Brother’s son or sister’s son same: Kerala High Court says jail can’t discriminate over emergency leaves of prisoners

Referring to the relevant rule mentioned in Malayalam, the court said, “The term ‘ദർ അനരവൻ (Anantharavan) or ‘ദർ അനരവൾ’ (Anantharaval) cannot be interpreted to mean only the sister’s son or daughter. There cannot be any discrimination between the sister’s children and the brother’s children. Exclusion of the convict’s brother’s son or daughter from the purview of the Rule 400 (1)(ii) would amount to violation of Articles 14 and 15 of the Constitution of India.” The court, therefore, granted the convict emergency leave.

Background

The petitioner applied to the superintendent of Central Prison and Correctional Home, Kannur, seeking 10 days’ emergency leave for his uncle to attend his marriage.

However, the prison authorities did not consider the application under Rule 400 of the Kerala Prisons and Correctional Services (Management) Rules, 2014, and declined the emergency leave for the convict to attend the nephew’s marriage.

Facing rejection, the petitioner moved the high court for a direction to the prison authorities to grant emergency leave between December 20 and 29.

Rule 400 deals with the emergency leave for the prisoners and states, “Any well-behaved convicted prisoner other than a person convicted in respect of any offence relating to National Security shall be eligible for emergency leave under any of the very exceptional circumstances specified below.”

Sub clause (ii) of the rule mentions the categories that allowed, namely, marriage of “son, daughter, brother and sister, grandson, granddaughter, brother-in-law, sister-in law, direct nephew, direct niece”.

The state counsel submitted that the application for emergency leave filed by the petitioner was rejected on the ground that the petitioner does not fall within Rule 400(1)(ii) of the rules. The order recorded that the “jail superintendent interpreted the term ‘ദർ അനരവൻ (direct nephew) as the sister’s son of the convict and not the brother’s son”.

Decision

The court said the terms in the rule cannot be interpreted to mean only the sister’s son or daughter. There cannot be any discrimination between the sisters’ children and the brothers’ children, it added.

The court ruled that the jail superintendent interpreted the term direct nephew as the sister’s son of the convict and not the brother’s son.

“I cannot accept the said interpretation,” the court held.

The order pointed out that a large number of petitions filed before the court, challenging the rejection of applications for emergency leave by invoking Rule 400(1)(ii) of the rules, showed that a “wrong interpretation is being given to the terms by almost all the Jail Superintendents in the state”.