to the prisoners would be to ignore the explicit exclusionary boundary set by Rule 35 of the 1982 Rules,” the court said.

The court noted that the 2011 decision had never considered the question of whether leave could be granted to a prisoner pending appeal. The court noted that the earlier decision had merely stated that leave under 1982 Rules could only be treated as a suspension of sentence and not as parole.

The court also noted that the issue was presently pending before the Supreme Court, wherein the Apex Court was attempting to evaluate the feasibility of a “Pan-India” policy. Thus, till the decision is taken by the Supreme Court, the court said the 2025 decision will hold the field and govern the grant of leave.

The court directed the prison authorities to process applications for ordinary and emergency leave in accordance with 1982 Rules and the 2025 order.

Counsel for Petitioner: Mr. R. Sankarasubbu, Mr. M. Radhakrishnan for Ms. S. Sadhana, Mr. R. Muniyapparaj for M/s. S. Nadhiya, Mr. Janardhanan for Mr. P. Muthamizhselvakumar

Counsel for Respondents: Mr. R. John Sathyan State Public Prosecutor for Mr. C. R. Malarvannan and Mr. A. Mohammed Imran Government Advocate

Amicus Curiae: Mr. Abudu Kumar Rajaratnam Senior Advocate [Amicus Curiae] assisted by Mr. Thiruvadi Kumar

Case Title: Sheefa Rani v The Secretary to Government

Citation: 2026 LiveLaw (Mad) 276

Case No: WP Crl. No s .722, 1167, 1244 and 1321 of 2025