Kashi Ram Vs State of Rajasthan and Others

1. The petitioner, a prisoner, lodged in Central Jail, Sriganganagar has preferred this petition for writ seeking a direction to transfer him to Open Air Camp as prescribed under Rajasthan Prisoners (Open Air Camp) Rules, 1972. A challenge is also given by the petitioner to the constitutional validity of the provisions of Rule 3(a), 3(h), 3(j) and 3(m) of the Rules of 1972. The contention of the petitioner is that the Rules of 1972 were enacted with a view to encourage good conduct, satisfactory performance of work and a life of self-discipline among the convicts and further to provide these convicts with a pre-release, opportunity to learn social adjustment and economic self-dependence, but the impugned provisions in no manner having any nexus with the object sought to be achieved, and on the contrary have an effect adverse to the declared objects. As per reply to the writ petition submitted on behalf of the respondents so far as Rule 3(a) of the Rules is concerned no comment is required to be made in view of the law laid down by this Court in the case of Om Prakash v. State of Rajasthan 2002(2) WLC 491. In the case aforesaid this Court while examining validity of Rule 14 of the Rajasthan Prisoners (Release on Parole) Rules, 1958 held as under:

5. The question of geographical discrimination in the matter of grant of bail came up for consideration before the Supreme Court in Moti Ram and Others Vs. State of Madhya Pradesh, In the said case the accused was denied bail for the reason that he and his estate were in different District. If he was resident of district in which the offence was committed, there was no problem to release him on bail but since he was not a resident of the said district, the bail was denied. The observations of the Court in this regard in para 32 is extracted as follows:

To add insult to injury, the magistrate has demanded sureties from his own district! (We assume the allegation in the petition). What is a Malayalees, Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgaam or Chandni Chowk ? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies. What law prescribes sureties from outside or non-regional applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms, sometimes, geographic, sometimes linguistic, sometimes legalistic. Article 14 protects all Indians qua Indians, within the territory of India. Article 350 sanctions representation to any authority, including a court, for redress of grievances in any language used in the Union of India. Equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland. Swaraj is made of united stuff.

6. The problem posed is required to be considered from a wider prospective as it involves a human problem. We have observed in number of cases that State Authorities enters into a long correspondence with the State to which the prisoner belong and ultimately the result is that such prisoners are deprived of the benefit of provision of parole in comparison with the other local prisoners in the jail. The parole rules provides consideration of emergent cases involved in humanitarian considerations but it is confined only to the resident of State of Rajasthan as if there can be no emergent cases for the prisoners, who are residents of outside the State of Rajasthan.

7. A human being continues to have his dignity, self respect and human rights even while under custody, in any form of detention or imprisonment. The Apex Court in the case of Francis Coralie AIR 1981 SC 746 held that "Right to live is not restricted to mere animal existence. It means something more than just physical survival." The prisoners are also human being. In Sunil Batra Vs. Delhi Administration and Others etc., the Apex Court discussed in depth and detail the scope of "prisoner''s right" and their constitutional roots. In Mohd. Giasuddin v. State of Andhra Pradesh reported in Mohammad Giasuddin Vs. State of Andhra Pradesh, the Apex Court interpreted the Article 14, 19 and 21 of the Constitution of India with respect to the prisoners'' right. The Court observed thus

We strongly feel that humanitarian winds blow into this decade when jail reforms from abolition of convicts, customs and conscript labour to restoration of basic companionship and atmosphere of self respect and paternal touch are on the urgent agenda of the nation. Our prisons should be correctional houses, not cruel iron aching the soul.

In the case of State of Maharashtra Vs. Prabhakar Pandurang Sangzgiri and Another, the Apex Court person detained under Preventive Detention Act was not permitted to hand over his "written work" to his wife for publication. The Court held it is a violation of Article 21 of the Constitution of India. The human rights have been recognized even after the death of prisoner. In the case of P.T. Parmanand Katara v. Union of India, (1995) 3 SCC 248 the court observed that when a person is executed with death penalty and Doctor gave a certificate of death and dead body not lowered even after half an hour after the certificate of death was issued was found to be case of violation of Human Rights. In Sanjay Suri v. Delhi Administration reported in Sanjay Suri and Another Vs. Delhi Administration and Another, the Apex Court held that the prison authority should change their attitude towards prisoners and protect their human rights for the sake of humanity.

8. The right to parole comes from humanitarian jurisprudence which is much above the Human Rights. Thus, in our view Rule 14 Sub-rule (a) which prohibits release of a prisoner who is resident of outside the State of Rajasthan in comparison to local prisoners on parole makes a discrimination on the geographical ground and as such it is per se discriminatory. Thus, the Rule 14 Sub-rule (a) only to the extent, "Persons whose ordinary place of residence is outside the State of Rajasthan" is ultra vires of the Article 14 and 21 of the Constitution of India. The authorities while considering the case of prisoner whose ordinary place of residence is outside the State of Rajasthan can enquire into the conduct of the convict more intensively but with the sense of urgency and within the stipulated period. Reasonable conditions can be imposed for the return of the convict to jail to serve out the remaining part of the sentence.

2. Rule 3(a) of the Rules of 1972 is para meteria to Rule 14 aforesaid, and therefore, the reasons given to declare Rule 14 of the Rules of 1958 are applicable in present case too mutatis mutandis. In view of this position of law we are of the view that Rule 3(a) of the Rules of 1972 is bad being in violation of Article 14, 15 and 21 of the Constitution of India.

3. Learned Counsel for the petitioner has withdrawn challenge of the other provisions in view of several judgments of this Court holding those provisions, more specifically the provisions of Rule 3(h) of the Rules of 1972, directory in nature. The judgments relied upon by learned Counsel for the petitioner are, Hazara v. State of Rajasthan and Ors. DB Civil Writ Petition No. 2391/2005, dated 10.5.2005, Ratna v. State of Rajasthan and Ors. DB Civil Writ Petition No. 3616/2008, dated 28.4.2008 and Kishna and Anr. v. State of Rajasthan and Ors. WLC (Raj.) 2004 (4). It is urged by learned Counsel for the petitioner that a direction be given to the respondents to consider case of the petitioner for transfer to Open Air Camp by taking into consideration the judgments referred above. Learned Addl. Advocate General Sh. G.R. Punia is having no objection for getting the case of the petitioner considered in the terms above.

4. Accordingly, this petition for writ stands disposed of. Rule 3(a) of the Rules of 1972 is declared illegal being in violation of Article 14, 15 and 21 of the Constitution of India. The respondents are directed to consider case of the petitioner for transfer to Open Air Camp as per the Rules of 1972 while taking into consideration the law laid down by this Court in the cases of Hajara v. State and Ors., Ratna v. State and Ors. and Kishna and Anr. v. State and Ors. (supra). The consideration in the terms above is required to be made within a period of two months from today.