Madras High Court Directs State Authorities To Grant Temporary Permission To Under Trials To Attend Funeral Of Close Relatives Without Forcing Them To Get Interim Bail From Courts

A Writ Petition was filed under Article 226 of the Constitution by the sister of a detenu remanded to judicial custody by the National Investigation Agency (NIA) under the Unlawful Activities (Prevention) Act, 1967 (the Act) for granting him ten days leave to attend his mother's funeral.

A Division Bench of Justice SM Subramaniam and Justice K Rajasekar held, “The right of a prisoner, whether convicted or under trial makes no difference to temporary leave of absence to attend burial/funeral of a close relative is rooted in the principle of humane treatment and the inherent dignity as a human being. This right does not differentiate between the two categories of prisoners.”

Advocate A Rajamohamed appeared for the Petitioner, while Additional Public Prosecutor R Muniyappa Raj represented the Respondents.

Brief Facts

The detenu's mother passed away on 18th April. Information about the death was provided to the Jail Authorities. The Prison Authorities, however, cannot grant leave under the Tamil Nadu Suspension of Sentence Rules, 1982, which applies only to convict prisoners. Because the detenu is an under-trial, his relatives had to approach the Trial Court or the High Court for bail for permission to attend the funeral ceremony.

However, since the High Court and the Special Court had a three-day holiday, the Petitioner moved an urgent motion, and a special Bench was constituted to hear the case.

Court’s Reasoning

The High Court stated that a “deceased person is entitled to a dignified cremation or burial. It is pious obligation on the part of the close relatives to perform certain rituals according to their religious practices or customs…Right to practice religion is a guarantee ensured under the Constitution. As the detenu is a Muslim, and as a son, he is required to perform certain rituals for his deceased mother under the customs and practice amongst Muslims.”

The Bench held that a blanket denial that precludes under-trial prisoners alone from being granted an opportunity to mourn their loved ones is dehumanising. It further stated that attending the burial of loved ones is a fundamental right.

“Despite the fact that the High Court on several occasions reiterated that humane approach is essential for the purpose of granting temporary permission to the under trail prisoners to attend the burial/funeral of their close relatives and the efforts taken by the High Court, the Government has yet to take efforts to address this issue. As a result, the under trial prisoners are still forced to approach either the Trial Court for grant of interim bail or the High Court to grant permission by filing writ petitions under Article 226 of the Constitution of India,” the Court remarked.

The Bench pointed out that “on many occasions, the under trial prisoners are unable to secure such permissions on account of various of reasons. They are deprived of attending the burial/funeral of their close relatives and loved ones. It amounts to an infringement of their basic rights ensured under the Constitution of India. The emotional wound caused due to such deprivation remains as a lifetime grievance.”

“The judicial procedures are causing great hardship to the under trial prisoners, particularly those from economically disadvantaged class, who finds it difficult to arrange for an interim bail or secure permission from the High Court through writ proceedings in a short span of time,” the Court remarked.

The Bench impleaded the Government considering the “immanency and in order to protect the rights of under trial prisoners.” It held, “Accordingly, the Principal Secretary to Government, Home Department (Prison), Government of Tamil Nadu, the Director General of Prisons and Correctional Services, and the Inspector General of Prisons and Correctional Services have been suo-motu impleaded as respondents.”

Consequently, the Court ordered, “The Principal Secretary to Government, Home Department (Prison), Government of Tamil Nadu, Fort St. George, Chennai and the Director General of Prisons and Correctional Services, Chennai are directed to grant temporary permissions to the under trial prisoners lodged in the prisons across the State of Tamil Nadu to attend the burial/funeral of their close relatives (as defined under the Tamil Nadu Suspension of Sentence Rules, 1982) without forcing them to get an interim bail from the Trial Court or High Court.”

Accordingly, the High Court disposed of the Writ Petition.

Cause Title: Sarikathu Nisha v. The Superintendent of Prison & Ors. (Neutral Citation: 2025:MHC:1052)

Appearance:

Petitioner: Advocate A.Rajamohamed

Respondents: Additional Public Prosecutor R.Muniyappa Raj; Special Public Prosecutor R.Karthikeyan

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