2018 Supreme(P&H) 2698

IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
Hon’ble Mr. Justice Rajiv Sharma
Hon’ble Mr. Justice Gurvinder Singh Gill
Murder Reference No.03 of 2017
State of Haryana
v.
Arun & Ors
{Decided on 06/12/2018}

Solitary Confinement – Right to Life – Practice adopted by the jail authorities in the State of Haryana, of segregating a convict sentenced to death, immediately after the pronouncement of sentence by the trial Court and after confirmation of sentence by the High Court, abolished being unconstitutional
Murder – Life Sentence – Minor girl aged 9 years was kidnapped, raped and killed by throttling – Not a rarest of rare case – Death Sentence commuted into life sentence

Headnote:(A) Punjab Jail Manual, Para 758 – Solitary Confinement – Right to Life – Practice adopted by the jail authorities in the State of Haryana, of segregating a convict sentenced to death, immediately after the pronouncement of sentence by the trial Court and after confirmation of sentence by the High Court, abolished 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 process – The period to keep a convict sentenced to death in segregation/isolation should be for the shortest possible time i.e. 2-3 days – Indian Penal Code, 1860, S.73 – Constitution of India, Art.21. (Para 93)

       (B) Constitution of India, Art.21 – Solitary Confinement – Right to Life – Practice of solitary confinement to death row convict abolished – Held;

       (i) 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. (Para 92)

       (ii) 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. (Para 90)

       (iii) 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 the Punjab Jail Manual are anarchic, cruel and insenstive – Punjab Jail Manual, Para 758. (Para 89)

       According to Paragraph 368, cited hereinabove, 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 only permitted half an hour in the morning and in evening to occupy the verandah in front of his cell. During this period, the convict has to remain handcuffed. It is thus, evident that the convict under sentence to death is to be kept in a segregated cell. He is permitted only half an hour to come out of his cell to occupy the verandah. He is put under the gaze of light. He is to be kept always under the observation of guards. As discussed hereinabove, keeping a convict in an isolated cell has psychiatric impact on him. It causes him heart palpitations (awareness of strong and/or rapid heartbeat while at rest), diaphoresis (sudden excessive sweating), insomnia, back and other joint pains, deterioration of eyesight, poor appetite, weight loss and sometimes diarrhoea, lethargy, weakness, tremulousness (shaking), feeling cold, aggravation of preexisting medical problems, anxiety, ranging from feelings of tension to full blown panic attacks, persistent low level of stress, irritability or anxiousness, fear of impending 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, depersonalisation/ 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. The United Nations Standard Minimum Rules for the Treatment of Prisoners laid down that the solitary confinement shall be used only in exceptional cases as a last resort. It shall not be imposed by virtue of a prisoner’s sentence. The solitary confinement means the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days. (Paras 86,87,and 88)

       (C) Indian Penal Code, 1860, S.302, S.366 and S.376 – Murder – Life Sentence – Minor girl aged 9 years was kidnapped, raped and killed by throttling – Held; though death is violent but it cannot be termed that as gruesome murder that has pricked collective conscious of the society – Not a rarest of rare case – Death Sentence commuted into life sentence – Appellants to mandatorily serve out minimum 20 years without claiming remission. (Para 48)