Coming straight to the nub of the matter, let me begin at the very beginning by first and foremost pointing out that in a landmark judgment with far reaching consequences that will benefit those prisoners who are kept in solitary confinement, the Uttarakhand High Court delivered a landmark judgment in the case of State of Uttarakhand v 1. Mehtab s/o Tahir Hassan 2. Sushil @Bhura s/o Gulab Singh Criminal Reference No. 1 of 2014 on April 27, 2018 in 99 pages wherein it held that the practice to keep the convict in custodial segregation/solitary confinement before the exhaustion of his constitutional, legal and fundamental rights is unconstitutional. It thus abolished the practice of keeping death row convicts in isolation immediately after the sentence is pronounced, adding that solitary confinement was an “anarchic and cruel practice which amounts to torture and can cause immense pain, agony and anxiety” to inmates. I am sure that this landmark judgment will receive utmost respect not just from lower courts and high courts but also from Supreme Court which is the top court in our country! This landmark judgment must be studied by every person who has even the slightest of interest in law and legal reforms.
While craving for the exclusive indulgence of esteemed readers, it must be informed here that the Uttarakhand High Court in an exemplary and landmark judgment has very rightly held in para 99 that, “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. It will amount to additional punishment. It also amounts to torture and violative of his basic human rights.” The Bench of Uttarakhand High Court comprising of Justice Rajiv Sharma and Justice Alok Singh commendably held in para 100 of the landmark judgment that, “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.”
For esteemed readers exclusive indulgence, it must also be informed here that the Bench also held that, “This should be done only after the convict has exhausted all the possible options to the highest levels including an appeal in the Supreme Court as well as mercy petition to the President.” The Bench also minced no words in making it absolutely clear that, “The practice was in violation of Article 21 of the Constitution that guarantees protection of life and personal liberty and Article 20(2) which says that no person shall be prosecuted and punished for the same offence more than once.” It held that isolating the convict was an “additional punishment” and amounts to “torture and violation of his basic human rights”.
Going forward, the Bench also held that, “This practice to keep the convict in solitary confinement before the exhaustion of his constitutional, legal and fundamental rights is without authority of law.” According to the 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. It must be followed in letter and spirit.
It would be pertinent to mention here that 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 the murder and rape of a 55-year-old woman in the district and had challenged the death sentence. 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 Scheduled Caste or Scheduled Tribe community. Additionally, the State Government had filed criminal reference for confirmation of death sentence imposed on the convicts.
As it turned out, during the hearing, the Uttarakhand High 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”. In concluding so, the court pointed out that, “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.”
Truth be told, we see that at present, prisons in Uttarakhand and UP follow the Uttar Pradesh Jail Manual according to which 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. He is kept in solitary confinement till he is acquitted or pardoned. The convict is only permitted half an hour in the morning and in the evening to occupy the verandah in front of his cell.
By the way, after confirmation of the death penalty, the High Court looked into the procedure adopted by the State post such confirmation. Referring to the Uttar Pradesh Jail Manual, the High 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.
Be it noted, it also pointed out that, “The UP 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.” 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.”
Needless to say, the Bench made it a point to underscore that law should be humane and reformative and no purpose would be achieved by keeping the convict in segregation for an indefinite period. Citing United Nations Standard Minimum Rules for the Treatment of Prisoners, which are universally acknowledged minimum standards for the management of prison facilities and treatment of prisoners, the Uttarakhand High Court Bench also sought to make it clear that solitary confinement should be used only in exceptional cases as a last resort. It should not be used every now and then.
Simply put, the Bench observed that keeping a convict in an isolated cell has psychiatric impact on him and could affect his health. The court while citing studies also pointed out that, “It causes him heart palpitations (awareness of strong and/or rapid heartbeat while at rest), diaphoresis (sudden excessive sweating), weight loss and sometimes diarrhea, lethargy, weakness, tremulousness (shaking), feeling cold, aggravation of pre-existing medical problems, anxiety, ranging from feelings of tension to full blown panic attacks, persistent low level of stress, irritability or anxiousness, fear of impending 96 death, panic attacks, depression, varying from 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, depersonalization/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.”
All said and done, this landmark judgment is a real eye opener! At the risk of repetition, it must be said again that this landmark judgment by Uttarakhand High Court really not just deserves unlimited appreciation but also deserves to be emulated not just by lower courts but also by All High Courts and Supreme Court also. I am sure that this landmark judgment will certainly always get the respect that it deserves and will be emulated by all courts from now onwards!
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