Madras High Court: In a writ petition filed directing the e Superintendent of Prison to grant ten days leave to the detenue now confined at Central Prison, Chennai to attend the detenue’s mother funeral at Valinokkoam, Ramnad District, the division bench of S.M.Subramaniam* and K.Rajasekar, JJ. considering the basic rights of the undertrial prisoner and the deceased person’s right to a dignified burial, the Court issued the following orders:
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The Director General of Prisons and Correctional Services, or the Inspector General of Prisons and Correctional Services, or the Superintendent of Prisons, was directed to grant temporary permission to the detenu to attend the burial of his mother, scheduled for 19-04-2025, with appropriate security measures in place.
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The Principal Secretary to Government, Home Department (Prison), Government of Tamil Nadu, and the Director General of Prisons and Correctional Services, Chennai, were instructed to grant temporary permission to undertrial prisoners across the State of Tamil Nadu to attend the burial or funeral of their close relatives, as defined under the Tamil Nadu Suspension of Sentence Rules, 1982, without requiring them to seek interim bail from the Trial Court or High Court.
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The Principal Secretary to Government, Home Department (Prison), Government of Tamil Nadu, was directed to issue the necessary circulars or instructions to all Prison Authorities, communicating the Court’s order and enabling them to act in accordance with it. The temporary permission for attending such ceremonies was to be granted by the Director General of Prisons and Correctional Services, the Inspector General of Prisons and Correctional Services, or the Superintendent of Prisons, as applicable.
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The petitioner was granted the liberty to file an appropriate petition seeking further relief should any grievance arise.
Background
An FIR had been registered by the National Investigation Agency (‘NIA’) under the Unlawful Activities (Prevention) Act, 1967. The detenue was remanded to judicial custody on 22-09-2022. Subsequently, a charge sheet was filed on 17-03-2023; however, the trial had not commenced. On 18-04-2025, the mother of the detenue passed away. The information regarding her demise was duly communicated to the Jail Authorities. Since the Prison Authorities were not vested with the power to grant leave under the Tamil Nadu Suspension of Sentence Rules, 1982, which applied only to convicted prisoners and not to undertrial prisoners, the relatives were compelled to approach the Trial Court seeking bail or to move the High Court for necessary permission to enable the detenue to attend the funeral ceremony.
Issues
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Whether the prisoners who are detained have the right to be permitted to attend the burial/funeral of their close family members or not.
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Whether granting temporary permission to the prisoners to attend such burial/funeral would interfere with legitimate interests of correctional institutions.
Analysis and Decision
The Court said that a deceased person was entitled to a dignified cremation or burial, and that it was a pious obligation on the part of close relatives to perform certain rituals in accordance with their religious practices or customs.
Referring to Article 25(1) of the Constitution, the Court noted that all persons were equally entitled to freedom of conscience and the right to freely profess, practise, and propagate religion, subject to public order, morality, health, and other constitutional provisions. The right to practise religion was affirmed as a fundamental guarantee under the Constitution. In the case at hand, the Court observed that the detenu, being a Muslim and a son, was religiously obligated to perform the burial rituals of his deceased mother as per the customs and practices observed in Islam. It further held that attending the burial of a loved one constituted a fundamental right, as it was intrinsically connected to the religious right to perform pious obligations in accordance with specific religious customs and practices.
The Court acknowledged that the death of a close relative was one of the most profoundly difficult emotional experiences a human being could face, and prisoners were no exception to such grief. The Court emphasized that undertrial prisoners, too, endured moments of intense emotional pain upon the loss of loved ones. It held that a blanket denial of the opportunity to mourn, specifically for undertrial prisoners, would amount to a dehumanizing act, lacking in compassion and disregardful of their psychological well-being.
The Court further noted that compassion played a crucial role in supporting the mental health of incarcerated individuals and extended beyond the institutional boundaries of imprisonment. Demonstrating compassion during such emotionally challenging times, the Court observed, involved offering understanding and humane support. It was further said that the opportunity to pay final respects to the deceased contributed meaningfully to emotional healing and closure, and therefore, such a right should not be denied lightly.
The Court stated that the right of a prisoner, whether convicted or under trial, to be granted temporary leave to attend the burial or funeral of a close relative was firmly rooted in the principles of humane treatment and the inherent dignity of the individual. The Court emphasized that this right made no distinction between different categories of prisoners, thereby reaffirming the equal entitlement of all incarcerated individuals to basic human compassion. It further observed that comparative jurisprudence across various jurisdictions supported this principle, recognizing the right to respect for private and family life as a universal norm. Granting temporary permission to prisoners to attend funerals, burials, or even deathbed visits was not seen as being inconsistent with the objectives of incarceration. Rather, it served as a humane acknowledgment that prisoners continue to be members of society and of their respective families, to which they are expected to return upon completion of their sentences.
However, the Court clarified that the grant of temporary leave to prisoners, whether convicted or under trial, was strictly for a short duration and for a specific purpose, such as attending the funeral or burial of a close relative. It emphasized that such leave did not alter the fact that the individual remained in judicial custody and must continue to be under the strict supervision and control of the Prison Authorities.
Despite repeated observations and directions from the High Court advocating for a humane and compassionate approach in such matters, particularly in cases involving undertrial prisoners, the Court noted with concern that the Government had yet to take concrete steps to address this issue. Consequently, undertrial prisoners continued to face procedural hurdles and were compelled to approach either the Trial Court for interim bail or the High Court through writ petitions under Article 226 of the Constitution to seek permission for such temporary relief.
The Court highlighted the practical challenges faced by undertrial prisoners in situations involving the death of a close relative, as illustrated in the present case. It noted that both the High Court and all Trial Courts were on a three-day holiday at the time, creating a significant procedural barrier. The mother of the detenu had passed away in the early hours and in the midst of grief, the detenu and his family were compelled to seek out legal assistance, either through the Prison Authorities, or with the help of friends or relatives, to file an urgent application before the appropriate court. The Court observed that during court holidays, a special bench of the High Court must be constituted to consider such requests; however, in practice, many undertrial prisoners were unable to secure timely permission due to procedural or logistical constraints. This often resulted in the prisoners being deprived of the opportunity to attend the funeral or burial of their loved ones, which the Court regarded as a serious infringement of their fundamental rights under the Constitution of India.
The Court observed that while the Suspension of Sentence Rules permitted the granting of leave to convicted prisoners, undertrial prisoners stood on a higher footing, as they had not yet been convicted and were presumed innocent under law. In that context, the Court held that depriving undertrial prisoners of the opportunity to obtain permission from competent authorities to attend the burial or funeral of close relatives amounted to discrimination, especially when prison authorities themselves were empowered to grant such leave to convicted individuals. The Court emphasized that basic rights of undertrial prisoners should not be curtailed merely due to procedural obstacles. It further noted that the judicial process imposed significant hardship on undertrial prisoners, particularly those from economically weaker sections, who often found it difficult to arrange for interim bail or secure urgent permission through writ proceedings before the High Court within a short timeframe.
The Court reiterated that when a deceased person is entitled to a dignified burial and their close relatives have the constitutional right to perform religious obligations, it was imperative that the authorities take appropriate action to facilitate such rights. The Court was of the considered opinion that the Director General of Prisons and Correctional Services bore the responsibility to act in such circumstances.
Taking into account the urgency of such situations and the need to safeguard the rights of undertrial prisoners, the Court deemed it necessary to implead relevant government authorities. 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 were suo motu impleaded as respondents.
[Sarikathu Nisha v. Superintendent of Prison, W.P.No.14244 of 2025, decided on 18-04-2025]
*Order by: Justice SM Subramaniam
Advocates who appeared in this case:
For Petitioner: Mr.A.Rajamohamed
For Respondent: Mr.R.Muniyappa Raj Additional Public Prosecutor, Mr.R.Karthikeyan Special Public Prosecutor
