The High Court of Delhi on Wednesday directed that an 81-year-old, bedridden convict be confined to her home, treating it as custody, until the State authorities decide on her case for premature release.
In a significant judgment addressing a “legal limbo” for incapacitated prisoners, Justice Amit Mahajan also directed the Government of NCT of Delhi to frame appropriate rules for convicts who, due to severe health or age-related infirmity, are unable to surrender after their parole or furlough period ends.
The Court was hearing a writ petition filed by 81-year-old Kailash Wati, seeking a 12-month extension of parole on medical grounds. The Court, noting the statutory limits on parole, moulded the relief to “house arrest” and ordered the authorities to decide on her premature release within four weeks.
Background of the Case
The petitioner, Kailash Wati, along with her husband and son, was convicted under Sections 498A/304B of the Indian Penal Code in FIR No. 359/1987. They were sentenced to seven years of rigorous imprisonment by an order dated February 15, 2000.
An appeal against the conviction was dismissed by the High Court on December 16, 2016, and a subsequent Special Leave Petition (SLP) was dismissed by the Hon’ble Apex Court on March 20, 2017.
The judgment records that the petitioner’s son expired on March 27, 2015. The petitioner and her husband surrendered on February 15, 2017. Her husband subsequently died in jail due to cardiac arrest on June 20, 2017.
On August 16, 2017, the petitioner, on account of her age, fell in the jail premises and was severely injured, suffering fractured thighs. She was first granted parole by the High Court on October 12, 2017, considering her “precarious medical condition.” At that time, she had served 3 years, 11 months, and 25 days of her sentence.
After her release, she was re-operated on at Ganga Ram Hospital, where it was advised that her previous surgery was “flawed and ineffective.” She was advised strict bed rest. Since then, her parole has been continuously extended by multiple court orders on medical grounds.
A recent Status Report confirmed the petitioner is bedridden and “is not able to walk or perform her day-to-day activities without the help of an attendant.” As per jail records, she has spent 04 years and 07 days in custody out of the 07-year sentence.
Arguments Before the Court
Mr. Attin Shankar Rastogi, counsel for the petitioner, submitted that the petitioner is 81 years old, completely bedridden, and not in a position to surrender due to her declining health, seeking a 12-month parole extension.
Mr. Amol Sinha, Additional Standing Counsel for the State, submitted that the petitioner’s case could be considered for premature release. He referred to Rule 1246A of the Delhi Prison Rules, 2018, which allows for the consideration of remittance of sentence for convicts over 70 years old who are incapacitated. He requested four weeks for the Prison Department to “explore the feasibility” of this process.
Mr. Vivek Gurnani, appointed as Amicus Curiae, suggested four possible recourses:
- Premature Release: The petitioner qualifies for evaluation under Rule 1246A, being 81 and having served over 50% of her sentence.
- Pending Mercy Plea: A clemency plea under Article 72 of the Constitution has been pending with the Ministry of Home Affairs since 2018. The amicus submitted this “inordinate delay” is amenable to judicial review, citing A.G. Perarivalan vs. State.
- Lt. Governor’s Recommendation: The mercy plea was forwarded with a recommendation from the Hon’ble Lt. Governor. The amicus suggested that if this recommendation was favourable, it might suffice for a pardon under Article 161.
- Home Confinement: Citing judgments from the Calcutta High Court (The Court in its own motion: In re: Overcrowding in prisons) and the Madras High Court (M. Rajeshwari vs. Additional Director General of Police & Ors), the amicus proposed the petitioner be allowed to serve confinement at home.
Court’s Analysis and Finding
Justice Amit Mahajan, in his judgment, first examined the legal framework for parole, noting that Rules 1212 and 1212A of the Delhi Prison Rules, 2018, limit parole to a maximum of sixteen weeks in a conviction year.
The Court observed it was faced with a “conundrum”: it could not “mindlessly extend the parole” beyond the statutory rules under its writ jurisdiction, but it also “cannot be so inhumane” as to order the bedridden petitioner to surrender.
The Court asserted the fundamental rights of the convict, stating: “By mere virtue of conviction, a convict is not denuded of their fundamental rights and the punishment cannot be one which defiles the dignity of an inmate.” It noted that prison authorities would be unable to provide the “round the clock assistance” the petitioner requires.
While declining to exercise judicial review over the pending mercy plea at this stage, the Court found the amicus’s fourth suggestion—home confinement—to be a “cogent alternative.”
The Court discussed the concept of “House Arrest,” referencing the Supreme Court’s decision in Gautam Navlakha v. ΝΙΑ and the Madras High Court’s ruling in M. Rajeshwari, where a convict in a similar state was allowed to be confined at home.
The judgment stated: “While this Court does not seek to propose that house arrest needs to be regularised as an alternative for custody, in the absence of any provisions for extended release for infirm and aged patients, the same appears to be a cogent alternative, especially considering that adjudication of mercy pleas as well as assessment of a convict’s case for premature release are generally time-consuming endeavours.”
Final Decision and Directions
The High Court disposed of the petition with the following directions:
- The petitioner, Kailash Wati, is to be “confined in her home” under the care of her son “till such time when her case is considered for premature release.”
- She shall furnish a personal bond of ₹10,000/- with two sureties to the satisfaction of the concerned Jail Superintendent.
- She is not permitted to leave her residence, except for medical treatment.
- The “concerned authorities are directed to decide the case of the petitioner for premature release expeditiously, preferably within a period of four weeks.”
In a broader direction, the Court took “notice of the fact that like the current petitioner, multiple convicts may be forced to suffer the tribulations of legal limbo.”
The Court directed the State Authorities “to frame appropriate rules to cater to such situations as in the present case where convicts, who are incapacitated by virtue of health or age, are not in a position to surrender even after lapse of the period of release on parole or furlough.” A copy of the order was directed to be sent to the Government of NCT of Delhi for appropriate action.
