Case BriefsHigh Courts

Madras High Court: Expressing that, a convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner, the Division Bench of Munishwar Nath Bhandari, ACJ and Pushpa Sathyanarayana and P.D. Audikesavalu, JJ., held that,

The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we (High Court) can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.

Background

A Division Bench had passed an order referring the following two questions for consideration by a Larger Bench:

(i) Whether the denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/ her spouse and thereby, violative of Article 21 of the Constitution of India? and

(ii) Whether the State can be directed to favourably consider the request of a convict prisoner for emergency leave or ordinary leave for the purpose of having conjugal relationship with his/her spouse, though the Tamil Nadu Suspension of Sentence Rules, 1982 does not envisage this?

The questions were referred to in view of the order of Division Bench granting temporary leave for a period of two weeks to the convict. The said petition was preferred by the wife of the detenu, to grant leave to the convict for 30 days to have conjugal relationship, as they were not having a child from the wedlock and the petitioner was advised to have infertility treatment along with her husband.

The Division Bench had granted temporary leave to the convict and the sentence was suspended for the said period and accordingly, the respondents were directed to release the husband subject to certain conditions.

Later the petitioner filed a fresh petition to seek 6 weeks of leave to her husband for which Division Bench noticed that there was no provision in the Tamil Nadu Suspension of Sentence Rules, 1982 for grant of emergency or ordinary leave for a convict to have a conjugal relationship with spouse.

In view of the above circumstances, the matter was referred to Larger Bench.

Analysis and Discussion

Whether the denial of conjugal rights to a convict would amount to the denial of rights guaranteed under Article 21 of the Constitution of India?

It is no doubt true that Article 21 of the Constitution of India guarantees protection of life and personal liberty. In the present matter, the petitioner’s husband was tried in a criminal case and had been convicted for life imprisonment.

As per the facts of the case, the petitioner’s husband was granted leave for a period of two weeks, which he availed and further filed a petition seeking 6 weeks leave for undergoing the infertility treatment.

The Punjab and Haryana High Court, in Jasvir Singh v. State of Punjab, 2014 SCC OnLine P&H 22479, had considered the issue of conjugal rights of the convict and had made a reference to the provisions of the Prisons Act, 1894 and the Supreme Court decision in Sunil Batra v. Delhi Admn., (1978) 4 SCC 494. Further, the petition was decided holding conjugal rights of the prisoner to be a fundamental right guaranteed under Article 21 of the Constitution of India.

High Court expressed that the provisions of the 1982 Rules do not provide leave for having a conjugal relationship with spouse.

“…if a provision for leave to have conjugal relationship is provided, the prisoner may ask for the leave invariably on that ground and, that too, time and again.”

The Bench added that, it cannot, however, mean that under all circumstances except those specified in Rule 20(i) to (vi) and Rule 20(viii) of the 1982 Rules leave can be denied, rather Rule 20(vii) of the 1982 Rules provides for grant of leave for any other extraordinary reasons, which can be of the nature referred in this case, i.e., for undergoing infertility treatment. However, leave on that ground cannot be sought time and again.

Whether the wife of the convict can seek to leave to enable her, and the convict husband undergo infertility treatment to beget a child and whether it would fall under the category of extraordinary reasons?

High Court opined that petitioner’s request to undergo infertility treatment in a circumstance when the convict had no child from the wedlock forms and extraordinary reason for grant of leave.

Therefore, petitioner case fell under Rule 20(vii) of the 1982 Rules.

If leave for having conjugal relationship is recognized to be a right under Article 21 of the Constitution of India, the prayer of similar nature can be made by the accused or his/her spouse time and again to have conjugal relationship.

Answers to the Questions referred:

(i) The denial of conjugal relationship of the convict for specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution of India. The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course. This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India.

(ii) The State can be directed to consider the request of convict for emergency leave or ordinary leave for the purpose given while answering the question No. (i). The emergency leave or ordinary leave would be for the purpose given under the 1982 Rules and if any extraordinary reason exist, then the State need to consider the aforesaid as and when a request is made by the convict or his relative for grant of ordinary leave for extraordinary reasons. The emergency leave or ordinary leave cannot be claimed as a right for having conjugal relationship without an exceptional reason. This demarcation is necessary as the curtailment of some rights of a prisoner on account of his conviction to the extent indicated above does not offend Article 21 of the Constitution of India.[Meharaj v. State, 2022 SCC OnLine Mad 381, decided on 20-1-2022]


Advocates before the Court:

For the Petitioner: Mr R.Narayanan

For the Respondents: Mr Shunmugasundaram Advocate General assisted by Mr A. Damodaran Addl. Public Prosecutor for 1st respondent

: Mr Hasan Mohamed Jinnah State Public Prosecutor assisted by Mr S. Santhosh Government Advocate (Criminal Side) for respondents 2 to 4

:Mr Avinash Krishnan, CGSC for 5th respondent

: Mr N. Dilip Kumar Amicus Curiae

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay Sreenivas Oka CJ and N S Sanjay Gowda J. remarked that it is necessary to lay down the guidelines to ensure that inhuman and shocking incidents of animal cruelty are hereafter prevented.

The Court took up suo moto cognizance of large number of monkey deaths on the roadside in Belur Taluk of Hassan District on Wednesday night after 15 alive monkeys who were put in a large bag were found as per news reports published in the leading newspapers – Deccan Herald, Indian Express, Times of India, Prajavani, etc.

The Court relied on judgment Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547 and observed

“Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word “life” has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution. So far as animals are concerned, “life” means something more than mere survival or existence or instrumental value for human beings, but to lead a life with some intrinsic worth, honour and dignity.”

It was also observed that the instant case is a gross violation of the provisions of the Prevention of Cruelty to Animals, 1960 particularly, Sections 3 and 11.

The Court directed the “Registrar General to file a writ petition seeking action against all those who are responsible for the said incident of monkeys.”

The case will next be taken up on 04-08-2021.[MONKEYS DEATH – SUO MOTU; decided on 30-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal J., allowed the petition and held that forfeiture of earned remission of a convict is violative of fundamental rights under Article 21 of the Constitution of India.

The facts of the case are such that the petitioner is a convicted prisoner undergoing sentence in Central Jail, Bilaspur for commission of offences under Sections 302, 307 and 149 of Penal Code, 1860. It was alleged that petitioner was found in possession of prohibited article, a prison offence under Section 45 of the Prisons Act, 1894, the Octagon Officer submitted his report to the Jailor, made a recommendation to the Jail Superintendent which was then simply approved by the Jail Superintendent on the same date and as such, the order of forfeiture of 10 days of petitioner’s earned remission was passed. The petitioner has assailed the said order on the ground that such forfeiture of his earned remission, without affording him an opportunity of hearing, is in violation of his fundamental right guaranteed under Article 21 of the Constitution of India.

Counsel for the petitioner submitted that remission forfeited by the Jail Superintendent on account of a prohibited article found in possession of the petitioner, which is a prison offence under Section 45(12) of the Prisons Act, 1894, is absolutely unjust and improper and is in violation of petitioner’s fundamental right under Article 21 of the Constitution of India as no enquiry was conducted by the Jail Superintendent as contemplated in Rule 734 of Chhattisgarh Prisons Rules, 1968 nor the petitioner was afforded an opportunity of hearing in that enquiry, as such, the impugned order passed by the Jail Superintendent deserves to be set aside.

Counsel for the respondents submitted that the impugned order and submit that the instant petition deserves to be dismissed.

Amicus curiae relied on judgment Anand Rao v. Inspector General of Prisons, 1982 MPLJ 73 (DB) and submitted that without following the due procedure as prescribed in Rule 734 of Chhattisgarh Prisons Rules, 1968, petitioner’s earned remission could not have been forfeited.

The Court relied on judgment Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 and observed, it is quite vivid that in the instant case, the enquiry has only been made by the Octagon Officer and the report has been submitted to the Jailor, who has then recommended forfeiture of petitioner’s 10 days of earned remission to the Jail Superintendent, but without giving an opportunity to the petitioner to explain his conduct, penalty of forfeiture of earned remission has been imposed upon him by the Jail Superintendent as he agreed to the recommendation made by the Jailor for forfeiting 10 days of remission earned by the petitioner.

The Court thus held that no such opportunity has been granted to the petitioner to explain his conduct and even otherwise, no enquiry was conducted by the Jail Superintendent while forfeiting petitioner’s earned remission as pursuant to the recommendation made by the Jailor, petitioner’s 10 days’ earned remission has been forfeited, which is violative of petitioner’s fundamental right guaranteed under Article 21 of the Constitution of India.

In view of the above, petition was allowed.[Suraj Gupta v. State of Chhattisgarh, 2021 SCC OnLine Chh 448, decided on 26-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsCOVID 19High Courts

“Death must be so beautiful. To lie in the soft brown earth, with the grasses waving above one’s head, and listen to silence. To have no yesterday, and no tomorrow. To forget time, to forget life, to be at peace.”

– Oscar Wilde

Bombay High Court: A Division Bench of Dipankar Datta, CJ and S.S. Shinde, J. addressed petitions filed against the burial of dead bodies of COVID-19 infected patients in kabrasthans. The Municipal Commissioner of Greater Mumbai had notified a list of kabrasthans for burial of such dead bodies. While dismissing the petitions and allowing the burial of dead bodies, the Court directed that:

” the State as well as the Corporation to ensure that all protective measures envisaged in the GoI guidelines are strictly complied with not only by the members of the family of the deceased at the time of burial but also by those second-line workers who would, as part of their duty, deal with the cadaver of any suspected/confirmed COVID-19 infected individual immediately after death. It is only in public interest that the GoI guidelines have been issued and such guidelines shall not be allowed to be observed in the breach by anyone.”

Court putting up the concern with regard to burials stated that, “havoc of Corona Virus was enough to cause disarray in Mumbai, to top it, burials of unfortunate who died of COVID19 infection became a subject of controversy.”

To the above controversy, Court stated that it is now tasked to put the same at rest.

By a petition dated 13th April, 2020 petitioner had placed their concern that burial of the cadaver of a COVID-19 infected individual in a kabrasthan in the vicinity of their residences would endanger their lives as well as other living nearby and in view of that they requested for the same to be restrained.

Court on perusal of the WHO recommendations observed that,

“…even according to the WHO, there is no evidence of persons having developed infection of COVID-19 from exposure to the cadaver of a suspected/confirmed COVID-19 individual. That apart, the recommendations of the WHO are further clear on the point that people who have died because of COVID-19 infection can either be buried or cremated.”

Further the bench stated that,

“…It all boils down to the nature of precautions taken while one handles the dead body and also at the time of its burial.”

“…We are not too sure as to whether the incumbent Municipal Commissioner while directing that burial should not be allowed for containing the spread of COVID-19 and that the dead bodies of COVID-19 patients should be cremated at the nearest crematorium, irrespective of religion, was aware of the recommendations of the WHO and the GoI guidelines.”

Also the bench added that, Municipal Commissioner could be justified in evolving and implementing any containment measure not forming part of the specified measures, provided such a measure had the sanction of the existing protocols for management of COVID-19 or was such a pivotal measure, otherwise widely acknowledged, which was not included in the GoI guidelines.

Court thus held the action of Municipal Commissioner in preventing burials to be illegal and unauthorized and hence, the amended circular cannot be operated to the detriment of the members of the community for whom burial of the dead is part of the religion they profess, practice or propagate.

Unless any decision shocks the conscience of the judicial review Court, it ought to stay at a distance.

Concluding its decision, Court referred to the decision of Parmanand Katara (Pt) v. Union of India, (1995) 3 SCC 248, wherein it was held that right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death.

Right to a decent burial, commensurate with the dignity of the individual, is recognized as a facet of the right to life guaranteed by Article 21 of the Constitution.

Thus Court found no reason as to why the dead be deprived of his/her last rites. [Pradeep Gandhy v. State of Maharashtra, 2020 SCC OnLine Bom 662 , decided on 22-05-2020]

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and M. Nirmal Kumar, JJ. took up the present matter by was of suo motu Writ Petition as a Public Interest Litigation.

It was noted by the Court through the medium of a channel named “Puthiya Thalaimurai”, wherein it was telecasted that a Medical Doctor, who had health problems suffered from heart attack due to complications developed on account of COVID 19 infection. Body of the doctor was taken to a Christian Cemetry, though the residents assembled and opposed the burial of the said body.

In view of the above, body was taken to Velangadu and buried, during the process, ambulance was also attacked due to which some public servants were injured.

With regard to Article 21, Supreme Court’s decision in , Francis Coraile Mullin v. Administrator, UT of Delhi, (1981) 1 SCC 608, was cited wherein, it was observed that,

Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival.”

Bench in the present matter stated that the scope of Article 21 includes, right to have a decent burial. 

Prima facie it appears that a person who practiced a noble profession as a doctor and breathed his last, has been deprived of his right to have a burial, in cemetery earmarked for that purpose and that apart, on account of law and order and public order problem created, the officials who have performed their duties, appeared have sustained grevious injuries.

Court observed that the information relating to guidelines to be followed  in respect of COVID 19 cases are available in public domain at the instance of the Centre and State Government and people are expected to be aware of the said guidelines issued from time to time.

“Citizens are not expected to take law and order into their hands and if it is so, would definitely lead to anarchy.”

Thus, Court issued notices in public interest to the authorities concerned.

Matter is listed on 28-04-2020. [Suo Motu WP No. 7492 of 2020,  2020 SCC OnLine Mad 938, decided on 20-04-2020]