A day after the 12th Judge of Calcutta Civil and Sessions Court, Basudeb Majumdar, pronounced capital punishment for all the seven accused involved in the attack on American Centre, a news report said that the main accused Aftab Ansari was led to Cell No. 3 of Alipore Central Jail. It was the same cell that Dhananjoy Chatterjee had left for the last time on August 24, 2004, before he took his last steps to the gallows. Like Ansari, all other six convicts were similarly kept in solitary confinement in Alipore and Presidency Jails.
However, not many in this country know that keeping prisoners in solitary confinement at the mere strength of a Sessions Court death verdict runs contrary to the existing law and a quarter century old firm directive from Supreme Court passed by Justice V. R. Krishna Iyer in the famous Sunil Batra case in 1978. Surprisingly, despite such a verdict, all those who were sentenced to death by the Sessions Court were herded into solitary confinement in the condemned cell in prisons on the same day of the verdict.
In 2003, five condemned prisoners of Kannur Jail belonging to CPI-M, whom Thalassery Sessions Judge convicted with death sentence for killing the BJYM-RSS leader K T Jayakrishnan, successfully moved Kerala High Court questioning this illegal jail practice. Admitting their plea, the High Court ordered to shift all of them from solitary confinement. Today, none of the total 15 condemned prisoners in Kerala jails are languishing under solitary confinement.
Concurring with the five CPI-M prisoners’ contention against solitary confinement, the Kerala High Court Division Bench, comprising Justices J.B.Koshy and K. Thankappan said on October 22, 2003, that since "sentence of death by the Session Court is subject to confirmation by the High Court, it cannot be said that one is sentenced to death."
It was also pointed out that the word used by the Sessions Court is "convicted person" under Section 366(2), and not a "person sentenced to death". Therefore, the Sessions Court is empowered only to send them to jail as convicted prisoners under Section 302.
Pointing out that the provisions of the Prison Manual as well as Sec. 30(2) of the Prisons Act deals only with "prisoners under sentence of death", the High Court said: "The practice adopted in the jail till now cannot be a ground of putting the petitioners in solitary confinement or separate condemned cells."
By pointing out that due confirmation by High Court is necessary for death sentence, the High Court further said: Since "the petitioners who are sent to jail under warrant under Section 366(2) of the Cr.P.C. are (only) convicted prisoners, they are entitled to be classified as per the Jail Rules and Manuals and they are entitled to similar privileges which are granted to (all) other (convicted) prisoners…. Till their final executable sentence is passed (by the High Court), the petitioners cannot be treated as condemned prisoners for the purpose of Sec. 30(2) of the Prisons Act, 1894. Pending confirmation of the sentence, the petitioners are to be treated as (only) convicted prisoners….(and) are entitled to classification facilities. The jail authorities are competent to take all steps to ensure safety and security of the petitioners subject to conformity with the Jail Rules."
It was also pointed out that "until the sentence of death passed by the Court of Session is confirmed by High Court, they cannot be termed as prisoners sentenced to death as contemplated under Sec.30 (1) of the Prisons Act and Chapter XLVIII of the Rules."
Quoting extensively from the Supreme Court verdict in Sunil Batra case of 1978, upon which the convicted prisoners relied mainly to oppose their solitary confinement, the Kerala High Court said, "a person can be said to be sentenced to death only after all judicial and other constitutional remedies are over….The expression ‘prisoner under sentence of death’… can only mean the prisoner whose sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial or constitutional procedure. In other words, it must be a sentence which the authority charged with the duty to execute and carry out must proceed to carry out without intervention from any outside authority."
It further quoted the apex court, thus: "…the trial of an accused person under sentence of death does not conclude with the termination of the proceedings in the Court of Session because of the reason that the sentence of the death passed by the Sessions Court is subject to confirmation by the High Court. A trial cannot be deemed to have concluded till an executable sentence is passed by a competent court…. therefore, the prisoner can be said to be under the sentence of death only when the death sentence is beyond judicial scrutiny and would be operative without any intervention from any other authority. Till then, the person who is awarded capital punishment cannot be said to be a prisoner under sentence of death… This interpretative process would, we hope, to a great extent relieve the torment and torture implicit in sub-sec (2) of S.30 reducing the period of such confinement to a short duration."
Refuting the prosecution contention that even though a High Court confirmation is necessary, the Sessions Court verdict "is a sentence to death", the Kerala High Court said: "We are unable to accept the above proposition because Section 366 (1) itself very clearly says that sentence of death by the Session Court is subject to confirmation by the High Court, it cannot be said that one is sentenced to death. Further, under Section 366(2) the word used is ‘convicted person’ and not a ‘person sentenced to death’. So the Sessions Court is empowered to send them in jail as they are convicted under Section 302. The provisions of the Prison Manual as well as Sec. 30(2) of the Prisons Act deals only the prisoners under sentence of death."
Similarly, distancing from the prosecution argument that "whenever right of appeal is provided against conviction of sentence, it cannot be stated that all such persons are not sentenced for imprisonment till appellate remedies are over", the High Court elaborated: "Whatever may be the force in the argument by the prosecution, we are bound by the Apex Court decision in Sunil Batra’s case (which) clearly held that unless the death sentence is confirmed by the High Court, it cannot be treated as prisoners sentenced to death. In the above circumstances, the petitioners cannot be sent to condemned cell. The Supreme Court also held that such practice of keeping prisoners in condemned cell before confirmation is a pre-constitutional practice and such practices should be avoided. Therefore, practice adopted in the jail till now cannot be a ground of putting the petitioners in solitary confinement or separate condemned cells. Only for death sentence confirmation by High Court is necessary. Hence, we are unable to accept the contention raised by the prosecution."
Dealing with the common argument that convicted prisoners for death should be kept separately from other prisoners since they are likely to be more violent and may try to escape, the Kerala High Court said: "As held by the Supreme Court in Sunil Batra’s case as well as Triveniben’s case, the prisoner who is convicted under Section 302 and sentenced to death by the Sessions Court subject to confirmation of the High Court (and) sent to jail is not undergoing rigorous imprisonment or simple imprisonment. Even though jail authorities will be justified in taking precautionary measures and imposing special conditions like putting in separate wards etc. considering the safety, it cannot imply that each one should be kept in a separate room, as it will amount to solitary confinement whatever the term used. Day and night watch also can be arranged for security and safety of the prisoners. The jail authorities are competent to take all steps for safety and security of the petitioners in conformity with the Jail Rules, but they cannot be treated as condemned prisoners and put to condemned cell or separate cell."
In particular, Justice Krishna Iyer’s verdict in Sunil Batra case, which is regarded as a Magna Carta for prison reforms, termed solitary confinement as inhuman: "If solitary confinement is a revolt against society’s humane essence, there is no reason to permit the same punishment to be smuggled into the prison system by naming it differently. Law is not formal label, nor logomachies, but a working technique of justice. The Penal Code and Criminal Procedure Code regard punitive solitude as too harsh and the legislature cannot be intended to permit preventive solitary confinement, released even from the restrictions of Sections 73 and 74, IPC, Section 29 of the Prisons Act and the restrictive Prison Rules. It would be extraordinary that a far worse solitary confinement, masked as safe custody, sans maximum limit, sans intermission, sans judicial oversight or natural justice, would be sanctioned. Common sense quarrels with such nonsense."
The famous Sunil Batra verdict held further: "Solitary confinement is by itself a substantive punishment which can be imposed only by a court of law as provided in Sections 73 and 74 of the Penal Code…. Section 30 (2) merely provides for confinement of prisoner under sentence of death in a cell apart from other prisoners and he is to be placed day and night under the charge of a guard. Such confinement can neither be cellular nor separate and in any event, it cannot be a solitary confinement."
Justice Iyer stressed: "The expression ‘prisoner under sentence of death’ can only mean a prisoner whose sentence of death has become final and conclusive and indefeasible, which cannot be annulled or voided by any judicial or constitutional procedure. To be ‘under sentence of death’ means ‘to be under a finally executable death sentence’."
Upholding the Constitutional rights of a prisoner under death sentence, Justice Iyer unequivocally insisted in the same verdict: "Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed. If Section 30 (2) of the Prisons Act enables the prison authorities to impose solitary confinement on a prisoner under death sentence, not as a consequence of violation of prison discipline but on the sole and solitary ground that the prisoner is one under sentence of death, the provision would offend Articles 14, 19 and 20."
Asian Tribune, 2005-05-03