"Should Discussions On Human Rights Be Limited To Symposiums, Webinars? Ground Level Work Required": Supreme Court

"Human rights and all these are things are said in discussions and symposiums. Are we not required to do it in the ground level?", a Division Bench of Justices Dinesh Maheshwari and Krishna Murari orally queried.

The Bench was considering a petition moved by an army man seeking transfer of prison from Kohima Central Jail, Nagaland to one in Pune. He was sentenced to five years in jail through a court martial for the aggravated sexual assault of a minor under the Army Act, 1951 and the the Protection of Children from Sexual Offences, 2012.

During the hearing, Advocate Enatoli Seema, appearing for the State of Nagaland submitted,

"Your Lordship, the Nagaland police will have to get in touch with the Pune Prison Authorities for the handover."

"So, who will bear the expenses?", the Court asked.

"The State of Nagaland", came the response.

"Okay, you do it by tomorrow", the Bench said, pointing to the Seema.

"Lordship, it may not be realistic. Your Lordship, may give me a week's time. Because I've just received this communication (from State of Maharashtra) on WhatsApp. I'll send it to the officers and they will have to send it to the prison department", she replied.

The Court interjected to say, "The point is, it is a question of human rights. We don't take it so casually."

After an internal discussion, the Bench suggested to pay him Rs 10 Lakhs for every additional day that the State of Nagaland takes to transfer him to Maharashtra.

"Okay, you transfer him after one month but 10 lakhs rupees, you will him per day."

"We have sent the communication to the State of Maharashtra. We have done everything we can to help the petitioner", Seema told the Bench.

"Now you do whatever you are required to do", the Bench added.

In a previous hearing, Advocate Sachin Patel, appearing for State of Maharashtra informed that the proposal of transfer of the petitioner had been approved in terms of section 3 of the Transfer of Prisoners Act, 1950. The Court was told that the proposal was accepted with certain conditions, to which the court expressed its reservations.

After Patel readvised the authorities, the "questionable conditions" were removed. The Maharashtra government added that the date of transfer to be communicated by the Nagaland government.

Noting this, the court, in its order, recorded,

"Undoubtedly, the Government of Nagaland is required to follow up with the State of Maharashtra……And in conformity with his human rights, it is required that the government of Nagaland now proceed expeditiously. Having said so, we defer this matter today. Be listed tomorrow."

After the order was passed, Seema again pointed out that Nagaland does not have good connectivity and that more time would be required for logistics to be worked out. But the Court asked the counsel to come with a plan tomorrow.

"Tomorrow, come with a plan. Come with solutions, you are the government. Look at how it is to be done. Looking at how it cannot be done is red tapism. Methods are available to connect from Kohima to Pune, you know it. You want me to say, I'll also say." (Please highlight)

"He is only saying, let me be shifted there. My family is there. At least he can talk to somebody there", the Bench remarked.

"Jailer of the Jail advised him that there's a provision like this for transfer, counsel for the petitioner, Advocate Astha Sharma apprised the Bench.

As the matter drew to a close, the Bench observed,

"These are types of matters, rather than doing seminars and symposiums, we have to do at the ground level. That is the real service."

The petitioner had completed nearly two years in prison without meeting his family members, the plea said. He was prompted to move the top court after the Maharashtra Home Department failed to act on his representation seeking transfer for almost 8 months.

It is the petitioner's case that he's facing difficulties in communicating with jail officials and lawyers in Nagaland jail.

"He not been able to meet his family members or any friends, owing to the restrictions first imposed by the custody, then by the Covid-19 Pandemic, and now since he is lodged at Kohima, Nagaland, which is at a distance of approximately 3000 Kms from his home town of Nashik, and which distance, is not possible for his aged and ailing parents or any of the relatives residing and working in Maharashtra to travel to owing to financial impediments," the petition stated.

Further, it was highlighted that the petitioner's right to legal aid was also severely affected owing to the language barrier.

"That not only has the Petitioner/Accused has been unable to exercise his Right to Visitation, but owing to lack of communication and visitation with family and friends, and an added disadvantage due to language barrier since most of the staff at the Jail and the lawyers in Kohima, converse in English and/or the local dialect, which the Petitioner/Accused, hailing from Maharashtra does not understand, there is inordinate delay, in the Petitioner/Accused, getting the appropriate legal assistance to assail the findings of the Ld. SGCM, and to apply for Suspension of sentence and/or parole during the pendency, thereby violating his Rights available to an accused for Legal Representation, Right to Appeal etc or conferring with a lawyer."

Case Title: Shinde Mohan Kalu vs State of Nagaland