Sushma Manchanda, Ms. Suhasini Sen, Ms. Aarti Sharma, G. S. Makker, B v. Balram Das

A. N. S. Nadkarni, ASG, Ms. Aparna Bhat, Ms. Shivangi Singh, Yash V., R. M. Bajaj, Ms. Binu Tamta, R. Bala, Ms. Sushma Manchanda, Ms. Suhasini Sen, Ms. Aarti Sharma, G. S. Makker, B. V. Balram Das, Raghavendra Mohan Bajaj, Guntur Prabhakar, Ms. Prerna Singh, Anil Shrivastav, Rituraj Biswas, Satyendra Kumar Srivastav, Shuvodeep Roy, Somnath Banerjee, Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha, Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Puja Singh, Tapesh Kumar Singh, Kumar Anurag Singh, Aditya Pratap Singh V.N. Raghupathy, Lagnesh Mishra, Parikshit P. Angadi, C. K. Sasi, Ms. Nayantara Roy, Ms. Deepa M. Kulkarni, Nishant R. Katneshwarkar, Leisangthem Roshmani Kh., Maibam Babina, Ms. Anupama Ngangom, Ranjan Mukherjee, K. V. Kharlyngdoh, Daniel Stone Lyngdoh, K. N. Madhusoodhanan, Ms. Nitya Madhusoodhanan, T. G. Narayanan Nair, Rajesh Srivastava, Mrs. K. Enatoli Sema, Amit Kumar Singh Anindita Pujari, Ms. Aarti Krupa Kumar, Amit Sharma, Ankit Raj, Ms. Indira Bhakar, Ms. Nidhi Jaswal, Ms. Ruchi Kohli, Ms. Aruna Mathur, Avneesh Arputham, Ms. Anuradha Arputham, Ms. Geetanjali for M/s Arputham Aruna & Co., Shuvodeep Roy, Rituraj Biswas, M. Yogesh Kanna, Mrs. Sujatha Bagadhi, S. Partha Sarathi, P. Venkat Reddy, Prashant Tyagi for M/s Venkat Palwai Law Associates, Rajan Kumar Chourasia, Jitendra Kumar Tripathi, Harish Pandey, Ms. Rachana Srivastava, Ms. Monika, Suhaan Mukerji, Ms. Astha Sharma, Amit Verma, Abhishek Manchanda, Ms. Kajal Dalal, Ms. Dimple Nagpal for M/s PLR Chambers, K. V. Jagdishvaran, Mrs. G. Indira, V. G. Pragasam, S. Prabu Ramasubramanian, S. Manuraj, T. N. Rama Rao, Hitesh Kumar Sharma, Mrs. T. Veera Reddy, Advs. for the appearing parties. A B C D E F G H 1232 SUPREME COURT REPORTS [2018] 14 S.C.R. A The Order of the Court was passed by MADAN B. LOKUR, J

#1. This application for directions and declarations has been filed in which it is prayed, inter alia, that prisoners sentenced to death by any court have a right to be treated at par with other convicted prisoners and should be provided all similar facilities as are provided to other prisoners. It is also prayed that solitary confinement of prisoners on death row or their separate and cellular confinement be struck down as unconstitutional.

#2. We do not think it necessary to go into all the issues raised in the application but find it necessary to place in perspective certain aspects of the rights of prisoners.

#3. One of the important questions before us is: When could it be said that a convict is under the sentence of death? Could it be said that when the Trial Court convicts a prisoner and sentences him to death, then that prisoner is a death row prisoner? Or, could it be said that when the death sentence is beyond judicial scrutiny, that is after the sentence is upheld by this Court, the mercy petition is rejected and a challenge to the rejection is dismissed, then the prisoner is a death row prisoner?

#4. It was submitted by the learned Amicus that even after the convict is sentenced to death by the Trial Court, he is entitled to be treated and dealt with like any other convicted prisoner and is therefore entitled to the opportunity to work on voluntary basis. The convict is also entitled to other facilities such as participating in educational programmes, vocational training and skill development as well as other institutional facilities available to other convicted prisoners.

#5. The issue must be considered in a humanitarian and compassionate manner. That apart the law laid down by this Court in Sunil Batra v. Delhi Administration and others1 is quite clear. It has been held in paragraph 223 of the Report that a prisoner under sentence of death can only mean a prisoner whose sentence of death has become final, conclusive and indefeasible and which cannot be annulled and voided by any judicial or constitutional procedure. In other words, a prisoner can be said to be a prisoner on death row when his sentence is beyond judicial scrutiny and would be operative without any intervention from any other authority. Till then, such a prisoner cannot be said to be under a sentence of death in the context of Section 30 of the Prisons Act, 1(1978) 4 SCC 494 B C D E F G H RE : INHUMAN CONDITIONS IN 1382 PRISONS [MADAN B. LOKUR, J] 1233

#1894. That being the position, as also mentioned in paragraph 101 of the Report, a prisoner is entitled to every creature comfort and facilities such as bed and pillow, opportunity to commerce with human kind, writing material, newspapers, books, meeting with family members etc.

#6. The above view has been reiterated in Sunil Batra (II) v. Delhi Administration2 in paragraph 42 of the Report and in Kishore Singh Ravinder Dev v. State of Rajasthan3 in paragraphs 10 and 13 of the Report. In paragraph 10 of the Report in Kishore Singh, it was held that there is no difference between a separate cell and solitary confinement. Therefore, a convict on death row is entitled to move within the confines of the prison like any other convict undergoing rigorous imprisonment. However, certain restrictions may be necessary for security reasons, but even then, it would be necessary to comply with natural justice provisions with an entitlement to file an appeal.

#7. Paragraph 10 reads as follows: “10. We cannot agree that either the Section or the Rules can be read in the absolutist expansionism the prison authorities would like us to read. That would virtually mean that prisoners are not persons to be dealt with at the mercy of the prison echelons. This country has no totalitarian territory even within the walled world we call prison. Articles 14, 19 and 21 operate within the prisons in the manner explained in Sunil Batra (I) [ Under Article 32 of the Constitution] , by a Constitution Bench of this Court. It is significant that the two opinions given separately in that judgment agree in spirit and substance, in reasoning and conclusions. Batra in that case was stated to be in a separate confinement and not solitary cell. An identical plea has been put forward here too. For the reasons given in Sunil Batra (I) case [ Under Article 32 of the Constitution] we must overrule the extenuatory submission that a separate cell is different from solitary confinement. The petitioners will, therefore, be entitled to move within the confines of the prison like others undergoing rigorous imprisonment. If special restrictions of a punitive or harsh character have to be imposed for convincing security reasons, it is necessary to comply with natural justice as indicated in Sunil Batra (J) case [ Under Article 32 of the Constitution]. Moreover, there must be an appeal not from Caeser to Caeser, but from a