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Prisoners Have A Fundamental Right to Trade, and Profession, rules Calcutta HC [Read Judgment]

Smita Chakraburtty
10 April 2017 7:12 AM GMT
Prisoners Have A Fundamental Right to Trade, and Profession, rules Calcutta HC [Read Judgment]
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An imprisoned developer wanted to sell property to the willing buyers by executing a registered sale deed. Several prayers were made before the jail authority regarding the same but it did not yield any result. The prisoner’s wife then approached the Calcutta High Court.

On hearing the matter, Justice Joymalya Bagchi maintained - “Right to carry on trade and profession including right to convey property in course of such business is an essential fundamental right enshrined under Article 19(i)(g) of the Constitution of India and the same do not stand eclipsed by the continuing incarceration of a prisoner. Hence, I am of the opinion that incarceration of the husband of the petitioner shall not disentitle him from executing sale deeds to convey flats in favour of intending purchasers in accordance with law.”

The judge further interpreted prison as being the temporary home of the inmate- “When a prisoner is incarcerated in a correctional home, it is to be deemed that the prisoner is temporarily residing in the said correctional home. In view of such fact the residence of the prisoner for the purpose of the proviso to the aforesaid Section shall be construed to be in the precincts of the correctional home. Hence, if the registering authority is approached on behalf of the prisoner for registering a document which he is otherwise entitled to execute, it shall ordinarily be the duty of the said authority to hold a commission inside the precincts of the correctional home for effecting presentation of the instrument for registration in terms of Section 31 of the said Act.”

Can a developer transfer immovable property by executing a registered sale deed while being in prison, was answered in the affirmative by the Calcutta High Court. However, to register sale deed the person is expected to go to the Registrar’s office under whose jurisdiction the property is situated. But for the incarcerated, mobility is restricted. Thus the High Court ordered that in such cases the registration can be carried out inside the prison premises.

Section 31 of the Registration Act entails that under special conditions the Registrar can go to the residence of the person’s house to register sale deeds. The High Court read ‘prison’ as ‘temporary residence’ of prisoner, and held that registration can be carried out within prison premises.

Such interpretation simplifies the process of registration of documents for a prisoner.

Previously the prisoner was required to be released under special bail provision in case of under trial prisoner, or be released temporarily under parole in case of a convicted prisoner, to facilitate travel to the Registrar’s Office to get the required documents registered. However, both bail and parole are subject to discretion of the concerned judge or the prison authority respectively. Thus the process of registration of document is subject to uncertainty which jeopardises the prisoners’ fundamental right to trade and profession as enshrined under Article 19(i)(g) of the Constitution of India.

The judgement provides a legal framework to hold commission for registration within the prison premises. It also acknowledges that holding a commission inside prison isn’t a new practice. As par section 78 of the West Bengal Correctional Services Act, 1992 such commissions are held when prisoners cannot be taken to court for witness examination. The Act permits the commission to examine prisoners as witnesses inside the correctional home.

Justice Bagchi, through the said order expanded the scope of the commission and set a precedent to be followed for any other similar case within a time frame of 30 days, to prevent delay in the course of registration.

The judgement thus upholds and reasserts the prisoners right to trade and profession as enshrined under Article 19(i) (g) of the Constitution of India.

Read the Judgment here.

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