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2021 Supreme(Cal) 130
IN THE HIGH COURT OF CALCUTTA
Thottathil B Radhakrishnan, Arijit Banerjee, JJ.
In Re : Overcrowding In Prisons - Appellant
Versus
. - Respondent
W.P.A. No. 7252 of 2018, 4510 of 1997, 5440 of 2020, 8573 of 2018; C.A.N. No. 1 of 2020; Old No C A N No. 3147 of 2020
Decided On : 08-01-2021
Indrajeet Dey, Advocate, Kushal Das, Advocate, Sandipan Das, Advocate, Saikat Banerjee, Advocate, Raghunath Chakraborty, Advocate, Kallol Mondal, Advocate, Kishore Dutta, Advocate, Raja Saha, Advocate, Debasish Ghosh, Advocate, Sayan Sinha, Advocate
The main legal principle established is the entitlement of Terminally Ill Prisoners to humane treatment and appropriate medical care, as well as the State's responsibility to ensure their well-being, even in the context of financial constraints faced by their families.
Headnote:
Human Rights - Treatment of Terminally Ill Prisoners - Circular V-17014/5/2010-PR - Rule 591(5) of West Bengal Jail Code
Fact of the Case:
The court addressed the issue of the treatment of Terminally Ill Prisoners (TIPs) in correctional homes, emphasizing the importance of humane treatment and medical care for such inmates.
Finding of the Court:
The court found that TIPs are entitled to receive appropriate medical attention and should be permitted to spend their last days in the comforting company of family and friends, if possible. The court directed the State Government to follow the Circular dated 13 August, 2010 and ordered the immediate transfer of identified TIPs to their next of kin for nursing and care at home.
Issues: The key issue was the management of TIPs by the State administration, particularly in the context of Covid-19. The court also addressed the concern of inadequate medical treatment for TIPs and the potential financial constraints faced by the families of TIPs.
Ratio Decidendi: The court emphasized the need for humane treatment and medical care for TIPs, citing international humanitarian law and the Circular V-17014/5/2010-PR. It also highlighted the importance of allowing TIPs to spend their last days with family and friends, and the State's responsibility to provide care for TIPs who are deserted by their families.
Final Decision: The court directed the immediate transfer of identified TIPs to their next of kin for nursing and care at home, with the option of keeping TIPs confined at home under police vigil. It also instructed the State to continue providing care for TIPs who cannot be accommodated by their families.
JUDGMENT
The Court:
1. In this Public Interest Litigation initiated by this Court on its own motion, we are seized with an issue of crucial importance and grave concern touching the human rights of inmates of correctional homes across the State. While the larger issue is one of overcrowding in prisons, the immediate issue that is to be addressed is the manner in which Terminally Ill Prisoners (in short, 'TIPs') are required to be dealt with.
2. While the State may be within its rights to keep under trials and convicts incarcerated in view of the provisions of the IPC, Cr.P.C. and other legislations touching criminal law, it is now well accepted all over the world that even prisoners are entitled to be treated in a humane manner. They cannot be treated as inhuman objects and certain basic facilities must be made available to them. Diverse international conventions including the Geneva Conventions form the core of international humanitarian law regulating the treatment that ought to be meted out to prisoners.
3. The issue that gains vital importance particularly in these Covid-19 days is the management of TIPs by the State administration. Pursuant to our earlier orders, an affidavit affirmed on 9 October, 2020 by the ADJ & IG of Correctional Services, West Bengal, has been filed in Court which relates to the medical treatment that is being extended to the terminally ill inmates of the Correctional Homes across West Bengal. TIPs have been identified by the administration and have been 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 are also delineated in the said affidavit. However, it has been submitted before us by Learned Advocate appearing for the intervenors that the medical treatment that is being received by the TIPs is inadequate and leaves a lot to be desired.
4. With the evolution of the law relating to human rights and global recognition of certain basic rights of a person, who may even be a prisoner, there can be no dispute that a prisoner suffering from an ailment is entitled to receive due and appropriate medical attention. In this connection, Mr. Sabyasachi Chatterjee, Learned amicus curiae, has brought to our attention a Circular being No. V-17014/5/2010-PR dated 13 August, 2010 addressed by the Government of India, Ministry of Home Affairs to the Chief Secretary, Principal Secretary (Prisons) / Principal Secretary (Home-in charge of Prisons) of all State Governments and UT Administrations. The said Circular is an advisory on the policy for the treatment of TIPs. Certain portions of the said Circular are extracted below:
"II. All patients with terminal illness have special medical needs relating to their disease. Such patients also need special psychological counselling and spiritual support since they face the prospect and trauma of impending death. Such needs are further intensified in the isolated environment of a prison, where the medical and intensified in the isolated environment of a prison, where the medical and psychological care could be often lacking for TIPs. All such special medical needs of each TIP must also be identified in consultation with the District/State Medical Board. State Governments and UT Administrations are responsible for making available/providing reasonable Medical Centre, as would be available to a free person outside the prison. All TIPs should be, as far as possible, shifted to a prison in a place where maximum/best medical care facilities could be made available to them.
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d. Provisions for non-custodial measures and alternatives to imprisonment could also be pleaded before the Court for TIPs in case they do not pose any risk to the society. Alternatively, such TIPs could be shifted to the open jails as far as possible under a court order.
e. To enable TIPs to receive the support of family and friends during the extremely distressing p
