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Prisoner Has A Right To Seek Transfer To A Prison Nearer To His Family, Subject To Security Concerns: Madras High Court [Read Judgment]

Akshita Saxena
1 Aug 2019 11:08 AM GMT
Prisoner Has A Right To Seek Transfer To A Prison Nearer To His Family, Subject To Security Concerns: Madras High Court [Read Judgment]
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The Madras High Court, Madurai bench has allowed a writ petition filed by a prisoner seeking transfer to a prison nearer to his home so that his aged mother could visit him occasionally. 

The petitioner V Radhakrishnan was a death row convict, who was allowed clemency by commuting death penalty to imprisonment for the remainder of life.

His 92 year old mother wanted the petitioner to be transferred to Madurai Central Prison as Madurai is situated closer to her residence.  

The petitioner sought transfer on humanitarian grounds enumerated under Rule 568 of the Tamil Nadu Prison Rules, 1983.

It was submitted by both, Superintendent of Prison, Madurai and the Superintendent of Prison, Trichy that the petitioner could be kept at Madurai Central Prison permanently but the final decision was in the hands of the Inspector General of Prisons, Chennai. This gave rise to the question that whether the Inspector General of Prisons or the State Government enjoyed absolute and unfettered discretion in this regard.

On a perusal of provisions of Tamil Nadu Prison Rules, 1983, the High Court found that the prison authority could decide where the prisoner shall reside. However, Justice G. R. Swaminathan opined that "no textual reading can remain constant". The Court relied on the proportionality principle entrenched in the Indian legal jurisprudence by judgments like Bachan Singh v. State of Punjab, (1982) 3 SCC 24, wherein it was held that this principle is implicit in Articles 14, 19 and 21 of the Constitution. "…conviction does not reduce a prisoner into a non person" he said and it was incumbent on the prison authorities to protect the human rights of the prisoners.

Reference was made to the Model Prisoner Manual prepared by the Union Ministry of Home Affairs which stated that subject to considerations of security, prison discipline and public interest, the competent authority was obliged to respect the choice of the convict prisoners and they may be transferred from one prison to another so that they can be nearer to their home district.

The court also relied on the provisions of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) which prescribed that "prisoners shall be allocated, to the extent possible, to prisons close to their homes or their places of social rehabilitation". Therefore, it was held that a convict prisoner was entitled to call upon the authority to house him in a prison where the rights conferred by the Mandela Rules could be better exercised.

"One can therefore safely conclude that subject to considerations of security, prison discipline and public interest, the competent authority is obliged to respect the choice of the convict prisoner. A convict prisoner is entitled to call upon the authority to house him in a prison where the rights conferred by the Mandela Rules can be better exercised. The choice of the convict prisoner can be governed by a variety of factors. One such factor can be the proximity of the prison to the place where his family resides. A prisoner is also a fellow human being and not a soul-less chattel.", observed Justice Swaminathan.

The Court also referred to the 2016 SC decision on the rights of prisoners(In re inhuman conditions in 1382 prisons).

Accordingly, the Madurai Bench of the Madras High Court directed the Respondent to permit the retention of the Petitioner at Central Prison, Madurai for the remaining part of his punishment period with liberty to pass appropriate order of transfer to another prison, if the circumstances later warrant.

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