Khowaj Ali Barbhuiya and Another vs State of Assam

K. Lahiri, J.—The prisoners, who are locked up in jail incarcerated and shut up against their will have certain basic human rights which they can assert under the Constitution and the law, ruled their Lordships of the Supreme Court in Sunil Batra Vs. Delhi Administration and Others etc., ; Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, ; Nimeon Sangma and Others Vs. Home Secretary, Government of Meghalaya and Others, and other decisions.

The State Governments are bound to obey the rule of law and uphold the tryst with the Constitution by making appropriate laws transforming the archaic and primitive regulations and substantially comply with the Constitutional mandates. It is unfortunate that the message and, the commands of the Supreme Court are yet to be obeyed by the States in respect of the rights of the incarcerated persons. We are also told that the Stares and Union Territories within the jurisdiction of this Court have not taken the message or the command of the Supreme Court nor have they implement the do''s and don''ts prescribed by their Lordships in respect of the rights of the prisoners under the Constitution and the law. A common striking feature of the decisions alluded to is that the orders of the Supreme Court travelled beyond the immediate parties. The judicial mind was tormented to note that innumerable prisoners in our vast country belonging to the lower, illiterate bracket were suffering "deprivation of liberty" by unreasonable, arbitrary and unfair procedure inside the stone walls and behind the iron bars, by the jail authorities in complete disregard of the norms of justice, guaranteed by Article 21 buttressed by Article 14 and it impelled the Supreme Court to declare the laws for the entire prison population.

Two prisoners, sentenced to death, the confirmation of which is pending before this Court, have complained that they have been kept "in condemned cell in solitary confinement". They have preferred appeals against their conviction and sentence. They ask for a direction to the jail authorities that they could not be meted out undignified, crass and inhuman treatment.

The prisoners sentenced to death are human beings and no person or authority can treat those human beings as non-human. We feel that nothing should be done to those prisoners which offends human dignity of the individual, vide Preamble to the Constitution of India. Time out of number the Supreme Court of India has ruled that the treatment of human being which offends human dignity, imposes torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14 of the Constitution. Article 21 forbids ''deprivation of liberty'' except in accordance with ''procedure established by law'' and curtailment of the limited personal liberty of the prisoner confined in penitentiary or jail to such an extent as to be a negation of it, would constitute deprivation of the guaranteed constitutional rights. We are concerned with the question of confining the prisoners ''in solitary confinement'', or, condemned cell''. The limit and extent of solitary confinement that can be imposed under the court order is prescribed under Sections 73 and 74 of the Indian Penal Code. It is said that the court may render such an order for a limited period so that feeling of loneliness may produce wholesome influence and reform the criminals. The provisions of solitary confinement in Sections 73 and 74 may however cause mental derangment. In fitness of things in England the provisions for solitary confinement have been done away with. It is for the legislature to consider whether the provisions should still continue in India or need refinement or abrogation.

Section 30(2) of the Prisons Act, 1894 merely provides for confinement of a prisoner "under sentence of death" in a cell apart from other prisoners and he is to be placed by day and night under the charge of a guard. Such confinement can neither be cellular confinement nor separate confinement and, in any event, it cannot be solitary confinement. The provision does not empower the jail authorities to confine a prisoner ''under sentence of death'' in a cell apart from all other prisoners, to impose solitary confinement on him.

The Petitioners are not "prisoners under sentence of death" in the context of Sub-section (2) of Section 30 of the Prisons Act. The expressions 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. Till that stage is reached the Person who is awarded capital punishment cannot be said to be "a prisoner under sentence of death" in the context of Section 30(2). The sentence of death imposed upon the convicts is inexecutable until "confirmed by the High Court". The sentence of death does not come into existence, In view of the provisions of Section 366(1) of the Code of Criminal Procedure, even though the Sessions Court might have pronounced the sentence The pendency of the appeal against the sentence of death inhibits the execution of the sentence. Even if the High Court confirms the sentence of death it shall not work if self out until the Supreme Court has pronounced its verdict, vide Section 415 of the Code of Criminal Procedure. When a sentence of death is confirmed or passed by the High Court and the High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court for grant of special leave to appeal under Article 136 of the Constitution, the High Court is bound to order that the execution of the sentence be postponed for such a period as it considers sufficient to enable a prisoner to present such petition. Until that stage is reached a convict cannot be said to be "under sentence of death". Further, the provisions of Article 72 and 161 of the Constitution provide for commutation of death sentence, read with the relevant provisions of the Code of Criminal Procedure and the Rules framed under the Prisons Act. If a convict submits a petition within the period of limitation to the State Governor or the President of India, during the pendency of the sentence of death does not come Into existence, in view or the provisions of Section 366(1) of the Code of Criminal Procedure, even though the Sessions Court might have ronounced the sentence. The pendency of the appeal against the sentence of death inhibits the execution of the sentence. Even if the High Court confirms the sentence of death it shall not work itself out until the Supreme Court has pronounced its verdict, vide Section 415 of the Code of Criminal Procedure. When a sentence of death it confirmed or passed by the High Court and the High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court for grant of special leave to appeal under Article 136 of the Constitution, the High Court is bound to order that the execution of the sentence be postponed for such a period as it considers sufficient to enable a prisoner to present such petition. Until that Stage is reached a convict cannot be said to be "under sentence of death", Further, the provisious of Articles 72 and 161 of the Constitution provide for commutation of death sentence, read with the relevant provisions of the Code of Criminal Procedure and the Rules framed under the Prisons Act. If a convict submits a petition "within the period of limitation to the State Governor or the President of India, during the pendency of the petition for mercy, the death sentence cannot be executed. Thus, until rejection of the clemency motion by the high dignitaries it is not possible to predicate that there is a self executory death sentence. It is, therefore, seen that the convict falls under the category "prisoner under sentence of death", contemplated u/s 30 of the Prisons Act only when the clemency application by the prisoners stands rejected, and thereafter Section 30(2) is attracted. Any subsequent application for mercy does not take him away from the category of ''prisoner under the sentence of death'' unless there is a specific order by the competent authority staying the execution of the death sentence. Prison justice-State Governments bound to obey the rule of law and the commands of the Supreme Court in respect of the rights of the incarcerated persons-States and Union Territories should faithfully follow the law laid down by the Supreme Court and issue necessary instructions or orders so that the Constitutional rights of the prisoners in jail are not denied by the jail authorities on the plea or pretext of ignorance of law. (paras 1, 2 and 7) petition for mercy, the death sentence can not be executed. Thus, until rejection of the clemency motion by the high dignitaries it is not possible to predicate that there is a self executory death sentence. It is, therefore, seen that the convict falls under the category of "prisoner under sentence of death", contemplated u/s 30 of the Prisons Act only when the clemency application by the prisoner stands rejected, and, thereafter Section 30(2) is attracted. Any subsequent application for mercy does not take him away from the category of ''prisoner under the sentence of death'' unless there is a specific order by the competent authority staying the execution of the death sentence. We cull these from Shaikh Abdul Azees Vs. State of Karnataka, ; Dilip Kumar Sharma and Others Vs. State of Madhya Pradesh, Sunil Batra (supra) and Hussainara Khatun cluster of cases (supra).

In the case in band the accused Petitioners are not "prisoners under sentence of death" and as such, they cannot be confined in the condemned cell or solitary confinement. We therefore direct the State of Assam and the Superintendent of District Jail, Cachar, Silchar that the Petitioners should not be kept in solitary confinement or the condemned cell and should be granted their rights ensured by the Supreme Court. We are also of the opinion that the State Government should hand out necessary instructions to all, including the jail authorities to meticulously follow the law laid down by the Supreme Court set out above, to uphold the Constitution and the human rights of the prisoners. We are also of the view that we should draw the attention of the States and Union Territories within the jurisdiction of the court to faithfully follow the law laid down by the Supreme Court and issue necessary instructions or orders so that the Constitutional rights of the prisoners in jail are notdenied by the jail authorities on the plea or pretext of ignorance of law.

In the result, the petition is accepted and the case is disposed of. A copy of this order may be furnished to Mr. Y.K. Phukan, learned Junior Government Advocate, Assam as prayed for. Send also copies of the order to the Chief Secretaries of the States and union Territories within the jurisdiction of this Court.