With its concern for human rights of prisoners, criminal justice system has kept punishment of solitary confinement beyond the powers of the prison authorities.
Solitary confinement is a deterrent kind of punishment in which the prisoner is prohibited from communicating with anybody or the outside world, with the exception of prison guards. The detainees are held in isolation, with no contact with other individuals, and are often confined to cramped, windowless cells.2 The Prisons Act of 18943 (hereafter “the Act”) prevents inmates from being subjected to aggravated types of confinement. The Act focuses more on the efficient operation of prisons than on the reformation and rehabilitation of prisoners. But prisoners should not be left alone in jail to languish and suffer like corpses; they should be treated with the respect as a human being. One of these extreme kinds of confinement is solitary confinement. In accordance with Sections 734 and 745 of the Penal Code, it is a kind of rigorous imprisonment that may be imposed only by court order.6
Section 73 provides that the Court may order that the offender be held in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not to exceed three months in total, according to the following scale:
for a period not to exceed one month if the term of imprisonment does not exceed six months;
for a period not to exceed two months if the term of imprisonment does not exceed one year; and
for a period not to exceed three months if the term of imprisonment exceeds one year.
Section 74 of the Penal Code prohibits solitary imprisonment to seven days each month for sentences exceeding three months. Thus, solitary confinement must be enforced intermittently; a sentence imposing solitary confinement for the whole length of imprisonment is unlawful, but it may be imposed for less than fourteen days.
The question of legality
In accordance with Section 287 of the Act, convicted offenders are permitted to be confined in either group cells or individual cells. According to Section 30(2)8 of the Act, inmates facing the death penalty must be held in a cell separate from all other prisoners and put under the supervision of a guard day and night. This is a highly distinct kind of segregation used to preserve discipline. Therefore, the Prisons Act does not provide isolation for disciplinary purposes, although it does permit the separation of prisoners.
In Kishore Singh v. State of Rajasthan,9 it was ruled that the imposition of a term of solitary imprisonment, although permissible, should be used by a criminal court extremely seldom. It should only be provided in the rarest circumstances of unprecedented depravity or brutality. According to this case, it must be used sparingly and only in extraordinary circumstances to keep convicts in their cells.
In Ranbir Singh Sehgal v. State of Punjab,10 the Court ruled that there must be a reasonable relationship between the object of the statute and the provision in question, which was to preserve discipline among prison inmates. The Court said that this authority is delegated to the jail's senior officer, who is normally required to act rationally, objectively, and impartially. “Only a court may impose the penalty of solitary confinement, and due to its dangerous possibilities, strict limitations are put upon it.”
In State of Uttarakhand v. Mehtab,11 the constitutionality of solitary confinement was the subject of controversy. Advocates for its abolition argue that it is the most inhumane, brutal, and agonising form of punishment because it breaches fundamental human rights. In light of the rising trend toward its elimination, the Uttaranchal High Court ruled that it is unconstitutional to detain an offender in solitary confinement before the expiration of his constitutional, legal, and basic rights. According to the Court, solitary confinement is not a component of the sentence, but rather an extra sanction imposed by the prison administration. As soon as the death sentence is confirmed, the prisoner is placed in solitary confinement, preventing him from having any interaction with his fellow inmates. It was determined that it is unlawful to put a criminal in solitary confinement until his constitutional, legal, and basic rights had been exhausted. In addition, the Court determined that the prisoner may be held in solitary confinement for the shortest period feasible. The Court argued that such treatment is barbarous, cruel, causes extreme pain and suffering, and breaches Articles 20(2)12 and 2113 of the Indian Constitution. Consequently, the High Court has outlawed the practice of placing death row inmates in solitary confinement after the sentence has been handed down.
Numerous groups and people have sharply criticised the practice of holding inmates in solitary confinement. The “Nelson Mandela Rules”14 of the United Nations set guidelines for the treatment of prisoners worldwide. These Rules ban the use of indefinite or extended solitary confinement of more than 15 days and recommend that prisons and jails use it only as a last resort.
Article 5 of the Universal Declaration of Human Rights (UDHR)15 prohibits solitary confinement, stating, “No one should be subjected to torture or to cruel, inhumane, or degrading treatment or punishment.” If it is deemed that solitary confinement constitutes torture or cruel, barbaric, or degrading treatment or punishment, then the nation that practices solitary confinement is in violation of the UDHR.16
According to scientific study, solitary confinement fundamentally affects a person's brain, generating severe and long-lasting psychological health concerns and growing aberrant and violent behaviours.17 Solitary confinement is detrimental to both the individual and the surrounding community, as it encourages recidivism.
In India, a Bill to alter the Prisons Act of 1894 is pending. The punitive authority to put convicts in solitary confinement must be addressed as an inappropriate jail power, and the Jail Manual and IPC must be amended accordingly.
Different kinds of confinement prescribed under the Prisons Act
29. Solitary confinement.—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 at least once a day by the Medical Officer or Medical Subordinate.
Pertinent Judicial Interpretation: In Sunil Batra (2) v. Delhi Admn.,19 the Supreme Court ruled that solitary confinement and other forms of hard labour cannot be imposed without the Sessions Judge's approval. In this decision, the Supreme Court reviewed the constitutionality of solitary imprisonment.
2. Separate confinement.—Separate confinement is defined as confinement with or without labour that excludes a prisoner from contact with, but not sight of, other inmates, and permits him to exercise for at least one hour per day and eat with at least one other prisoner.
Separate confinement is a kind of incarceration prescribed by sub-section (8) of Section 4620 for prisoners convicted of penal offences and states that—
“separate confinement for any period not exceeding (three) months”.
3. Cellular confinement.—Cellular confinement refers to a kind of imprisonment with or without labour that completely isolates a prisoner from contact with other inmates, but not their sight.
Section 46 sub-section (10)21 specifies cellular confinement as a form of imprisonment for prison offences and states that—
Cellular confinement for any period not exceeding fourteen days:
Provided that after each period of cellular confinement an interval of not less duration than such period must elapse before the prisoner is again sentenced to cellular or solitary confinement.
56. Confinement in irons.—Whenever the Superintendent considers it necessary (with reference either to the state of the prison or the character of the prisoners) for the safe custody of any prisoners that they should be confined in irons, he may, subject to such rules and instructions as may be laid down by the Inspector General with the sanction of the State Government, so confine them.
5. Confinement of prisoners under sentence of transportation in irons.—Section 57 of the Prisons Act, 189423 is concerned with detainment of prisoners under sentence of transportation in irons and it reads as follows:
57. Confinement of prisoners under sentence of transportation in irons.—(1) Prisoners under sentence of transportation may, subject to any rules made under Section 5924, be confined in fetters for the first three months after admission to prison.
(2) Should the Superintendent consider it necessary, either for the safe custody of the prisoner himself or for any other reason, that fetters should be retained on any such prisoner for more than three months, he shall apply to the Inspector General for sanction to their retention for the period for which he considers their retention necessary, and the Inspector General may sanction such retention accordingly.
From the case of State of Maharashtra v. Saeed Sohail Sheikh,25 two major takeaways can be drawn:
1. Several types of confinement as prescribed in the Prisons Act can only be imposed up to a certain limit, and this limit is set by the fundamental rights guaranteed under Articles 1426, 1927, and 21 of the Constitution of India, which are available even to prisoners.
2. Solitary confinement is a punishment that may only be imposed by a court.” A watered-down punishment by way of separate confinement or cellular confinement can be sanctioned for perpetrating a prison offence. The prison administration alone cannot place a prisoner in solitary confinement.
The Act forbids cruel and unusual imprisonment of convicts. Although the prison officials have a great deal of discretion, they may readily abuse Section 28 of the Act. This is not a penalty, since Section 28 just grants the Superintendent of Police a facility or power. However, Section 46 outlines particular penalties. It is the discretion of the jail administration and is not subject to limitation under Section 28. Solitary confinement is not cost-effective, does not provide the desired results, and may worsen the problems it is designed to address.28 Comparing building and operating costs, solitary confinement facilities are much more expensive than other forms of prison accommodation. Due to the impact isolation has on individuals, it may also cause them to become more aggressive and erratic. It defeats the intent and purpose of punishment.29 It is fully skewed towards deterrent and punishment, with little room for reformation or rehabilitation. The punishment should be teachable and should not cause mental and physical weakness or stress in the captives.
Since as a result, the Uttaranchal High Court in State of Uttarakhand v. Mehtab30 deserves unending praise for issuing a progressive ruling, as life is not only animal existence, regardless of whether one is a criminal or a regular person.
* BA LLB (Criminal Law Hons.), Class of 2023, National Law University Jodhpur. Author can be reached at <email@example.com>.
2. Available at <https://www.humanrightsinitiative.org/publications/prisons/Jail%20Mail%20- %20Abolish%20Solitary%20Confinement%20(31.10.15)%20(English).pdf>, (last seen on 21-5-2022).
6. Sharma, B.R., Constitutional Law and Judicial Activism (1990), pp. 30 and 31.
14. United Nations Standard Minimum Rules for the Treatment of Prisoners, General Assembly Resolution 70/175, Annex, adopted on 17-12-2015, <https://www.unodc.org/documents/justice-and-prison-reform/GA-RESOLUTION/E_ebook.pdf>.
16. Chowdhury, Nitai Roy, Indian Prison Laws and Correction of Prisoners, 2002, p. 2.s
17. Coppola F., “The Brain in Solitude: An (other) Eighth Amendment Challenge to Solitary Confinement”, Journal of Law and the Biosciences, Vol. 7, Issue 1, Jan-June 2020, lsz017, <https://doi.org/10.1093/jlb/lsz017> (last seen on 22-5-2022).
28. Kenneth M. Cole III, “Constitutional Status of Solitary Confinement”, 57 Cornell L. Rev. 476 (1972), available at <http://scholarship.law.cornell.edu/clr/vol57/iss3>.
29. Kenneth M. Cole III, “Constitutional Status of Solitary Confinement”, 57 Cornell L. Rev. 476 (1972), available at <http://scholarship.law.cornell.edu/clr/vol57/iss3>.