Explained: Where the Indian legal system stands on solitary confinement in prison
The Indian judiciary has taken a nuanced approach to the issue of solitary confinement, recognising both its potential harms and potential utility.
Recently, in A. Kamala v. State of Tamil Nadu & Ors., upon enquiry by the Supreme Court in the habeas corpus petition filed by the aggrieved’s mother, the state government told the court that YouTuber Savukku Shankar was not kept in solitary confinement.
In the Indian criminal justice system, where the Constitution of India guarantees a right to a speedy and fair trial, the concept of solitary confinement has long been a controversial practice with various courts weighing on its legality and constitutionality. Despite India's claim to be the world's largest democracy, the fate of under-trial prisoners is a cause for concern, as prisons are often treated as "social dustbins" where the rights of the incarcerated are overlooked.
Section 73 and 74 of the Indian Penal Code, 1860, provide for the punishment of solitary confinement as a form of punishment, wherein, Section 73 allows for the imposition of solitary confinement for a maximum of one month at a time, and Section 74 allows for the imposition of solitary confinement for a maximum of three years. Further, as per Section 29 of the Prisons Act, 1894 no prison cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with the prison’s officers and every prisoner confined in a cell for more than 24 hours shall be visited by a medical officer at least once a day.
As per Section 31 of the Bhartiya Nyaya Sanhita, 2023, solitary confinement shall only be imposed as a disciplinary measure of last resort, for a maximum of 14 days, and if recommended by a medical officer. A periodic review of the need for solitary confinement shall be undertaken. No prisoner shall be held in solitary confinement for more than 14 days at a time or 60 days in a calendar year.
The Bureau of Police Research and Development, an agency of the home ministry recently released the Model Prison Manual 2023. The Manual provides detailed guidelines on the use of solitary confinement, emphasising that it should be used only as a last resort and with proper safeguards in place.
Article 7 of the International Covenant on Civil and Political Rights prohibits torture and cruel, inhuman or degrading treatment or punishment. Article 10 of the same Covenant requires that persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. As per the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, solitary confinement should only be used in exceptional circumstances as a last resort, for as short a time as possible and subject to independent review. torture and cruel, inhuman or degrading treatment or punishment.
These international human rights standards have been incorporated into the domestic legal framework through the Protection of Human Rights Act, 1993 which empowers the National Human Rights Commission to study treaties and other international instruments on human rights and make recommendations for their effective implementation.
Judicial Approach: Balancing Rights and Security
The Indian judiciary has taken a nuanced approach to the issue of solitary confinement, recognising both its potential harms and potential utility as a tool to maintain order and discipline within prisons.
The Supreme Court, for instance, in the landmark case of Sunil Batra v. Delhi Administration has held that, solitary confinement should not be used as a routine punishment and that it should be imposed only in exceptional circumstances, such as when an inmate poses a threat to the safety and security of the prison.
In Triveniben v. State of Gujarat, the Supreme Court observed that 'keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra (supra) and would amount to inflicting “additional and separate” punishment not authorised by law. It is completely unfortunate that despite enduring pronouncement on the judicial side, the actual implementation of the provisions is far from reality.
In Kishor Singh Ravinder Dev Etc vs State Of Rajasthan, it was observed ‘…no more of solitary confinement disguise ed as "keeping in separate cell" and imposition of fetters will take place, save in the rarest of rare cases and with strict adherence to the procedural safeguards contained in the decisions of this Court relating to the punishment of prisoners.”
At the same time, various high courts have upheld the use of solitary confinement in certain circumstances, such as when an inmate poses a threat to the safety and security of the prison. In the case of Muktesh Kumar v. State of Uttar Pradesh, the Allahabad High Court held that solitary confinement can be used as a tool to maintain order and discipline within prisons, provided that it is used in a reasonable and proportionate manner.
The courts have also recognised the potentially harmful effects of solitary confinement, particularly on the mental health of inmates. In the case of Farooq Ahmad Khan v. Union of India, the Jammu and Kashmir High Court held that solitary confinement can have severe psychological and physical consequences for inmates and that it should be used only as a last resort.
In addition, the Supreme Court has held that the right to health is an integral part of the right to life under Article 21 of the Constitution and that the state has a constitutional obligation to ensure the health and well-being of prisoners.
In Ajay Pal v. Union of India and Anr., the question of whether the delay in execution of a death sentence can be a sufficient ground or reason for substituting such sentence by life imprisonment has engaged the attention of this Court over a period of time. The period of solitary confinement in Ajay Pal’s case violated the law laid down in Sunil Batra’s case as the period was from 2007 until 2014.
Recently, in Dharam Pal v. Union of India, it was observed that the procedure prescribed by law, which deprives a person of his life and liberty must be just, fair and reasonable. Here, a death convict spent more than 25 years in prison, out of which 18 years were spent in solitary confinement in various jails as there was an unexplained delay of more than 13 years in deciding the mercy petition. In this line, although the petitioners were sentenced to death based on the procedure established by law, the inexplicable delay on account of an executive is inexcusable.
Conclusion and a Way Ahead
While the existing legal framework and judicial precedents provide some guidance on the use of solitary confinement, there is still a need for clearer and more comprehensive guidelines to ensure that the practice is used only as a last resort and with proper safeguards in place as the situation is quite different in practice. Some steps that can be undertaken to ensure the proper implementation of the legal framework include:
- Periodic judicial inspections of prisons to monitor the use of solitary confinement and ensure compliance with legal safeguards.
- Establishing an independent oversight mechanism to investigate complaints and allegations of the misuse of solitary confinement.
- Providing comprehensive training and guidelines to prison staff on the appropriate use of solitary confinement, focusing on the potential harms and the need to use it only as a last resort.
The recently released prison manual, which sets stricter limits on the use of solitary confinement, is a step in the right direction. Additionally, the monitoring and oversight of the use of solitary confinement, both by the courts and by independent human rights bodies, could help ensure that it is used in a manner that is consistent with international human rights standards and the constitutional right to health and dignity.
Further, the Indian government perhaps should consider ratifying the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which would require the establishment of a national preventive mechanism to monitor the treatment of persons deprived of their liberty, including the use of solitary confinement.
Sanya Singh is a practising lawyer based out in New Delhi. The views expressed are personal
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