"‘Compassion Must Prevail Over Procedure’: Madras High Court Orders Temporary Leave for Undertrial to Attend Mother's Funeral, Affirms Right to Dignity and Religious Practice"
Sanchayita Lahkar
The High Court of Judicature at Madras, Division Bench comprising Justice S.M. Subramaniam and Justice K. Rajasekar, passed a landmark order stating the constitutional and humane rights of undertrial prisoners. The court directed prison authorities to permit temporary leave for detainees to attend the funerals of close relatives, bypassing the usual route of seeking bail through trial or high courts.
The Bench, constituted during court holidays, took urgent cognizance of a writ petition filed seeking permission for a detainee to attend his mother’s funeral. The Division Bench, while granting immediate relief, went on to address systemic challenges faced by undertrial prisoners in availing such temporary leave.
The petitioner, Mrs. Sarikathu Nisha, approached the court under Article 226 of the Constitution of India, seeking a Writ of Mandamus. She prayed for directions to the Superintendent of Prison, Central Prison-1, Puzhal, Chennai, to grant ten days leave to her brother, Mr. Barakathullah, an undertrial detainee, to attend the funeral of their mother, which was scheduled for 19.04.2025 in Valinokkoam, Ramnad District.
The writ petition was necessitated due to the inapplicability of the Tamil Nadu Suspension of Sentence Rules, 1982, which govern leave for convicted prisoners but do not extend similar benefits to undertrials. The detenu was arrested under the Unlawful Activities (Prevention) Act, 1967 (UAPA), as per FIR R.C.No.42/2022/NIA/DLI registered by the National Investigation Agency (NIA), and had been in judicial custody since 22.09.2022. Though a charge sheet was filed on 17.03.2023, the trial had not yet commenced.
Due to the declaration of a three-day court holiday, the petitioner's counsel moved an urgent motion with permission from the Chief Justice. The case was heard by a special vacation bench constituted specifically to consider the matter.
The learned counsel for the petitioner contended that denying undertrial prisoners’ permission to attend last rites of close family members is inhumane and contrary to constitutional guarantees. Since prison authorities lack the delegated power to authorize such leave for undertrials, families are compelled to urgently approach courts, causing practical difficulties and emotional hardship.
On behalf of respondents 1, 3 to 5, the learned Additional Public Prosecutor Mr. R. Muniyappa Raj submitted that in the absence of explicit statutory provisions, prison authorities are not in a position to grant such permissions. Mr. R. Karthikeyan, Special Public Prosecutor for the NIA, appeared for the second respondent.
The court raised the central issue whether detained individuals possess the right to attend funerals of close family members and whether temporary leave would interfere with correctional institutional goals. It recorded 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."
It was further observed that "attending the burial of loved ones is a fundamental right, as it connects with religious rights to perform pious obligations under specific religious customs and practices."
Citing Article 25(1) of the Constitution, the Bench stated that freedom of religion encompasses rights to perform necessary rituals, and that prisoners cannot be excluded from this ambit. As the detenu belonged to the Muslim community, "he is required to perform certain rituals for his deceased mother under the customs and practice amongst Muslims."
The judgment addressed the emotional and psychological impact of denial: "The death of a close relative is one of the most difficult emotional experiences that any human being has to deal with. Prisoners are no exception... A blanket denial that precludes under trial prisoners alone from being granted an opportunity to mourn their loved ones would be construed as dehumanizing."
The court clarified that no legal distinction justifies denying undertrial prisoners the right to attend such events: "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."
The bench discussed comparative jurisprudence, stating "everyone has a right to respect for their private and family life... granting temporary permission to prisoners to attend burials, funerals or even deathbed visits is not contrary to the aims of incarceration."
Recognizing practical challenges, the court noted: "During holidays, High Court has to constitute a special bench to grant such permission... However, on many occasions, the under-trial prisoners are unable to secure such permissions... The emotional wound caused due to such deprivation remains as a lifetime grievance."
The judgment critically pointed out the disparity in treatment: "Under trial prisoners are standing in a higher footing. They are not yet convicted and presumed to be innocent... Depriving the under-trial prisoners... amounts to discrimination."
The court noted the inaction of authorities despite previous directions and stated: "The Government has yet to take efforts to address this issue... The judicial procedures are causing great hardship to the under-trial prisoners, particularly those from economically disadvantaged class."
The court issued directions as follows:
The Director General of Prisons and Correctional Services or Inspector General of Prisons and Correctional Services or Superintendent of Prison is directed to permit the detenu to attend the burial of his mother, scheduled to be held on 19.04.2025, by granting temporary permission with security.
The Principal Secretary to Government, Home Department (Prison), Government of Tamil Nadu, 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... without forcing them to get an interim bail from the Trial Court or High Court.
The Principal Secretary to Government, Home Department (Prison), Government of Tamil Nadu is directed to issue necessary circulars/instructions to all the Prison Authorities communicating this order, enabling them to act accordingly.
The petitioner is at liberty to file an appropriate petition seeking any other relief if any grievance exists.
Advocates Representing the Parties
For Petitioner: Mr. A. Rajamohamed
For Respondents: Mr. R. Muniyappa Raj, Additional Public Prosecutor, Mr. R. Karthikeyan, Special Public Prosecutor
Case Title: Sarikathu Nisha v. Superintendent of Prison & Others
Neutral Citation: 2025: MHC:1052
Case Number: W.P.No.14244 of 2025
Bench: Justice S.M. Subramaniam and Justice K. Rajasekar
[Read/Download order]
