"A prisoner and his fundamental rights do not part ways at prison gates": Madras High Court

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Court found the reason of children's education and his home's repairing, as given by the convict, were "very compelling"

The Madras High Court recently observed that a prisoner and his fundamental rights do not part ways at the prison gates. Court said so while granting 40 days ordinary leave from prison to a murder convict. 

The man was convicted for murder in the year 1998. Originally, he was awarded capital punishment, however, the President in a Mercy plea modified it to life imprisonment.

The man remained incarcerated since 1994. In these 29 years, he went on leave multiple times.

On July 28, 2023, he sought 40 days of ordinary leave on two grounds namely, (a) to make arrangements for the admission of his two children in B.E., and M.E. courses and (b) to repair his homestead.

However, the representation sent by him to the prison authorities remained unattended. Consequently, he moved the high court seeking direction to the Prison authorities to grant him the leaves. 

The bench of Justice M Sundar and Justice R Shakthivel said that in view of the facts and the trajectory of the matter including the trajectory of incarceration of the convict for nearly three decades, it was of the opinion that the convict's representation had to be acceded.

Court stressed that firstly, the reasons given for the leave request snuggly fit into sub-clauses (ii) and (iii) of Rule 20 of 'the Tamil Nadu Suspension of Sentence Rules 1982' captioned 'Grounds for the grant of ordinary leave' and secondly, on all 15 occasions when the convict was granted leaves, nothing untoward had happened and he had returned and surrendered on the leave period elapsing.

Further, court pointed out that also the report of the jurisdictional Probation Officer did not say anything adverse and it only said that it was desirable to grant 40 days leave with escort.

Court found the reasons for leave as given by the convict "very compelling".

Apart from that, court underscored that 'the Tamil Nadu Suspension of Sentence Rules 1982' is a piece of Subordinate Legislation which did not go through legislative grind of law making in the Legislature. 

"Therefore, this piece of Subordinate Legislation is only a codified guideline for the Executive to deal with requests for leave from prisoners and it cannot abridge Constitutional powers which this Court is exercising," said the court. 

Keeping the same in view, exercising its constitutional powers, court granted 40 days ordinary leave with escort to the convict.

However, court clarified that the convict shall utilize the leave only for the purpose given by him and shall not partake in any other activities. "Writ petitioner being granted leave with escort does not mean that writ petitioner will be confined in his house and it shall not be treated as house arrest," court further mentioned.

Case Title: Selvam v. The State