Allowed

Trisha Chandran v. The Superintendent

Telangana HC19 Apr 2022WP/17840/2022

Case brief

AI extract

What is this about?

Petitioner filed a writ seeking direction to remove two death row prisoners from solitary confinement. The court held that since the death sentence was not final, Section 30 of the Prisons Act did not apply. The writ was allowed to ensure equal treatment and access to facilities.

What did the court decide?

Petitioners removed from solitary confinement, permitted movement within jail, communication with other prisoners, and access to all facilities available to other prisoners.

Trisha Chandran Vs The Superintendent — Constitutional and Fundamental Rights | Telangana HC (2022)

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[³²³⁰ ]

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HIGH COURT FOR THE STATE OF TELANGANA AT I{YDERABAD (Special Original Jurisdiction)

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TI.]ESDAY, THE NINETEENTH DAY OF'APRIL TWO THOUSAND AND TWENTY TWO

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PREStrNT

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THE HONOURABLE SMT. JUST'ICE I,ALITHA KAIINEGANTI

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WRIT PETITION NO: 17840 OF'2022

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Between:

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Trisha Chandran, D/o Ravi Chandran, Having an office at Project 39A, National Law University, Delhi Sector 14, Dwarka, Delhi 110 075.

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...PETITIONER

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AND

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1 . The Superintendent, Cherlapally Central Prison, Cherlapally, RR Distric! Hyderabad, Telangana 501 301

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State ofTelangana, Through Telangana State Prison Department Chanchalgud4 Hyderabad, Telangana 500024.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Direction or Order more in the nature of Writ of Mandamus directing. (i) The Respondents to imrnediaiely remove Sanjay Kumar and Marri Srinivas Reddy currently lodged at Cherlapally Central Prison from solitary confinement and permit their movement rvithin jail anC :r.,nrmunication with other prisoners. (ii) The Respondents to ensure that Sanjay Kumar and Marri Srinivas Reddy currently lodged in Cherlapally Central Prison are treated equally with tho other prisoners in Cherlapally Central Prison and are provided access to all facilities available to other prisoners including television, newspaper, work, library, and access to outdoor and common spaces.

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IA NO: I OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondent to remove Sanjay Kumar and Marri Srinivas Reddy currently lodged at Cherlapalty Central Prison from solitary confinement and permit their movement within jail and communication with other prisoners as was permitted prior to around 2 6.03.2022

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Counsel for the Petitioner: SRI. MA.NIOJ RDDDY KESHI REDDY

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Counsel for the Respondents: GP FOR HOME

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The Court made the following: ORDER

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HON'BLE SMT, JUSTICE LALITHA KANNEGANTI WRIT PETITION No. l7a40 of 2022

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ORDER:

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This Writ Petition is hled seeking a direction to the respondents to immediately remove Sanjay Kumar and Marri Srinivas Reddy currenfly lodged at Cherlapally Central Prison from solitary confmement and permit their movement within jail and communication with other prisoners. The petitioner requests the respondents to ensure that Sanjay Kumar and Marri Srinivas Reddy currently lodged in Cherlapally Centrai Prison are treated equally with the other prisoners in Cherlapally Central Prison and are provided access to all facilities available to other prisoners including television, newspaper, work, library and access to outdoor and common spaces.

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Sri P. Vivek Reddy, learncd Senior Counsel appearing on behalf of the learned counsel for the petitioner Sri K. Manoj Reddy submits hat the petitioner is an advocate working with Project 39A which is a criminal justice initiative based in National Law University, Delhi who provide pro bono legal representation before the Supreme Court and various High Courts to prisoners sentenced to death. It is stated that this

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Writ Piton is filed representing two death row prisoners lodged in Cherlapall]/ Central Jail 1) Sanjay Kumar, S/o Pavan Ram and 2) Marri Srinivas Reddy, S/o Bal Marri Reddy. It is stated that Sanjay Kumar was sentenced to death on 28.1O.2O2O by the I Additional Sessions Judge, Warangal in S.C.No. 107 of 2O2O for the offences under Sections 449, 328,380, 404, 302 IPC. and confirmation proceedings i.e. RT 2 of 2O21 and Criminal Appr:al No. 143 of 2O2l against the conviction and death sentence are pending before the High Court. It is submitted that Marri Srinivas Reddy was sentenced to death on 06.02.2020 by the Additional District and Sessions Judge, Nalgonda in S.C.No. 1O9 of 2O2O and S.C.No. 110 of 2O20 for the offences under Sections 366,376(3), 376-A,302, 201 IPC. and Section 5 of the Protection of Children from Sexual Offences Act, 2Ol2 and confirmation Proceedings RT 2 of 2O2O and RT 3 of 2O2O and Criminal Appeals No. 248 and 249 of 2O2O are pending before the High Court. [rarned Senior Counsel submits that the persons were confined in a solitary ward and they have been segregated from the other prisoners on the ground of death sentence imposed on them. Now they are lodged in individual cells which have only one window without any ventilation. They v'-:d to collect the meals and

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eat them alone inside their respective cells which in turn bar them from interacting with other prisoners. It is submitted that they are denied access to all common areas in the prison, including library and television viewing area which they had access to before. Further, they are under constant surveillance as the prison guards check on them every 2O-30 minutes making it diffrcult for them to undertake routine activities. It is submitted tiat Marri Srinivas Reddy also informed the petitioner that he is only provided a small place inside the cell and a wash room and he is not allowed to use the sanitization facilities used by the other pflsoners. His cell is isolated due to which he is unable to see or talk to any other prisoners. These restrictions and the segregation imposed on him has caused irrevocable harm to both their physical and mental health and they are not allowed to leave their cell throughout the day barring one hour in the morning and evening when they are allowed to walk outside. Earlier, they were permitted to move around within the confines of the prison during the day and also allowed to work at the garment department within Cherlapally Central Prison and now the authorities are removing all the amenities such as access to common sanitation facilities, television and newspaoers. Four other^prisoners on death row

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are also being similarly kept in isolated cells, segregated and prohibited from communicating with the rest of the prison population. 11 is submitted that pursuant to the video mulaqat, an e-maii was addressed to the Superintendent of Cherlapally Central Prison requesting to ensure that these prisoners are not kept in solitary or segregated con{inement and they have also specifically mentioned that these kind of confinement and differential trcatment from other prisoners amounts to violation of their fundamental rights under Articles 20(21 and 21 of the Constitution of India. When there was no response, they have also addressed a notice to the Secretar5r, District kgal Services Authority, Ranga Reddy vide e-mail dated O2.O4.2O22. lt is submitted that the petitioner has visited the prison on 06.O4.2022 and she was informed that they are still confined in separate and individual cells and are not allowed to communicate with other prisoners. Hence, they have come before this Cor trt.

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Learned Senior Counsel has relied on the^judgment of the Hon'ble Apex Court in Sunil Batra (I) o. Delhi Adminlstrationr, wherein the solitary confinement is defined as 'seclusion c,f the prisoner from the sight of other prisoners

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t (1978) 4 scc 494

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and irom communication with other prisoners. He also relied on the^judgment of Hon'ble Apex Court in Kishore Singh Rauinder Dea. V. State of Rajasthanz and submits that the lodgment in a separate cell is no different from solitary conhnement. It is submitted that the Honble Apex Court in In Re: Inhuman Conditions tn 1382 Prisonss held that the convicts on death row have the right to move freely within the confines of the prison like any other convict undergoing rigorous imprisonment and he is entitled to every comforts that are available to other prisoners including communication with prisoners, books reading material, etcetera. Learned Senior Counsel submits that solitary confinement is impermissible under the Prisons Act, 1894- and keeping them in the custodiai segregation / solitary confinement before exhaustion of his constitutional, legal and fundamental rights is without authority of law and amounts to torture. He submits t-llat the death sentence imposed by the trial Court is pending confirmation before this Court and the sentence is not beyond^judicial scrutiny, as such, they do not fall within the ambit of 'prisoners under the death sentence' in the^context of Section 3O(2) of the Prisons Act, 1894. He submits that there is no^judicial order

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'z^{lrsaty r scc so:} 3 (2019) 2 scc 43s

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directing them to be placed under solitary confinement as a form of punishment under Section 73 of the IPC. Hence, such confinemenr is illegal. He also submits that as^per the Andhra Pradesh Prjson Rules , 1g7g does not prescribe ^ttor^ ot solitary confinement to the prisoners sentenced to death. He submits that a^judicial order under Section 73 IPC. must be passed sentencing a person to solitary confinement. In this case, there is no order passed under Section 73 lPC. directing that the accused be kept in solitaqr conhnement. When once there is no such order, conf,rning the petitioner in a separate cell is in violation of the Prison Rules. Additionally, Rule 773 under Chapter XLIV does not prescribe any form of segregation or solitary confinement to the p'etitioner. He submits that it is not the case thzrt immediately after the conviction, they were segregated from the other accused. In fact, earlier they were permitted to move along with the other prisoners ald without any reason now they were segregated from other prisoners. This amounts to imposing additional punishment and separate punishment not authorized by law and this will amount to torture. Learned Senior Counsel submits that though both Sanjay Kumar and Marri Srinivas Reddy are death convicts, they have a right to move freely within the confines of the prison

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and also have right to have a dignified life under Article 21 ol the Constitution of India. Hence, he submits that a direction may be issued to the respondents to immediately remove both Sanjay Kumar and Marri Srinivas Reddy from solitary confinement and permit their movement within the confines and shall be permitted to communicate with other prisoners and also to treat them equally along wit1l other prisoners and provide access to the facilities available to other prisoners including television, newspapers, library.

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Learned Government Pleader for Home Sri Srikanth Reddy, on written instructions received from the Superintendent, Central Prison, Cherlapally, submits that under Section 30 of the Prisons Act, a prisoner under sentence of death shall immediately on his arrival in the prison after sentence, be searched by or by order of the jailor and all articles shall be taken from him which the^jailor deems it in-exnedient or dangerous to leave in his possession and every such prisoner shall be conlined in a cell apart from all other prisoners and shall be placed by day and by night under the charge of a guard, as such, all the prisoners who are sentenced to death are segregated from other convict prisoners and kept them in separate cells. He submits that the cells.which were allotted to

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the death sentenced are constructed with proper space area, attached batlrroom with latrine facilities and installed ceiling fan for free air with proper ventilation and also providing sufficient water facility inside the said compartment so as to enable them to meet their daily necessities without any difficulty. He submits that there is no need for common sanitization facilities. It is stated that death convict prisoners were not allowed to move around and also not allowed to work along with other convicts as per the norms defined in Chapter XLIV of TSPR, 1979. It is stated that they are following the gr.ridelines issued by the competent authorities and accordingly, as per the said guidelines, they have segregated from the other prisoners as per the norms mentioned and the re iS no solitary confinement. 5. Having heard learned counsel on either side, perused the material on record.

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The case of the petitioner is that two death convicts are in solitary confinement in a prison which is violative of the rights guaranteed to a person and also contrary to the law laid down by the Hon'ble Apex Court. The Hon'ble Apex Court has consistently held that imprisonment does not spell farewell to fundamental right although by a realistic reappraised courts will refuse to recognize the-full panoply of Part-III enjoyed by a free

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citizen. A prisoner is a human being as well as a natura-l person or a legal person. If a person gets convicted for a crime, it does not reduce him to the status of a non-person whose rights could be snatched away at the whims of the prison administration. Giving prisoners the right to fair procedure is also part of Article 21 of the Constitution of India.

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7 . A prisoner is entitled to all the fundamental rights unless curtailed by the Constitution. In this case, it is submitted by the learned Government Pleader that as per the norms defined in Chapter XLIV of TSPR 1979, they shall segregate these prisoners from other prisoners as per the norms mentioned and there is no solitary conlinement. It is also submitted that when condernned prisoners are allowed out of their cells for meals, bathing, latrine or exercise, not more than one prisoner shali be allowed out at the same time. It is submitted that under Section 30 of the Prisoners Act, a prisoner under sentence of death is treated in the manner specified whereby he shall be confined in a cell apart from all other prisoners and shall be placed by day and night under the charge of a guard and except following the said rules, the prison authorities are not violating any of the rights of the prisoners and they are conscious of the same.

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'-/

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State of Andhra Pradesh u. Challa Ramakrishna Reddga B. A person can be said to be under sentence of death oniy when the death sentence is beyond judicial scrutiny and shall be operative without any intervention from any authority, tili then the person who is awarded jail punishment cannot be said to be a person under the sentence of death in the context of Section 30(2) of the Prisoners Act. It is also consistently held t1lat keeping a convict in the custodial segregation before extension of its constitutional, legal and fundamental rights is without any authority of law and amounts to torture. It is appropriate to look at the relevant paragraphs in the said judgment.

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197-A. (1) I uphold the vires of Section 3O and Section 56 of the Prisons Act, as humanistically read by interpretation. These and other provisions, bring somewhat out of tune with current penological values and mindless to human-rights moorings, will, I hope, be revised by fresh legislation. It is a pity that Prison Manuals are mostiy callous colonial compilations and even their copies are beyond^prisoners' ken. Punishments, in civilized societies, must not degrade human dignity or wound flesh and spirit. The cardinal sentencing goal is correctional

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4 (2ooo) 5 scc 712

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changing the consciousness of the criminal to ensure social defence. Where prison treatment abandons the reformatory purpose and practises dehumanising techniques it is wasteful, counterproductive and irrational, hovering on the hostile brink of unreasonableness (Article 19). Nor can torture tactics^jump the constitutional gauntlet by wearing a "preventive" purpose. Naturally, inhumanity, masked as security, is outlawed beyond backdoor entry, because what is banned is brutality, be its necessity punitive or prophylactic.

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(2) I hold that solitary confinement, even if mollified and modified marginally, is not sdnctioned by Section 30 for prisoners^uunder sentence of death". But it is legal under that section to separate such sentences from the rest of the prison community during hours when prisoners are generally locked in. I also uphold the special watch, day and night, of such sentences by guards. Infraction of privacy may be inevitable. But guards must concede minimum human privacy in practice.

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(3) By necessary implication, prisoners "under sentence of death" shall not be denied any of the community amenities, including games, newspapers, books, moving around and meeting prisoners and visitors, subject to reasonable regulation of prison management. Be it noted that Section 30 is no

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substitute for sentence of imprisonment and mereiy prescribes the manner of organising safe jail custody authorized by Section 366 of the CrPC.

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(4) More importantly, if the prisoner desires loneliness for reflection and remorse, for prayers and making peace with his maker, or opportunities for meeting family or friends, such facilities shall be liberally granted, having regard to the stressful speil of terrestrial farewell his soul may be passing through - the compassion society owes to him whose life it takes.

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(5) The cmcial holding under Section 30(2) is that a person is not "under sentence of death", even if the sessions court has sentenced him to death subjoct to confrrmation by the High Court. He is not "under sentence of death" even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence, Section 3O does not cover him so long as his petition for mercy to the Governor ald/or to the President permitted by the Constitution, Code and Prison Rules, has not been disposed. Ofcourse, once rejected by the Governor and the President, and on further application there is no stay of execution by the authorities, he is "under sentence of death",

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even if he goes on making further mercy petitions. During that interregnum he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be "under a sentence of death" means "to be under a finally executable death sentence".

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(6) I do not Rule out further restraint on such a condemned prisoner if clear and present danger of violence or likely violation of custody is, for good reasons, made out, with due regard to the Rules of fairplay implied in natural justice. Minimal hearing shall be accorded to the affected if he is subjected to further severit5r.

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2O2. The roots of our Constitution lie deep in the finer spiritual sources of social justice. beyond the melting pot of bad politicking, feudal crudities and sublimated sadism, sustaining itself by profound faith in Man and his latent divinity and the conlidence that^oyou can accomplish by kindness what you cannot do by force" I Pubillus Syrus] and so it is that the Prisons Act provisions and the Jail Manual itself must be revised to reflect this deeper meaning in the behavioural norms, correctional attitudes and humane orientation for the prison staff and prisoners alike. We cannot become misanthropes and abandon values, scared by the off chance or some stray

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desperate character. Then amputation of limbs of unruly suspects may be surer security measure and corporal punishment may have a lield day after a long holiday. The essence of mg opinion in both these cases is the infusion oi the higher consciousness of the Constitution into the stones of law which make the prison houses.

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The winds of change must blow into our careers and selfexpression and self-respect and self-realization creatively substituted for the dehumanizing remedies and "wild life" techniques still current in the^jail arrnory. A few prison villains -^{they exist} -^{shall not make mart5rrsof the humanemany;} ald even from these few, trust slowly begets trust. Saruod aga and antgodaga l:.ave criminological

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dimensions which our social^justice awcLreness must apprehend and actualize. I^justify this observation by reference to the noble but inchoate experiment (or unnoticed epic) whereby Shri Jai Prakash Narain redemptively brought murderously dangerous dacoits of Chambal Valley into prison to turn a responsible page in their life in and out of^jail. The rehabilitative follow-up was, perhaps, a flop.

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Sunit Bo{a^(I) u. Delhi Administrations

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' 11928;^{+ scc+s+}

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The restriction of environmental stimulation and social isolation associated with conlinement in solitary are strikingly toxic to mental functioning, producing a stuporous condition associated with perceptual and cognitive impairment and affective disturbances. In more severe cases, inmates so confined have developed florid delirium-a confusionai psychosis with intense agitation, fearfulness, and disorganization. But even those inmate who are more psychologically resilient inevitably suffer severe psychological pain as a result of such conlinement, especially when the conlinement is prolonged, and especially when the individuai experiences this conlinement as being the product of an arbitrary exercise of power and intimidation. Moreover, the harm caused by such confinement may result in prolonged or permanent psychiatric disability, including impairments which may seriously reduce the inmate's capacity to reintegrate into the broader community upon release from prison.

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Many of the prisoners who are housed in long term solitary confinement are undoubtedly a danger to the communit5r and a danger to the corrections officers charged with their custody. But for many they are a danger not because

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they are coldly ruthless, but because they are volatile, impulseridden, and internally disorganized.

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As noted earlier in this statement, modern societies made a fundamental moral division between socially deviant behavior that was seen as a product of evil intent, and such behavior thal was seen as a product of illness. Yet this bifurcation has never been as simple as might at hrst^glance appear. Socially deviant behavior can in fact be described along a spectrLrm of intent. At one end are those whose behavior is entirely "instrumental"-ruthless, carefully planned, and rational; at the other are individuals whose socially deviant behaviour is the product of - unchecked emotional impulse, internal chaos, and often of psychiatric or neurological illness.

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It is a great irony that as one passes through the levels of incarceration-from the minimum to the moderate to the maximum securit5r institutions, and then to the solitary confinement section of these institutions- one does not pass deeper and deeper into a subpopulation of the most ruthlessly calculating criminals. Instead, ironically and tragically, one comes full circle back to those who are emotionally fragile and, often, severely mentally i11. The laws and practices that have

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established and perpetuated this tragedy deepiy offend any sense of common human decency."

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State of Haryana u. Arun

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It State of Maharashtra u. Prabhakar Panduranga Sangzgii6, the Honble Apex Court has held that every prisoner retains all such rights that are enjoyed by free citizen except the one that is necessar5r as an incident of conlinement.

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I 1. In this case, Sanjay Kumar and Marri Srinivas Reddy were convicted and they preferred an Appeal before this Court and their Appeal is still pending consideration. In view of the same, as per the law laid down by the Hon'ble Apex Court in Sunil Batra's, which was subsequently followed in several other cases, it cannot be said that the death convicts have to be kept in a solitary conlinement. Section 30 of the Prisoners Act, they cannot be applied to Sanjay Kumar and Marri Srinivas Reddy as their legal rights are still not exhausted. The right to live with human dignity is a right guaranteed under the Constitution of India to all its citizens and it will also apply to the prisoners. Just because they are prisoners, they cannot be put to any kind of inhumane treatment. If the behaviour of the convict is such which led the respondents to keep him in a solitary confinement

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6 AIR 1966 SC 424

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by way of a punishment, it stands on a different footiong but in this case, only reason mentioned is that under Section 30, as they are death convicts, they are being given this kind of a treatment. The prisoners should be provided with such an environment ',vhereby they will evolve as a better citizen. This kind of treatment by keeping them in solitary confinement will have a very bad effect on the psychological aspect which deprives the prisoner all his personal rights. Hence, the action of the respondents in confining the death convicts in separate cells is most unwarranted and the respondents shall remove Sanjay Kumar and Marri Srinivas Reddy from solitary confinement and sha-ll permit their movement within jail by treating them t:qually with other prisoners in the prison. They shall be provided access to all facilities like the other prisoners. 12. The Writ Petition is accordingly, allowed. There shall be no order as to costs.

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Consequently, the miscellaneous Applications, if any shail stand closed.

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One Fair Copy to Hon'ble Smt.lustice: Lalithn Kanneganti (For her Lordships kind perLLsal)

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SD/..T,JAYASREE ASSISTANT REGIPTRAR //TRtrI coPYl/ ,l SECTION OFFICER

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'Io,

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l.^-lhe Superintendent, Cherlapally Central Prison, Cherlapalty, RR District, Hyderabad. Tclangana 501 301

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1. The Telangana State Prison Department, Statc ofTelangana, Chanchalguda, Hyderabad, Telangana 500024.

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1. The Under Secretary, Union ol India. Ministry of Extemal Affairs, New Delhi 4. The Secretary, Telangana Advocates Bal Association, High Court lor the State of I'elangana, Hyderabad

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1. I I L.R. Copies 6. One CC to Sri Manoj Reddy Keshi Reddy Advocate [OPUC] 7. Two CC to GP for Home, High Courr fol the state of Telangana at Hyderabad. [OUT] 8.^'f wo CD copies

HI(]H COTJRT

LK, J

DATIiD: 1910412022

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ORDIIR

WP.No.l7840 of 2022