Solitary Confinement

Author: Divya Sharma

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Introduction:

Solitary confinement can be understood as a confinement of a prisoner which secludes him from the sight of and communication with other prisoners. It is a form of punishment in which the prisoner or an inmate is isolated from any type of human contact. In Kishore Singh Ravinder Dev v. State of Rajasthan,[1] Supreme Court defined solitary confinement as a confinement in which there is complete isolation of prisoners from other co-prisoners and segregation from the outside world of fellow prisoners. It is an extreme measure and is to be rarely invoked in exceptional cases, of unparalleled brutality and atrocity.[2] As per the United Nations Standard Minimum Rules for the Treatment of Prisoners[3], solitary confinement is a confinement of prisoner for twenty-two hours or more per day without any human contact. Late Prime Minister Mr. Jawahar Lal Nehru in his autobiography named “Jawaharlal Nehru; An Auto biography”, had put forwarded his views on solitary confinement. He says that “Solitary confinement even for a short period, is a most painful affair; for it to be prolonged for years is a terrible thing. It means the slow and continuous deterioration of the mind until it beings to border on insanity; and the appearance of a look of vacancy, or a frightened animal type of expression. It is killing of the spirit by degrees, the slow vivisection of the soul. Even if a man survives it, he becomes abnormal and an absolute misfit in the world”. Solitary confinement tortures the inmate physically, mentally, emotionally and is considered as the most difficult imprisonment.

Solitary Confinement Under Indian Penal Code, 1860:

• Relevant Sections:

Under Indian Penal Code, 1860,section 73 deals with the Solitary Confinement and puts certain limits and it reads as follows:

“Whenever any person is convicted of an offence for which under this Code the court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole, according to the following scale, that is to say-

A time not exceeding one month if the term of imprisonment shall not exceed six months;

A time not exceeding two months if the term of imprisonment shall exceed six months and [shall not exceed one] year;

A time not exceeding three months if the term of imprisonment shall exceed one year.”[4]

• Important Elements:

1. Rigorous Punishment:

Only in cases where the court has power to sentence the offender with rigorous punishment, only in such cases solitary confinement can be imposed.Under Indian Penal Code, 1860, imprisonment can be categorized in two descriptions:

1. Rigorous;
2. Simple

Rigorous punishments can be defined as a punishment with hard labour, in which convicted person is put to do some hard work in the prison for which he receives minimum wages. There are offences under the Code for which court has power to impose rigorous imprisonment. On the other hand, simple imprisonments are imposed only for the lighter offences. So, it is clear from the language of section 73 of the Code that offences for which the Court has power to sentence the offender with rigorous imprisonment, only in those cases Court may order to keep the offender in solitary confinement.

2. Solitary confinement cannot exceed three months in the whole:

As per section 73 of the code, maximum period for solitary confinement is three months and it must not exceed beyond 14 days at a time. From the language of the section, it shall be deducted that:

1. If the term of imprisonment does not exceed beyond six months, then in that case the offender cannot be kept in solitary confinement for the time exceeding one month.
2. If the term of imprisonment lies between six months and one year, then in that case the offender cannot be kept in solitary confinement for the time exceeding two months.
3. If the term of imprisonment does exceed beyond one year, then in that case the offender cannot be kept in solitary confinement for the time exceeding three months.

Term of Imprisonment	Term of Solitary Confinement
Less than 6 Months	1 Month
6 Months to 1 Year	2 Months
More than 1 Year	3 Months

In India, judiciary and executive both have given powers to keep the prisoner in a solitary confinement but in both the cases it can be for a maximum period of three months only.

Section 74 talks about limits of solitary confinement and it reads as follows:

“In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration than such periods; and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven daysin any one month of the whole imprisonment awarded, with interval between the periods of solitary confinement of not less duration than such periods.”

This section puts certain limits on the punishment of solitary confinement. Due to gravity of the solitary confinement, legislators have specifically provided that in no case an inmate can be kept for more than 14 days at a time. The section authorizes the judiciary that solitary confinement must not be given for more than three months and in a case where it exceeds three months than in such case solitary confinement shall not exceed seven days in a month. Due to the barbaric, inhumane and torturous nature of the solitary confinement, legislator had put these limitations with the help of section 74 of the Indian Penal Code, 1860 otherwise it would be violative of basic human right of the prisoners.

Solitary Confinement under Prisons Act, 1894

Section 29 of The Prisons Act, 1894 deals with solitary confinement and it reads as follows:

“No cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer of the prison, and every prisoner so confined in a cell for more than twenty- four hours,whether as a punishment or otherwise, shall be visited atleast once a day by the Medical Officer or Medical Subordinate.”

Pertinent Judicial Interpretations:

• Sunil Batra Delhi Administration[5]

This petition was initiated by one of the prisoners under death sentence. He through a letter alleged that the jail warden had pierced a baton into the anus of some another co-prisoner who is serving under life sentence in the same jail for a reason to extract money. Supreme Court held that no solitary confinement or any other type of hard labour shall be imposed without judicial appraisal of the Sessions judge.This was a case where Supreme Court had considered the validity of solitary confinement.

• Charles Sobhraj Superintendent, Central Jail[6]

In this case, Supreme Court has held that any harsh isolation of a prisoner from the society of fellow prisoners by cellular detention under the Prisons Act, 1894 sections 29 and 30 is penal, and it must be inflicted only in accordance with fair procedure; and in the absence of which the confinement would be violative of Article 21 of the Constitution.

• Kishore Singh Ravinder Dev State of Rajasthan[7]

Supreme Court held that for security purposes only in exceptional cases prisoner can be kept in solitary confinement. Further, court was of the opinion that to keep prisoners in isolation i.e., in solitary rooms for long periods from eight months to eleven months are enough to be regarded as torturous and barbarous and would amount to breach of law which had laid down by the Supreme Court inSunil Batrav. Delhi Administration.[8]. So,prisoner can be kept in solitary confinement only in rarest of rare cases otherwise it would be a major violation of Article 21 of the Indian Constitution. Also, sections 30(2) and 56 of Prisons Act, 1894 are violation of prisoners’ rights which are guaranteed by the Constitution of India.

• Present Scenario: State of Uttarakhandv. Mehtab, Sushil and Bhura

The debate over the legitimacy of the solitary confinement can be considered as old as the solitary confinement punishment itself. Advocates in favor of its abolition say that it is inhuman, barbaric and most torturous punishment as it violates basic human right. So, in the view of its increasing trend towards its abolition, Uttarakhand High Court delivered a judgment and held that to keep the inmate in solitary confinement before the exhaustion of his rights (constitutional, legal and fundamental) is violative of constitution. According to the Bench, solitary confinement is not a part of the punishment but it amounts to the additional punishment adopted by the jail authorities. What happens is as soon as the punishment of death penalty is confirmed, jail authorities put the convict in isolation in a solitary confinement which secludes him from any type of contact from the co-prisoners. Court in the above mentioned case abolishes this practice and held it unconstitutional. The convict shall not be isolated till the death sentence has become final, conclusive and indefeasible which cannot be challenged or further annulled or voided by any procedure. Further, court was of the opinion that the prisoner can be kept in solitary confinement for the shortest possible time. Court advocated that such treatment is barbaric, inhuman which causes immense pain and agony and violates Articles 20(2)[9] and 21[10] of the Indian Constitution. So, with this decision, High Court has abolished the practice to keep death row convicts in solitary confinement after the sentence is pronounced.

Conclusion:

In a period of solitary confinement, prisoner lives in complete isolation which deprives him from any type of human contact except from the jail/prison staff. The debate over its legitimacy is never ending. Section 73 and 74 of the Code give legal recognition to solitary confinement and puts certain limits due to its nature of being so barbaric which affects the prisoner physically as well as mentally. It can be awarded only to those convicts on whom Court has power to sentence them for rigorous imprisonment. As it can cause immense pain and agony and it affects person’s mental, physical and emotional health, so, in any circumstances, it cannot be awarded for a period of more than 14 days at a time. Indian Penal Code, 1860 gives power to keep the prisoner in solitary confinement for a maximum period of three months. If a term of imprisonment awarded is less than six months than the maximum period for which the prisoner can be kept in solitary confinement is one month. In case, where term of imprisonment awarded is more than six months but less than one year than in that case prisoner can be kept for the maxim period of two months in solitary confinement. And in the third case where the term of imprisonment awarded exceeds one year than in that case maximum period for solitary confinement can be of three months. It can be done either by judiciary or executive. Also, if a prisoner is kept in isolation for a period exceeding three months than in that case solitary confinement cannot be exceeded seven days in a month. But with the time, the judiciary is delivering the judgments in the favor of its abolition and held that to keep the inmate in solitary confinement before the exhaustion of his rights (constitutional, legal and fundamental) is violative of Indian constitution.

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[1] Air 1981 SC 625.

[2]Ibid.

[3] Also known as The Nelson Mandela Rules, adopted on December 17, 2015 by the UN General Assembly.

[4] Section 73, The Indian Penal Code, 1860.

[5] AIR 1980 SC 1579.

[6] AIR 1978 SC 1514.

[7] AIR 1981 SC 625.

[8] AIR 1980 SC 1579.

[9]No person shall be prosecuted and punished for the same offence more than once.

[10]Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

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About the Author: Divya is a fifth-year law student at National Law University and Judicial Academy, Assam.

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