Terminally Ill Prisoners Need Sympathy, Should Be Permitted To Breathe Their Last In Comforting Company Of Family/Friends: Calcutta HC

The Bench of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee, in suo-moto case (In re: Overcrowding in prisons), was dealing with the issue related to the manner in which Terminally Ill Prisoners (TIPs) are required to be dealt with.

[NOTE: As per the Government's Circular 'terminal illness' is a medical term to describe an active and progressive illness that cannot be cured by being treated and that is reasonably expected to result in the death of the patient.]

Background of the Case

Pursuant to Court's earlier orders, an affidavit affirmed on 9^th October, 2020 by the ADJ & IG of Correctional Services, West Bengal, was filed in Court. This report related to the medical treatment that is being extended to the terminally ill inmates of the Correctional Homes across West Bengal.

TIPs were identified by the administration and were named in the affidavit along with the particulars of the various correctional homes where they are housed. The details of the medical treatment that is being administered to them was also delineated in the said affidavit.

However, it was submitted before the Court that the medical treatment that is being received by the TIPs is inadequate and leaves a lot to be desired.

Court's Observations

While noting that prisoners cannot be treated as inhuman objects and certain basic facilities must be made available to them, the Court said,

"We are of the view that a prisoner suffering from terminal illness should be treated with sympathy and should be permitted to breathe his last in the comforting company of his family and friends, if, and to the extent, possible. For this purpose, in an appropriate case, the Government may shift a TIP to his home with a direction that he will be kept confined there."

The Court further continued,

"The jurisdictional police will keep a vigil that the concerned person does not step out of his home. The prison authorities may also require the next of kin of the TIP to execute personal bonds guaranteeing that the concerned TIP shall not leave his home. That way, the concerned TIP will receive the love and affection from his near and dear ones and will end his earthly mission with relatively more peace in mind."

In extremely special cases, the Court noted, a person can be kept imprisoned in his own home. In very exceptional circumstances, subject to the satisfaction of the competent judicial authority and the State Executive on humanitarian and compassionate grounds, an under-trial prisoner or a convict who is serving his sentence in prison and who is staring at death from very close quarters, and counting his days in this world, could be handed over to his next of kins for keeping him confined within the four walls of his home.

The Court further clarified,

"It needs to be emphasised, here and now that this view that we have expressed would take care of only very exceptional cases where such management of a TIP will be inexcusably conducive for that human being in the given set of facts and circumstances; and not otherwise."

The order of the Court also asks the WB Government to follow the 2010 circular (issued by the Union Ministry of Home Afffairs) which talks about the manner in which Terminally Ill Prisoners should be treated.

Directions issued by the State

The Court directed State Government to hand over Terminally Ill Prisoners (identified by it in its affidavit dated 09^th October, 2020) to their next of kins, by adhering to the following directions:-

• TIPs shall be kept confined in their respective homes and the respective jurisdictional police shall ensure that they do not move out of their homes except for visiting hospitals/clinics/medical centres for treatment.
• The Authorities may obtain bonds or such other guarantee (non-financial) from the next of kins of the TIPs as the administration may deem necessary.
• If the families of some of the TIPs may not be prepared or in a position, for financial reasons or otherwise, to accommodate them at their respective homes then the State will have to continue to keep such TIPs in the Correctional Homes but arrangements should be made so that they are extended due care and they receive requisite medical attention and are treated in a humane manner.
• In appropriate cases, to be decided by the competent authority, a TIP may be sent to hospitals / medical care centres / welfare homes where he would be properly looked after and cared for (at State's expense).
• If a TIP has been deserted by his family and friends, the Government must rise to the occasion and assume the role of the caretaker of that person

Lastly, the Court directed that the measures in relation to TIPs, should be taken immediately, "since if the State waits till such amendment takes place, many or all of the TIPs may die in jail in desolate and very unhappy conditions without the minimum human dignity."

Case title - The Court in its own motion: In re: Overcrowding in prisons [WPA 7252 of 2018 With WPA 4510 of 1997 With WPA 5440 of 2020 IA No. CAN/1/2020 (Old No. CAN 3147 of 2020) With WPA 8573 of 2018]

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