Transfer of prisoner to another Jail on humanitarian grounds is subject to security concerns, Delhi HC

The Delhi High Court has held that the wish of a prisoner is not the only factor to be considered while transferring him to another prison on humanitarian grounds and the same was subject to security concerns of the State..The Judgment was passed by a Single Judge Bench of Justice Vibhu Bakhru in a plea by the convict in the Lajpat Nagar Blast case, Javed Ahmed Khan. .The Petitioner, Javed, had approached the High Court after his representation seeking transfer from the Central Jail Tihar, Delhi to the Central Jail, Srinagar, Jammu & Kashmir was rejected by the Delhi Government..The Petitioner is in Tihar for the commission of offences under Sections 302/307/323/120B/124A of the IPC; Sections 3/4/5 of the Explosive Substances Act, 1908; Section 25 of the Arms Act, 1959, and; Section 411 of the IPC..Before the High Court, the Petitioner relied on the Supreme Court’s order in Re-inhuman Conditions in 1382 Prisons, In Re: (2017) to contend that insofar as possible, a prisoner is required to be placed in a jail near his home in order to ensure his social rehabilitation..The Petitioner also relied upon the United Nations Standard Minimum Rules for the Treatment of Prisoners as adopted by the General Assembly of United Nations on December 17, 2015, also known as the Nelson Mandela Rules..He submitted that in terms of Rule 59 of the Nelson Mandela Rules, prisoners were required to be allocated, to the extent possible, to the prisons close to their homes or their places of social rehabilitation..The Petitioner also pointed out Rules 664 and 672 of the Delhi Prison Rules, 2018, which provides for transfer of prisoners.While Rule 664 provides for the transfer of a prisoner to another Jail on humanitarian grounds in the interest of rehabilitation, Rule 672 states that the transfer of prisoners from one state to another has to be in accordance with the provisions of the Transfer of Prisoners Act, 1950.Explanation (i) of Rule 672 expressly sets out that due consideration shall be given to the wishes of a prisoner regarding transfer to his home state, unless there are adequate reasons against it..The Court noted that the Nelson Mandela Rules had found "statutory expression" in the Delhi Prison Rules, 2018..It observed that in the present case, the Petitioner’s request for transfer to Central Jail, (Srinagar), Jammu & Kashmir had been rejected on the ground that his transfer involved a high degree of security hazard..The Court took into account the Delhi Government’s status report which indicated that as per Intelligence Bureau, Ministry of Home Affairs, militants/radical elements had sympathizers in the Srinagar Jail premises..In view of these facts, the Court opined that there appeared to be "reasonable grounds" for security concerns regarding transfer of the Petitioner from Delhi to the Central Jail, Srinagar, Jammu & Kashmir..It stated,.The Court cannot be oblivious of the fact that there is terrorist activity in the State of Jammu and Kashmir and the petitioner has been convicted for an act of terrorism. Although a wish of a prisoner is required to be considered; the same is not the only factor to be considered. A prisoner’s transfer to a prison near his home would, obviously, be subject to security concerns of the State.Delhi High Court.The Court accordingly dismissed th petition on the ground that it found no reason to interfere with the order rejecting the Petitioner’s request to be transferred to a prison in Jammu and Kashmir..The Petitioner was represented by Advocates Aditya Vikram, Avinash..State of Delhi was represented by Standing Counsel Rahul Mehra with Advocates Chaitanya Gosain, Amanpreet Singh. .Additional Standing Counsel Shashi Juneja appeared for the State of J&K with Advocate Priyanka Bharihoke..Read the Judgment: