Prisoner And His Fundamental Rights Do Not Part Ways At Prison Gates: Madras High Court Allows 40 Days Ordinary Leave To Life Convict

“The aforementioned two reasons, i.e., the reasons which snugly fit into sub-clauses (ii) and (iii) of Rule 20 of said Rules, in our view are very compelling as it pertains to education of writ petitioner's children. In this regard, we remind ourselves that a prisoner and his fundamental rights do not part ways at the prison gates and Right to Education is indisputably a fundamental right,” the court said.

Justice M Sundar and Justice R Shakthivel also emphasized that the rules governing leave were subordinate legislation that could not interfere with the constitutional powers of the court especially when it pertained to Article 21 of the Constitution.

“A piece of Subordinate Legislation which has not gone through grind i.e., Legislative grind in the Legislature can hardly constrict or in any manner hamper Constitutional powers of this Court, more so, when such Constitutional powers pertain to Article 21 of Constitution of India,” the court said.

The court was hearing a plea by Selvam, who was originally sentenced to capital punishment which was later modified to life imprisonment. Selvam had submitted that he had been incarcerated for 29 years and had even gone on leave 15 times and had returned without any untoward incident. Selvam had sought an ordinary leave of 40 days to make arrangements for the admission of his children and for repairing his homestead. However, since this representation was not attended to, he had approached the High Court.

The Public Prosecutor submitted that the representation was being processed and a report of the Jurisdictional Probation Officer had been obtained which did not have any adverse remarks. He added that the report said that leave could be granted albeit with an escort.

The court observed that the Rules were only subordinate legislations that could not abridge the constitutional powers of the court. Thus, the court allowed Selvam’s request for 40 days of ordinary leave with an escort. The court also directed that the strength of the escort was to be decided by the jurisdictional police.

The court also emphasized that the leave was to be used only for the purpose for which it was granted and that leave being granted with escort did not mean that Selvam was to be confined to his home.

Counsel for the Petitioner: Mr.M.Mohamed Saifulla

Counsel for the Respondent: Mr.E.Raj Thilak Additional Public Prosecutor

Citation: 2023 LiveLaw (Mad) 274

Case Title: Selvam v State

Case No: WP.No.27137 of 2023