Calcutta High Court directs State to allow home imprisonment of terminally ill prisoners, says they should be treated with sympathy

"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..."
Calcutta High Court directs State to allow home imprisonment of terminally ill prisoners, says they should be treated with sympathy
Chief Justice Thottathil B Radhakrishnan and Justice Arijit Banerjee

Opining that a prisoner suffering from a terminal illness should be treated with sympathy, the Calcutta High Court on Friday directed the State to allow terminally ill prisoners (TIPs) to be shifted for homes imprisonment so that they may have a peaceful and dignified death surrounded by family and friends.

In this regard, an affidavit had been filed earlier on October 9, 2020, identifying terminally ill prisoners in the State. The Court has now directed the State to shift the prisoners so identified to their homes.

The Bench of Chief Justice Thottathil B Radhakrishnan and Justice Arijit Banerjee clarified that the terminally ill prisoners would be kept confined in their homes and that the police should ensure that they do not move outside their homes, except to visit hospitals, clinics or medical centres for treatment. Further, bonds or other non-financial guarantees may also be obtained from the prisoner's next of kin, if required.

All the same, the Bench urged the State to take a sympathetic and lenient view of the matter, since the objective is to give some level of comfort to the terminally ill prisoners before they depart from this world.

"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 ... 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 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", reads the order.

The Bench further directed that if the family of the prisoner is not prepared, financially or otherwise, to accommodate the prisoner at home, the State will have to continue humanely taking care of the prisoner in the correctional homes.

"If a TIP has been deserted by his family and friends, the Government of our State, which professes to be a welfare State, must rise to the occasion and assume the role of the caretaker of that person", it was added.

The order also urges the government to follow a 2010 circular issued by the Union Ministry of Home Afffairs on the manner in which terminally ill prisoners ought to be treated.

Inter alia, the 2010 circular calls for the following measures:

  • The proper identification of terminally ill prisoners

  • Reasonable medical care and counselling of such prisoners.

  • If they do not pose a risk to society, such prisoners may be shifted to in non-custodial alternatives or open jails on the basis of court orders

  • Amendments may be made to law so that terminally ill prisoners are allowed frequent visits by family and friends, so that they may be released on parole for the remainder of their sentence and so that their release can be considered as part of general amnesty.

  • Repatriation of convicted foreign terminally ill prisoners through diplomatic channels on humanitarian grounds

  • Amendments to enable such prisoners to receive the medical care they need and to die in dignity, surrounded by their family members and friends rather than in the desolate environment of prisons.

On a related note, the Court observed that Rule 591(5) of the West Bengal Jail Code also empowers the State to consider allowing a terminally ill prisoner to be located to his home for a comfortable death.

The Court has now ordered the State to give effect to the 2020 Circular as to keep in mind the abovementioned Rule 591 (5) as well when it comes to the treatment of terminally ill prisoners.

"We are sure that the concerned officers in the State Administration will take a humane view of the issue in hand and do the needful", the Court said.

The Bench went on to direct for the immediate implementation of the order, observing that it may take a while for the amendment of prison manuals or jail codes to reflect these measures.

"...the measures in relation to TIPs, as discussed in this order, 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", the Court said.

Read the order:

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Terminally Ill Prisoners - Calcutta High Court.pdf
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