How Judicial Permissiveness Sustains Solitary Confinement in Indian Prisons – The Criminal Law Blog
-Ayush Gupta
Introduction
The long and contentious aspect of solitary confinement has always been a topic of debate in criminal law jurisprudence, which raises serious human rights and legal concerns. Keeping inmates in confinement for prolonged hours without meaningful human contact has been criticized globally for its harmful physiological and psychological effects. This practice is regulated in India under the Bhartiya Nyaya Sanhita, 2023 and the Prisons Act, 1984. However, despite clear judicial condemnation and progressive judicial orders, solitary confinement is still being blatantly practised across the prisons in India. Often, under statutory segregation, reflecting flaws in institutional accountability and implementation.
Legal Frameworks Governing Solitary Confinement
In 2015, the United Nations adopted “The Nelson Mandela Rules”. These rules are the set of guidelines for the treatment of incarcerated persons. The first international definition of solitary confinement came into existence under these rules. The definition of Solitary Confinement under the Mandela rule is “When a prisoner is confined for 22 hours or more a day, without any meaningful human contact in a cell. And prolonged solitary confinement means if a prisoner is confined for a period of more than 15 consecutive days”.
Sections 11 and 12 of Bhartiya Nyaya Sanhita, 2023 deal with the provisions of Solitary Confinement. Under section 11, the power to award solitary confinement is given to the courts and that too in cases where the offence is punishable with rigorous imprisonment. Three months is the upper limit that a court can grant while awarding a sentence under Section 11. Following is the scale given in BNS for the court when it is awarding solitary confinement to the convict:
(a) a time not exceeding one month if the term of imprisonment shall not exceed six months;
(b) a time not exceeding two months if the term of imprisonment shall exceed six months, and
shall not exceed one year;
(c) a time not exceeding three months if the term of imprisonment shall exceed one year.
Section 12 of BNS imposes further restrictions on solitary confinement by not allowing it to exceed more than fourteen days at a time, with mandatory intervals between periods of confinement.
The Prisons Act 1984 was the first legislation that was brought to regulate prisons. Before this legislation, prisons were mostly governed according to their manuals; still, prisons are governed according to their manuals. But this legislation mainly focuses on the rights of inmates concerning their rehabilitation. Section 29 of the Prisons Act,1984, states that a prison cell can’t be used for solitary confinement unless it is ensured that the prisoner can communicate at any time with the prison officers and a mandatory daily visit with a medical officer is required. If a person is staying in solitary confinement for more than twenty-four hours Section 32 (2) of this act which deals with the convicts of death sentence states that Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under the charge of a guard.
These provisions were designed to ensure that any prisoner subjected to solitary confinement does not have to go through inhumane treatment and to mitigate the potential adverse effects on inmates caused by solitary confinement.
Sunit Batra’s Judgement Enabled Continued Isolation
On several occasions, the issue of solitary confinement was addressed by the Indian Judiciary. While the courts acknowledged the severe adverse physiological and psychological effects on several occasions, they have actively avoided declaring solitary confinement unconstitutional in all forms.
Sunil Batra v. Delhi Administration is a very important landmark case dealing with solitary confinement under section 30 (2) of the Prisons Act, 1984. Justice Krishna Iyer criticized the practice of solitary confinement, calling it “awesome loneliness” and “ psychic trauma”. Justice Desai is also of the view that “ solitary confinement has dehumanising effects on inmates and prolonged isolation of the prisoners is so unnatural that it can lead to insanity. While criticizing the imposition of the de facto imposition of solitary confinement by the jail administration, the court seemed to be okay with the punitive solitary confinement (awarded by the court) under Sections 73 and 74 IPC, now Sections 11 and 12 of BNS, 2023. On one hand, the court notes the abandonment of[12] solitary confinement in the United Kingdom; on the other hand, it interpreted Section 30 (2) of the Prisons Act to permit segregation, not solitary confinement for prisoners under the death sentence. Now, this segregation has become a very convenient tool for prison authorities to keep inmates under a death sentence in solitary confinement.
The reason why the jurisprudence of solitary confinement was problematized after this judgement was that the court missed a great opportunity to abolish all forms of confinement where prisoners are kept in a single cell for twenty-two or more hours, which would have automatically abolished the practice of solitary confinement. The attempt to create a distinction between solitary confinement (prohibited under section 32(2) and separation (permitted) turned out to be a loophole that was blatantly abused by prison authorities, where they kept practising solitary confinement, calling it separation on the grounds of security measures.
The Problem Of Implementation
In the case of Triveniben v. State of Gujarat, the frustration of the Supreme Court can be seen as it states in this judgement that keeping prisoners in solitary confinement amounts to extra unauthorized punishment for the prisoners. This same stance was reiterated in 2019 by the Supreme Court in the case of Union of India v. Dharampal, in which the court said that solitary confinement is essentially a punitive measure and only a court can impose it and not prison officials.
In the case of Kishor Singh Ravinder Dev, the Supreme Court addressed the complaint of insufferable illegal confinement where jail authorities used iron fetters so that the prisoner couldn’t even move within the cell. The court also noted that the petitioner was imprisoned for more than eight months. The court called it barbarous and asked authorities to remove the petitioner’s fetters immediately and release him from the illegal confinement. However, the Jail Superintendent relied on Rules 1(f) and 79 of the Rajasthan Prison Rules, 1952, which support the administrative absolutism of the prison boss. Acknowledging the flaw in the current system, the court asked the state to take serious action to ensure compliance with Sunil Batra’s Judgement.
In the judgment of Shatrughan Chauhan, the petitioners who were convicted of the death sentence were kept in solitary confinement, while the state refused to accept the fact that they kept the petitioners in solitary confinement, the claim was that they were kept in “statutory segregation” due to safety reasons. The court extensively referred to the Sunil Batra case to condemn solitary confinement. The court in this judgement reiterated that only a court is equipped with the power to award solitary confinement. The court further stated that despite several judgements, the actual implementation of provisions is close to reality, again highlighting the lack of effectiveness of the judgements.
One more stark example is the judgment of T.V. Vaitheeswaran . In this case, the appellant, who had received a death sentence, was kept in solitary confinement for eight years. The court said, “ contrary to its ruling in the Sunil Batra judgement”. The court acknowledged the inhumane effects of prolonged solitary confinement. In concluding remarks court stated that such prolonged confinement was an unjust, unfair and unreasonable procedure and it is a clear violation of Article 21. This case underscores the extreme and severe consequences prisoners had to face due to non-compliance with earlier rulings against solitary confinement. The Supreme Court Committee prison reforms, headed by Justice Roy, revealed that several states are still keeping death row convicts in solitary confinement, which is a clear violation of the court ruling in Sunil Batra’s ruling. A total of 12 Jails were surveyed in various states, and it was found that, except for Jharkhand, all the other states had policies for the segregation of such prisoners. Even in a fairly recent case of Ajay Kumar Pal vs Union Of India in 2014, the Supreme Court held that Segregating a prisoner who is having a death sentence would be a violation of his rights under Article 21 of the Constitution. This report highlighted the widespread non-compliance with judicial orders and the judiciary’s ineffectiveness in enforcing its judgments.
Despite a very clear stance of the Supreme Court against the misuse of solitary confinement, it has continuously failed in its application in Indian Prisons over the decades. Progressive judgements of the judiciary could not be enforced as tangible reforms within the penal system. Hence, prison authorities continue to blatantly practice solitary confinement, which violates the constitutional rights of the prisoners.
Conclusion
The Indian judiciary, in very clear words, has denounced the practice of solitary confinement, making it very clear that only the court is the competent authority to punish solitary confinement and not prison officials. Yet judgments like Sunit Batra’s and Ajay Kumar Pal have not been able to achieve the progressive goal of systemic change. Administrative loopholes are the reasons for the continued practice of solitary confinement, which violates Article 21 of the Constitution. By implementing the Sunil Batra judgment in the same way the Supreme Court intended to implement it, the violation of the rights of the inmates can be greatly reduced. Since state governments are responsible for the administration of prisons, holding them accountable in the court of law can be a great progressive step, which will create deterrence among prison officials.
The author is a law student (LL.B. Hons.) at the National Law School of India University, Bengaluru, Batch of 2027. His interests lie in criminal and constitutional law.
