Solitary Confinement Of Death Convict Prior To Rejection Of Mercy Petition Palpably Illegal: SC

BY: ASHOK KINI2 May 2019 8:41 AM 

"On receipt of a mercy petition, the Department concerned has to call for all the records and materials connected with the conviction." 

The Supreme Court has observed that solitary confinement of a person sentenced to death prior to the rejection of mercy petition is palpably illegal. The bench comprising Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice S. Abdul Nazeer upheld the Punjab and Haryana High Court judgment that had commuted death sentence awarded to a murder accused whose mercy petition was rejected by the President of India in 2013.

The Death sentence awarded to Dharam Pal, in a murder case, was affirmed by the Supreme Court in the year 1999. His petition seeking pardon, filed in 1999, was rejected by the President in the year 2013. The Punjab and Haryana High Court allowed his writ petition and commuted the death sentence to life imprisonment in light of the change in circumstances- his acquittal in the rape case, which was an important deciding factor by this Court in negating his appeal and delay in deciding his mercy petition by the President, among other ground.

Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice S. Abdul Nazeer 

Convict cannot be said to be "under sentence of death" till the mercy petition is rejected.

In this proceeding, the centre admitted that Dharam Pal remained in solitary confinement for a period of 18 years, and has undergone imprisonment for a total period of more than 25 years till date. Referring to Sunil Batra judgment, the bench observed that even if the Sessions Court has sentenced the convict to death, subject to the confirmation of the High Court, or even if the appeal is filed before the High Court and the Supreme Court against the imposition of death punishment and the same is pending, the convict cannot be said to be "under sentence of death" till the mercy petition filed before the Governor or the President is rejected. 

In this regard, the bench observed: 

"Throughout the period of deciding his mercy petition by the President, he was kept in solitary confinement in various jails. Solitary confinement prior to the disposal of the mercy petition is per se illegal and amounts to separate and additional punishment not authorized by law… …. Thus, solitary confinement prior to the rejection of mercy petition, which has taken place in spite of various decisions of this Court to the contrary, is unfortunate and palpably illegal. In the present case, the Respondent underwent such a long period of solitary confinement that too, prior to his mercy petition being rejected, thereby making it a formidable case for commuting his death sentence into life imprisonment, as rightly held by the High Court" 

Prolonged Delay In Execution Of Death Sentence Violates Fundamental Right

The court also upheld the High Court observation that the prolonged delay in execution of a sentence of death has a dehumanizing effect and this has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the fundamental right under Article 21 of the Constitution. 

All Relevant Materials Should Be Placed Before President While He Considers Mercy Petition

The bench further observed that the fact that he was subsequently acquitted in the rape case (SC while confirming his death sentence had taken note of the conviction by Trial Court) has great bearing on the quantum on sentence that ought to be awarded to him and the same should have been brought to the notice of the President while deciding his mercy petition.

On receipt of a mercy petition, the Department concerned has to call for all the records and materials connected with the conviction. When the matter is placed before the President, it is incumbent on the part of the concerned authority to place all the materials such as judgments of the courts, as well as any other relevant material connected with the conviction. 

The bench, taking into account all circumstances, finally directed his release after the completion of 35 years of actual imprisonment including the period already undergone by him.

Source: https://www.livelaw.in/top-stories/solitary-confinement-prior-to-rejection-mercy-petition-illegal--144707 (accessed on 30 May 2019)

High Court abolishes solitary confinement for murder convicts in Haryana jails (Haryana)

Written by Sofi Ahsan |Chandigarh |Updated: December 8, 2018 8:53:15 am 

Removing the provision will require the Punjab government to make amendments to the Jail Manual or for the court, acting on a legal challenge, to quash the provision.

The Punjab and Haryana High Court Friday abolished the practice of keeping death row inmates in solitary confinement in Haryana jails, ruling that it is without authority of law and amounts to additional punishment. The order for abolishing the practice came as part of a judgment commuting the death sentence of three persons convicted last year by a Mahendergarh court for rape and murder of a nine-year-old in 2014 to a mandatory 20-year imprisonment without remissions. The court order for “abolishing” is specific to the “practice” adopted by jail authorities in Haryana, but the division bench of Justices Rajiv Sharma and Gurvinder Singh Gill has not passed any order to remove the provision which forms part of the Punjab Jail Manual which has been adopted by Haryana.

 Justice Gurvinder Singh Gill

Removing the provision will require the Punjab government to make amendments to the Jail Manual or for the court, acting on a legal challenge, to quash the provision. The bench called the provision “anarchic, cruel and insensitive,” reflective of “a colonial mindset” and violative of Articles 20 (2) and Article 21. In a 111-page judgment, the court said the practice amounts to torture and is violative of the person’s basic human rights. “The convict shall not be segregated/isolated till the sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial process. The period to keep a convict sentenced to death in segregation/isolation should be for the shortest possible time i.e. 2-3 days.”

 Justice Rajiv Sharma

The judges in the verdict have take note of the research done by American Civil Liberties Union on the medical consequences which people in solitary confinement face, an article published in the Harvard Law Review, a 2005 US Supreme Court judgment, a 1978 Indian Supreme Court judgment and a book on solitary confinement written by Sharon Shalev. The Punjab Jail Manual, according to the judgment, specifies that at present “every prisoner condemned to death is to be confined in a cell apart from all other prisoners and is to be placed by day and by night under the charge of a special guard. No person can communicate with him without the authority of the Superintendent. The prisoner condemned to death is only permitted to occupy the court yard of his cell for half an hour each morning and evening.”

The verdict was passed in the appeals filed by three convicts against the death sentence awarded to them and the murder reference sent by the trial court for confirmation by the High Court. The convicts, according to their advocates, were immediately sent to solitary confinement after being sentenced to death, In November 2014, the nine-year-old victim had been kidnapped by the accused Arun, Rajesh and Deepak when she had gone out with a mouse trap in her hand to drop the mouse outside. She was raped and throttled by the convicts, according to police. “We are of the view that this case does not fall in the ambit of the “rarest of rare case” for awarding death sentence to the appellants. Though according to the final opinion, death is violent but it cannot be termed that it has pricked collective conscious of the society. The young girl was killed by throttling but it cannot be termed gruesome murder,” the bench said, while providing reasoning for commuting the death sentence.

Source: https://indianexpress.com/article/india/high-court-abolishes-solitary-confinement-for-murder-convicts-in-haryana-jails-5484083/ (Accessed 25 December 2018)

Solitary Confinement Of A Death Convict Before The Exhaustion Of His Complete Legal And Constitutional Remedies Unconstitutional: Uttarakhand HC

BY: APOORVA MANDHANI APRIL 29, 2018 12:18 PM 

The Uttarakhand High Court held that practice to keep the convict in custodial segregation/solitary confinement before the exhaustion of his constitutional, legal and fundamental rights is unconstitutional. 

The Bench comprising Justice Rajiv Sharma and Justice Alok Singh ruled, “It will amount to additional punishment. It also amounts to torture and violative of his basic human rights. Accordingly, we abolish the practice adopted by the jail authorities, by segregating a convict sentenced to death, immediately after the confirmation of sentence by the High Court, being unconstitutional. The convict shall not be segregated/ isolated till the sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial or constitutional procedure. The period to keep a convict sentenced to death in segregation/isolation should be for the shortest possible time i.e. 2-3 days. The appellants shall not be kept in segregation till they are found to be “prisoners sentenced to death”, in view of the law discussed hereinabove. 

Justice Alok Singh (L) and Justice Rajiv Sharma (R)

Confirmation of death sentence 

The Court was hearing appeals filed by convicts challenging the death sentence awarded to them for gang rape and murder of a 55-year-old woman. They had also been convicted under Section 3(2)(v) of the SC/ST Act, which prescribes life imprisonment for a person who commits an IPC offence punishable with a 10-year imprisonment or more against a person for the reason of them being a member of the SC or ST community. Additionally, the State Government had filed criminal reference for confirmation of death sentence imposed on the convicts. 

During the hearing, the Court opined that the ingredients of 3(2)(v) of the Act “were lacking from the very beginning and the prosecution has not led any evidence to prove this charge.” It, however, opined that the case would nevertheless fall into the category of“rarest of rare cases”, explaining, 

“The instant case would fall in the category of the rarest of rare case. The appellants have caused as many as 10 injuries to the deceased. They have mutilated the private parts of the deceased. Injury No.8 itself was sufficient to cause death of the deceased. Though the instant case is based on the circumstantial evidence but the chain is complete. It is a case of rape and brutal murder of the deceased.” 

Solitary confinement

After confirmation of the death penalty, the Court looked into the procedure adopted by the State post such confirmation. Referring to the Uttar Pradesh Jail Manual, the Court noted that every convict awarded death sentence is to be confined in a cell apart from all other prisoners and is to be placed under the watch of a special guard. Further, he is to be allowed only half an hour twice a day out of his cell, and needs to be handcuffed during this time. 

It then referred to several researches and precedents on the subject to note the psychological impact of such confinement, observing,“There is no scientific reason why the convict sentenced to death should be kept in isolation for indefinite period till he exhausts all his constitutional and legal remedies. It causes immense pain, agony and anxiety to the condemned convict. It is violative of Articles 20(2) and 21 of the Constitution of India. A man, even sentenced to death, has certain privileges and rights which cannot be denied to him due to colonial mindset. The provisions of U.P. Jail Manual are anarchic, cruel and insensitive.” 

The provisions of U.P. Jail Manual are anarchic, cruel and insensitive 

The Bench also held that the provisions of U.P. Jail Manual are anarchic, cruel and insensitive.

“The U.P. Jail Manual also lays down that a warder shall not allow any person to go near or communicate with the convicts, except the Superintendent and prescribed authorities. Under the U.P. Jail Manual, the prisoner is supposed to be in isolation for more than 23 hours a day. This is against the Nelson Mandela Rules. He has no contact with outside world. He is kept in solitary confinement till he is acquitted or pardoned. There is no scientific reason why the convict sentenced to death should be kept in isolation for indefinite period till he exhausts all his constitutional and legal remedies. It causes immense pain, agony and anxiety to the condemned convict. It is violative of Articles 20(2) and 21 of the Constitution of India. A man, even sentenced to death, has certain privileges and rights which cannot be denied to him due to colonial mindset”. 

The Bench observed that keeping a convict in an isolated cell has psychiatric impact on him. 

“It causes him heart palpitations (awareness of strong and/or rapid heartbeat while at rest), diaphoresis (sudden excessive sweating), low mood to clinical depression, emotional flatness/blunting – loss of ability to have any ‘feelings’, emotional ability (mood swings), hopelessness, social withdrawal; loss of initiation of activity or ideas; apathy; lethargy, major depression, anger, ranging from irritability to full blown rage, irritability and hostility, poor impulse control, outbursts of physical and verbal violence against others, self and objects, unprovoked anger, sometimes manifesting as rage, cognitive disturbances, ranging from lack of concentration to confusional states, short attention span, poor concentration, poor memory, confused thought processes; disorientation, perceptual distortions, ranging from hypersensitivity to hallucinations, hypersensitivity to noises and smells, distortions of sensation (e.g. walls closing in), disorientation in time and space, depersonalisation/derealisation, hallucinations affecting all five senses, visual, auditory, tactile, olfactory and gustatory (e.g.hallucinations of objects or people appearing in the cell, or hearing voices when no-one is actually speaking), paranoia and psychosis, ranging from obsessional thoughts to full blown psychosis, recurrent and persistent thoughts (ruminations) often of a violent and vengeful character (e.g. directed against prison staff), paranoid ideas – often persecutory, psychotic episodes or states: psychotic depression, schizophrenia, self-harm and suicide etc”. 

Source: https://www.livelaw.in/solitary-confinement-of-a-death-convict-before-the-exhaustion-of-his-complete-legal-and-constitutional-remedies-unconstitutional-uttarakhand-hc-read-judgment/ (Accessed 24 December 2018)

Abolish solitary confinement of death convicts: Utttarakhand HC

TNN | Apr 27, 2018, 10.32 PM IST

NAINITAL: In a landmark order, Utttarakhand high court on Friday abolished the practice of keeping a death sentence convict in isolation and added that the “period to keep a convict sentenced to death in segregation/isolation should be for the shortest possible time i.e. 2-3 days” before implementation of the sentence until the convict has exhausted all the possible options to the highest levels including the appeal in apex court as well as mercy petition to the President of India. The 99 page order quoted various studies related to solitary confinement including on prison inmates in Germany in 19th century. 

Uttrakhand High Court

The order by the division bench of justices Rajiv Sharma and Alok Singh in order dates April 27, 2018 stated, “Accordingly, we abolish the practice adopted by the jail authorities, by segregating a convict sentenced to death, immediately after the confirmation of sentence by the high court, being unconstitutional. The convict shall not be segregated/ isolated till the sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial or constitutional procedure. The period to keep a convict sentenced to death in segregation/isolation should be for the shortest possible time i.e. 2-3 days. The appellants shall not be kept in segregation till they are found to be “prisoners sentenced to death”, in view of the law discussed hereinabove.” Citing “United Nations Standard Minimum Rules for the Treatment of Prisoners” the division bench remarked that the “solitary confinement shall be used only in exceptional cases as a last resort. Taking note that the solitary confinement causes “immense pain, agony and anxiety to the condemned convict”, the court remarked that the practice is “violative of Articles 20(2) and 21 of the Constitution of India”. “A man, even sentenced to death, has certain privileges and rights which cannot be denied to him due to colonial mindset,” said the court in the order. 

Justice Alok Singh (L) Justice Rajiv Sharma (R)

Calling the provisions of solitary confinement and practices related to it the bench called the practice “anarchic, cruel and insensitive”. Stating that the law should be humane and reformative the court observed that no purpose “would ever be achieved by keeping the convict in an isolation/segregation for indefinite period”. Further adding that confining the convict to isolation is an “additional punishment” and amounts to “torture and violative of his basic human rights” the court stated, “This practice to keep the convict in custodial segregation/solitary confinement before the exhaustion of his constitutional, legal and fundamental rights is without authority of law.” According to present rules of Uttar Pradesh Jail Manuals which is adopted by Uttarakhand too, every convict under sentence of death is to be confined in a cell apart from all other prisoners and is to be placed by day and by night under the charge of a special guard. The convict inmate of the prison is only permitted half an hour in the morning and in evening to occupy the verandah in front of his cell. 

During this period, the convict has to remain handcuffed. The lantern is to be kept burning from sunrise to sunset in front of the grated door of every cell and it shall be so placed as to throw a good light on the condemned convict. The inmate is permitted only half an hour to come out of his cell to occupy the verandah. Even in that stage, he is to be handcuffed. He is put under the glaze of light. He is to be kept always under the observation of guards. The bench observed that keeping a convict in an isolated cell has psychiatric impact on him and cited various physical, mental health hazards including heart palpitations, diaphoresis, insomnia, back and other joint pains, deterioration of eyesight, poor appetite, weight loss and sometimes diarrhoea, lethargy, weakness, tremulousness, psychotic episodes or states: psychotic depression, schizophrenia, self-harm and suicidal tendencies. 

According to Supreme Court guidelines on various procedures before executing a death convict, solitary or single cell confinement prior to rejection of the mercy petition by the President is unconstitutional. The directions of the court came while hearing an appeal by Sushil Singh and Mehtab Hussain who were sentenced to death by a lower court in Dehradun in 2014 for murder and rape of a 55-year-old woman in the district.

Source: https://timesofindia.indiatimes.com/city/dehradun/abolish-solitary-confinement-of-death-convicts-utttarakhand-hc/articleshowprint/63944676.cms (Accessed 24 December 2018)