Conversations between Prisoner and Spouse should be unmonitored, Madras HC [Read Judgment]
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Conversations between Prisoner and Spouse should be unmonitored, Madras HC [Read Judgment]

Meera Emmanuel

The Madras High Court has ruled that the fundamental rights of a prisoner under the Constitution of India entitle him to unmonitored interaction with his spouse.

Justice GR Swaminathan passing a ruling to this effect, while emphasising that imprisonment does not curtail a prisoner’s right to privacy and dignity under Article 21 of the Constitution altogether. As noted in his judgment,

The expression “life” has been interpreted in Maneka and other cases as much more than mere physical existence.

A prisoner is also entitled to the expansive interpretation of the term “life” occurring in Article 21 to the extent the context permits. Incarceration or conviction does not reduce the prisoner into a non person. While there may be a short and drastic shrinkage of fundamental rights, there is still some residue left. It is the obligation of the prison authorities to protect the human rights of the prisoners.”

In this light, the Court has held that a prisoner is also entitled to unmonitored interaction with his spouse, without the presence of state escorts. The Court observed,

“When a prisoner meets his wife, he may like to hold her hands. His emotions are bound to find a physical expression. While private prison cottages may be a distant prospect, the privacy and dignity of the prisoners should be scrupulously protected.

Conversations between prisoner and his spouse should be unmonitored.

The Court added that measures to secure the prisoner may be otherwise conducted, without having to monitor his spousal interactions.

Of course, not only the prisoner but also the spouse shall be carefully searched before and after the interview. The prison authorities are obliged to facilitate the meetings between the prisoner and his wife in a reasonably private sitting.”

The ruling was passed on a plea moved by the sister of Mohamed Shalin, a remand prisoner lodged in Palayamkottai Central Prison, Tirunelveli. A Special Court had earlier allowed him to visit home to see his ailing wife. However, before he could make the visit, his wife’s condition worsened and she was shifted to a hospital.

Since Shalin had only been permitted to visit his home by the Special Court, his sister sought the High Court’s intervention so that he could visit his wife at the hospital. The plea was moved on an urgent basis given that Shalin’s wife was critically ill.

The state objected to the plea, contending that as a remand prisoner, he was not entitled to such furlough or parole. Further, apprehension was raised that Shalin may attempt to escape. The fact that Shalin remained accused of grave offences with national security implications was also brought up.

All the same, Justice Swaminathan allowed the plea, noting at the outset that the Special Court had still deemed it fit to allow him to visit his home given that there was sufficient reasons to justify the same. Further, this ruling had not been challenged by the police. The Court noted,

The Special Court was satisfied that the medical condition of the prisoner’s wife was rather grave and on humanitarian grounds, permitted him to be with his wife for a day at his house. But, in the meanwhile, the prisoner’s wife was shifted from the residence to hospital. The filing of this writ petition was necessitated only by this development. I therefore see no ground to take a different view.

Prisoners entitled to certain Fundamental Rights under Article 21

Justice Swaminathan proceeded to emphasise that Shalin continued to have certain basic rights regardless of his imprisonment, particularly in view of the Supreme Court’s observations in In Re Inhuman Conditions in 1382 Prisons.

“Mohamed Shalin is no doubt a prisoner but he is a person too. He is entitled to certain fundamental rights even while in custody (vide (2016) 3 SCC 1 (Inhuman Conditions in 1382 Prisons, In Re).

Article 21 of the Constitution of India proclaims that no person shall be deprived of his life or personal liberty except according to procedure established by law. To borrow the words of Justice Kirby uttered in an entirely different context, this Article is uncompromising in its generality of application. It embraces every individual. Its applicability is not confined only to citizens or good people. Prisoners, murderers and even traitors are entitled to the right that it declares.

The Court also relied on various precedents to elucidate on the various rights that subsist for prisoners under Article 21.

This includes the right to privacy and dignity, following the Supreme Court’s rulings in the KS Puttaswamy case and the Navtej Singh Johar case. Further, reliance was also place on the observations made concerning the right to procreation in the Punjab and Haryana High Court case of Jasvir Singh and another v. State of Punjab.

Prison Rules read down to allow Prisoners’ unmonitored interaction with spouses

In view of the above observations, the Court proceeded to read down the Tamil Nadu Prison Rules, 1983 to incorporate the right to privacy in provisions concerning a prisoner’s communication with her/his spouse.

The state had contended that even if Shalin was to interact with his wife at the hospital, it should be in the presence of a police escort. However, in view of the prisoner’s subsisting rights to dignity and privacy, Justice Swaminathan rejected this stance. He said,

I am afraid that I cannot sustain this contention. In case after case rendered in the recent times, it had been recognized that dignity is an inseparable facet of human personality. It has been recognized as an important aspect of the right to life under Article 21 of the Constitution.”

He further pointed that spousal communication is treated as privileged under Section 122 of the Indian Evidence Act, 1872 as well. This prompted the Court to hold that the state cannot monitor interactions of a prisoner with his spouse. Justice Swaminathan held,

I am therefore of the view that Rule 531 of Tamil Nadu Prison Rules, 1983 which states that every interview with a convicted prisoner shall take place in the presence of an experienced prison officer will have to be read down as inapplicable during meetings between spouses.”

Whereas Rule 531 (2) designated special officers to monitor interactions involving a fundamentalist, terrorist or militant prisoner including a remand prisoner or under-trial prisoner, the Court ruled,

This Rule which was introduced in the year 2000 will have to be read down in view of the recent rulings of the Hon’ble Supreme Court as set out earlier. Unless it is so read down, the right to dignity inhering in the prisoner and his spouse would certainly be infringed.

Further, the Court also read down Rule 529, which states that the place of interview will be at or near the main gate.

I am of the view that the prison authorities will have to make an exception in the case of spousal meetings”, ruled Justice Swaminathan.

If the mountain will not come to Mohamed, Mohamed must come to the mountain

The Court pointed out that Shalin already had a right to communicate with his wife, in view of provisions regarding interviews and communications with prisoners under Chapter XXVII of the Tamil Nadu Prison Rules, 1983.

This right would not be extinguished merely because his wife had been shifted to a hospital. Further, the Court emphasised that the state must facilitate such spousal visits, which should be viewed as a prisoner’s right rather than a privilege.

She is now in the ICU ward. Merely because the wife of the prisoner is in hospital, his right to contact and communicate with her cannot be extinguished.

There is a saying that if the mountain will not come to Mohamed, Mohamed must come to the mountain. If the spouse of the prisoner is unable to visit the prison, the authorities must facilitate a visit by the prisoner. Of course, such occasions will be few and far between. But, it is necessary to recognize the existence of such a right. As observed by a legal scholar, this should not be seen as a prisoner’s privilege. It must be viewed more as the spousal right of the prisoner’s wife.”

The Court, therefore, directed the prison authorities to allow Shalin to visit his wife at the hospital where she was lodged. Whereas the authorities were to escort Shalin to the hospital, the interaction between him and his wife could not be monitored, ordered the Court.

The cost of the escort shall be borne by the State Government. During the said meeting, close blood relatives of the prisoner alone shall be present. The escort police shall respect the privacy of the prisoner and his wife.” 

Read the Judgment:

Madras-HC-Prisoners-Right-to-Privacy-May-2019.pdf
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