IMPORTANT POINT
A prisoner is not on death row until his sentence is beyond judicial scrutiny and becomes operative without any intervention from any other authority. Till then he is entitled to the rights under Articles 14 and 21 of the Constitution.

ORDER

Madan B. Lokur, J

1. This application for directions and declarations has been filed in which it is prayed, inter alia, that prisoners sentenced to death by any court have a right to be treated at par with other convicted prisoners and should be provided all similar facilities as are provided to other prisoners. It is also prayed that solitary confinement of prisoners on death row or their separate and cellular confinement be struck down as unconstitutional.

2. We do not think it necessary to go into all the issues raised in the application but find it necessary to place in perspective certain aspects of the rights of prisoners.

3. One of the important questions before us is: When could it be said that a convict is under the sentence of death? Could it be said that when the Trial Court convicts a prisoner and sentences him to death, then that prisoner is a death row prisoner? Or, could it be said that when the death sentence is beyond judicial scrutiny, that is after the sentence is upheld by this Court, the mercy petition is rejected and a challenge to the rejection is dismissed, then the prisoner is a death row prisoner?

4. It was submitted by the learned Amicus that even after the convict is sentenced to death by the Trial Court, he is entitled to be treated and dealt with like any other convicted prisoner and is therefore entitled to the opportunity to work on voluntary basis. The convict is also entitled to other facilities such as participating in educational programmes, vocational training and skill development as well as other institutional facilities available to other convicted prisoners.

5. The issue must be considered in a humanitarian and compassionate manner. That apart the law laid down by this Court in Sunil Batra v. Delhi Administration and others, (1978) 4 SCC 494 is quite clear. It has been held in paragraph 223 of the Report that a prisoner under sentence of death can only mean a prisoner whose sentence of death has become final, conclusive and indefeasible and which cannot be annulled and voided by any judicial or constitutional procedure. In other words, a prisoner can be said to be a prisoner on death row when his sentence is beyond judicial scrutiny and would be operative without any intervention from any other authority. Till then, such a prisoner cannot be said to be under a sentence of death in the context of Section 30 of the Prisons Act, 1894. That being the position, as also mentioned in paragraph 101 of the Report, a prisoner is entitled to every creature comfort and facilities such as bed and pillow, opportunity to commerce with human kind, writing material, newspapers, books, meeting with family members etc.

6. The above view has been reiterated in Sunil Batra (II) v. Delhi Administration, (1980) 3 SCC 488 in paragraph 42 of the Report and in Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 in paragraphs 10 and 13 of the Report. In paragraph 10 of the Report in Kishore Singh, it was held that there is no difference between a separate cell and solitary confinement. Therefore, a convict on death row is entitled to move within the confines of the prison like any other convict undergoing rigorous imprisonment. However, certain restrictions may be necessary for security reasons, but even then, it would be necessary to comply with natural justice provisions with an entitlement to file an appeal.

7. Paragraph 10 reads as follows:

“10. We cannot agree that either the Section or the Rules can be read in the absolutist expansionism the prison authorities would like us to read. That would virtually mean that prisoners are not persons to be dealt with at the mercy of the prison echelons. This country has no totalitarian territory even within the walled world we call prison. Articles 14, 19 and 21 operate within the prisons in the manner explained in Sunil Batra (I) [ Under Article 32 of the Constitution] , by a Constitution Bench of this Court. It is significant that the two opinion