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)
