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MADRAS HIGH COURT
G.R. Swaminathan, J.
V. Radhakrishnan —Petitioner
versus
State of Tamil Nadu and Ors. —Respondents
WP(MD)No.15664 of 2019 and WMP(MD)No.12339 of 2019
Decided on 19.07.2019
Transfer of Prisoners Act, 1950 – Section 3 – Tamil Nadu Prison Rules, 1983 – Rule 568 – Transfer pf prisoner from one prison to another – Proportionality test involves a structured, multi stage examination of content of decision under challenge – Firstly, court must ask if government body is acting in pursuit of a legitimate objective – If answer is “No”, action is unlawful – If answer is “yes”, court will then consider if attaining that legitimate objective necessarily demands that body interfere with a presumptively lawful entitlement possessed by an individual or company – Subject to considerations of security, prison discipline and public interest, competent authority is obliged to respect choice of convict prisoner – Convict prisoner is entitled to call upon authority to house him in a prison where rights conferred by Mandela Rules can be better exercised – Choice of convict prisoner can be governed by a variety of factors – One such factor can be the proximity of prison to place where his family resides – Prisoner is also a fellow human being and not a soul-less chattel – In case on hand, petitioner has proved to be of good character – He has even authored a poetry book – His mother is 92 years old – She wants to visit her son as often as possible – Prison authorities have also recommended that petitioner can be kept at Madurai permanently – Retention of petitioner at Central Prison, Madurai allowed. (Paras 6, 13 and 14)
Result: Writ Petition allowed.
ORDER
G.R. Swaminathan, J.—The writ petitioner was a death row convict. Following the acceptance of his clemency petition, the death sentence was commuted to life imprisonment with a condition that he shall remain in prison for the whole of the remainder of his natural life. There shall be no remission of the term of imprisonment. The petitioner has been in prison for a quarter of century. He was originally housed in Trichy Central Prison. His mother wanted the petitioner to be transferred to Madurai Central Prison as Madurai is situated closer to her residence. Her request found favour with a learned Single Judge of this Court. But the prison authorities filed WA(MD)No.1272 of 2014 and the Division Bench by order dated 27.11.2018 set aside the order of the learned Single Judge. The Division Bench took the view that there is no provision in the prison rules to consider the application of a prisoner’s relative for transfer. But then, liberty was given to the petitioner herein to submit a fresh application for transfer. It was directed that the same shall be considered on any of the grounds enumerated under Rule 568 of the Tamil Nadu Prison Rules, 1983.
2. Availing the said liberty, the petitioner submitted a representation dated 20.02.2019. Thereupon, the Inspector General of Prison, Chennai – 8 transferred the petitioner from the Central Prison, Trichy to Central Prison, Madurai on 22.04.2019 for a period of three months. Apprehending that he would be re-transferred to Trichy Central Prison following the expiry of the three months period, he submitted one more representation dated 23.05.2019 requesting the authorities to retain him at Madurai Central Jail itself. Since no order was passed thereon, the present writ petition came to be filed.
3. This Court directed the learned Government Counsel to obtain instructions from the authorities and report to the court. The learned Government Counsel produced the communications from the Superintendent of Prison, Madurai and the Superintendent of Prison, Trichy recommending that the petitioner can be kept at Madurai Central Prison permanently. But then, it was submitted that the final decision will have to be taken only by the Inspector General of Prisons, Chennai – 8.
4. The issue is where the prisoner is to be kept ?. Can this be left to the absolute and unfettered discretion of the Inspector General of Prisons or the State Government ? Does the prisoner have no choice in the matter ? Can he not call upon the authority to accommodate him in a particular prison which is situated close to the place of his family?
5. The Prisons Act, 1894, the Prisoners Act, 1900 and Transfer of Prisoners Act, 1950 are some of the statutes governing prison administration. Section 59 of the Prisons Act, 1894 empowers the State Government to make rules for carrying into effect the purposes of the Act. The State of Tamil Nadu had enacted the Tamil Nadu Prison Rules, 1983. Rule 5 states that the prisoners sentenced to imprisonment for life and those for a period exceeding one month convicted and sentenced by the courts in the districts mentioned in column (2) of the table shall be committed to the prison mentioned in the corresponding entry in column (1) of the table. Chapter 30 of the Prison Rules contains provisions regarding transfer of prisoners from one prison to another. Some of the relevant provisions in the said Chapter are as follows:
“568. Grounds, reasons and circumstances of transfer.—Prisoners may be transferred from one prison to another for the following reasons, namely:—
(i) For custody and treatment in a suitable institution in accordance with the classification, procedure;
(ii) For attendance in Court for the purpose of standing trial, or giving evidence;
(iii) On medical grounds;
(iv) On humanitarian grounds, in the interest of their rehabilitation;
(v) For post-release vigilance by the police;
(vi) For providing essential services;
(vii) On grounds of security, expediency or
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