The issue of solitary confinement has come before Supreme Court in the case of Sunil Batra (I), when a writ petition had filed in Supreme court against the solitary confinement of a prisoner Sunil Batra who was lodged in the prison under death sentence but his appeal was pending. The question before the court was whether the quasi-solitudinous cellular custody of sorts imposed on Batra is implicit in his death sentence and otherwise valid?

Meaning of Solitary Confinement

Solitary confinement means such confinement with or without labour as entirely secludes the prisoner both from sight of, and communication with, other prisoners.

The hard core of such confinement is

(a) seclusion of the prisoner,

(b) from sight of other prisoners, and

(c) from communication with other prisoners.

To see a fellow being is a solace to the soul. Communication with one’s own kind is a balm to the balm to the aching spirit. Denial of both with complete segregation superimposed, is the journey to insanity. To test whether a certain type of segregation is, in Indian terms, solitary confinement, we have merely to verify whether interdict on sight and communication with other prisoners is imposed. It is no use providing view of or conversation with jail visitors, jail officers or stray relations. The crux of the matter is communication with other prisoners in full view.

Solitary confinement as a punishment is regarded as “the complete isolation of the prisoner from all human society and his confinement in a cell of considerable size so arranged that he had no direct intercourse or sight of any human being and no employment or instruction“.

The meaning of close confinement

It is worthwhile comparing the allied but less harsh confinement called “close confinement” which means “such custody, and only such custody as will safely secure the production or the body of the prisoner on the day appointed for his execution”.

A more practical identification of solitary confinement is what we find in Black’s Law Dictionary: “ln a general sense, the separate confinement of a prisoner, with only occasional access of any other person and that only at the discretion of the jailor; in a stricter sense, the complete isolation of a prisoner from all human society and his confinement in a cell so arranged that he has no direct intercourse with or sight of any human being, and no employment or instruction.”

Complete isolation from all human society is solitary confinement in its stricter sense. The separate confinement of a person with occasional access of other persons is also solitary confinement.

Philosophy against Solitary Confinement

The judgment in the case was delivered by Justice Krishna Iyer. Speaking for the bench, Justice Iyer said that,

“Necessarily our perspective has to be humanistic-juristic becoming the Karuna of our Constitution and the international consciousness on human rights.”

In the words of Will Durant[1]:

‘It is time for all good man to come to the aid of their party, whose name is civilization’.

And, Chief Justice Warren E. Burger observed:

“what is to be done with an offender once he is convicted, that this is ‘one of mankind’s unsolved and largely neglected problems’.

And Winston Churchill’s choice thought and chiselled diction bear repetition:

“The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.”

 And a clinching comment concludes this thought. The White Paper entitled “People in Prison” published by the British Government in November, 1969, articulates a profound thought in its concluding paragraph, much less true for India as for the United Kingdom:

‘A society that believes in the worth of individual beings can have the quality of its belief judged, at least in part, by the quality of its prison and probate services and of the resources made available to them.’

The punitive Segregation in America

Punitive segregation is regarded as too harsh that it is limited to no more than 8 days except with special approval of the commissioner of corrections in many American states. The average for this type of punitive incarceration is five days. Now note what the U.S District court states:

“This punishment is imposed only after a formal written notice, followed by a hearing before the disciplinary committee.”

The emphasis on limited periods and hearing before punishment have been built into the procedure for punishment of solitary confinement. This is important when we consider whether any form of harsh imprisonment, whether of solitary confinement or of bar fetters, should not comply with natural justice and be severely limited in duration.

An Afro-American citizen Sostre, brought a Civil Rights action Sostre v. Rockfeller[2] complaining of solitary confinement otherwise called punitive segregation. The yearlong stay in that segregation cell was bitter. The sting of the situation was ‘human isolation loss of group privileges’. On this Judge held:

“This court finds that punitive segregation under the conditions to which plaintiff was subjected at Green Haven is physically harsh, destructive of morale, dehumanizing in the sense that it is needlessly degrading, and dangerous to the maintenance of sanity when continued for more than a short period of time which should certainly not exceed 15 days.”

The decision on punitive segregation confinement in Sostre v. Rockfeller is of value since the case, as here, is one of indefinite punitive confinement. The Court held that it was so disproportionate that it amounted to cruel and unusual punishment:

“The Court also holds that the totality of the circumstances to which Sostre was subjected for more than a year was cruel and unusual punishment when tested against the evolving standards of decency that mark the progress of maturing society. This condemnation of segregation is the experience years ago of people going stir crazy, especially in segregation.

The conditions which undeniably existed in punitive segregation of Green Haven this Court finds, could only serve to destroy completely the spirit and undermine the sanity of the prisoner when imposed for more than fifteen days.”

Subjecting a prisoner to the demonstrated risk of the loss of his sanity as punishment for any offence in prison is plainly cruel and unusual punishment as judged by present standards of decency.

The legality of Solitary confinement in the light of Article 21 of constitution

Art 21 insists upon procedure established by law before any person can be denuded of his freedom of locomotion. What then is the law relied upon by the State to cut down the liberty of the person to the bare bones of utter isolation?

Section 30 of the Prisons Act is pressed into service in answer. The section said,

“(1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Jailer and all articles shall be taken from him which the Jailer deems it dangerous or inexpedient to leave in his possession.

(2) Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under the charge of a guard.”

Article 21 and Procedure Established by Law

The doctrine ‘Procedure Established by law’ takes inspiration from American doctrine ‘due process of law’. Although, our Constitution has no ‘due process’ clause or the VIII Amendment; but, in this branch of law, after Cooper and Maneka Gandhi the consequence is the same.

For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Art. 14 and 19 and if inflicted with procedural unfairness, falls foul of Art. 21.

Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner’s shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. [3]

The operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogether. For example, public addresses by prisoners may be put down but talking to fellow prisoners cannot. Vows of silence or taboos on writing poetry or drawing cartoons are violative of Article 19. So also, locomotion may be limited by the needs of imprisonment but binding hand and foot, with hoops of steel, every man or women sentenced for a term is doing violence to Part III.

The necessary sequitur is that even a person under death sentence has human rights which are non-negotiable and even a dangerous prisoner, standing trial, has basic liberties which cannot be bartered away. The Cooper effect and the Maneka armour vis-a-vis prisons. The ratio in A. K. Gopalan’s case where the Court, by a majority, adopted a restrictive construction and ruled out the play of fundamental rights for anyone under valid detention, was upturned in R.C. Coopers case.[4]

A dynamic meaning must attach to life and liberty. This court has upheld the right of a prisoner to have his work published if it does not violate prison discipline. (State v. Pandurang)

The martyrdom of Gopalan and resurrection by Cooper paved the way for Maneka case, where the potent invocation of the rest of Part III, even after one of the rights was validity put out of action, was affirmed in indubitable breadth. So the law is that for a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment.

The omens are hopeful for imprisoned humans because they can enchantingly invoke Maneka and, in its wake Arts. 14, 19 and even 21, to repel the deadening impact of unconscionable incarceratory inflictions based on some lurid legislative text or untested tradition.

Prisons are built with stones of Law’ (sang William Blake) and so, when human rights are hashed behind bars, constitutional justice impeaches such law. In this sense, courts which sign citizens into prisons have an onerous duty to ensure that, during detention and subject to the Constitution, freedom from torture belongs to the detenu.

The physiological effect of solitary confinement

The ‘solitary’ hardens the criminal, makes him desperate and breaks his spirit or makes him break out of there regardless of risk. In short, it is counter-productive.

A few quotes from a recent American study on prisons, hammer home the negativity of the “solitary”.[5]

“The “hole”, or solitary confinement, is often referred to as an “Adjustment Center” (AC) Here is one man’s memory of it from San Quentin prison in California. When I first saw it, I just couldn’t believe it. It was a dungeon. Nothing but cement and filth. I could not imagine who have lived in there before me. All day I just sat there on my bunk, in a sort of daze? staring at my new abode ….

Instead of bad spring there was a flat steel plate (which is the same throughout the Hole); the window was cemented up, except for the very top section, which was one quarter the standard size, and without any glass panes, thus exposing, the occupant to all kinds of weather (the rain would actually come through, into the cell);

there was no shelving whatsoever-not so much as a hook to hand a towel or clothes on (and it was against the regulations to fix up a clothes line; so anyone who did so, did it at the risk of being beefed). In short, there was nothing; just four walls, and room enough to take five paces-not strides-from one end of the cell to the other. Nothing to break the monotony of cement except the usual graffiti. The window was too high for a view of anything but the roof of the wing next door. It was truly a dungeon; a bomb; a crypt. And it was “Home” for twenty-four hours a day, every day.”

When handling the inner dynamics of human action, we must be informed of the basic factor of human` psychology that “Nature abhors a vacuum; and man is a social animal“. (Spinoza).

To be mindless is to be cruel and that is reflex action of the jail bosses when prisoners are routinely sent to the solitary cell on hunch or less. Alleging chances of killing or being killed as the alibi for awarding ‘solitary’ is an easy ‘security’ phobia which shows little appreciation of the suffering so heaped. And abuse is undetected and indiscriminate in that walled world within the world.

The great Judge Warren, CJ in Trop. v. Dulles refers to the condemnation of segregation and observes:

“This condemnation of segregation is the experience years ago of people going stir crazy, especially in segregation”.

Judicial opinion across the Atlantic, has veered to the view that it is near-insanity to inflict prolonged solitary segregation upon prisoners. And the British System has bid farewell to solitary confinement as a punishment.

Experiments on solitudinous

  • Harlow and Harlow (1962) have conducted experiments with species closely related to human beings. Of special interest are the variables involved in the causation of psycho pathological syndromes in man. In measuring the relation between social environment and social development, Harlow reports that the most constant and dramatic finding that social isolation represents the most destructive abnormal environment. As this isolation progresses from partial to total, the severity of impairment increases, ranging from schizord-like postures to depressive-type postures.[6]
  • Eloquent testimony to man’s need for belonging, acceptance, and approval is provided by the experience of small groups of scientists, officer, and enlisted personnel who voluntarily subjected themselves to isolated antartic living for the better part of a year.

During this period troublesome individuals were occasionally given the “silent treatment” in which a man would be ignored by the group as if he did not exist. This ‘isolation’ procedure resulted in a syndrome called the ‘long eye’, characterized by varying combinations of sleeplessness, outbursts of crying, hallucinations, a deterioration in habits of personal hygiene, and tendency for the man to move aimlessly about or to lie in his bunk staring into space. These symptoms cleared up when he was again accepted by and permitted to interact with others in the group.[7]

Indian Criminologists on Solitary confinement

Criminological jurists like Dr. Bhattacharya[8], who was also judge of Calcutta High Court, take the view that cellular or separate confinement deserves to be condemned:

“Many penologists in India take exception to the solitary confinement rule. It is hard to differentiate between this as a mode of judicial punishment and by way of a jail punishment for the results are equally disastrous to the physical and mental health of those subjected to them”

Yahya Ali. J., in 1947, before our constitutional charter Came into being, had expressed himself strongly against ‘solitary confinement’, the learned Judge observed:

” Solitary confinement should not be ordered unless there are special features appearing in the evidence such as extreme violence or brutality in the commission of the offence. The only reason given by the Magistrate is that the ‘sanctity or home life has become to him (the appellant) a mere mockery and the desire to take what he wants regardless of ownership is not in him’. This can be said of every person convicted under S. 379, Penal Code and I do not consider that to be I circumstance justifying the passing of an order of solitary confinement. The direction regarding solitary confinement will be deleted.”

The Law Commission of India on Solitary confinement

The Law Commission of India in its 42nd Report took the view that solitary confinement was

“out of tune with modern thinking and should not find a place in the Penal Code as a punishment to be ordered by any criminal court”.

The purpose to confine in cell apart from all prisoners

The next attempt is to discern the meaning of confinement “in a cell apart from all other prisoners”. The purpose is to maintain discipline and discipline is to avoid disorder fight and other untoward incidents. Segregation of one person all alone in a single cell is solitary confinement. That is a separate punishment which the Court alone can impose.

Indeed, in a jail, cells are ordinarily occupied by more than one inmate and community life inside dormitories and cells is common. Therefore, “to be confined in a cell” does not compel us to the conclusion that the confinement should be in a solitary cell. Apart from all other prisoners” used in section 30(2) is also a phrase of flexible import.

‘Apart’ has the sense of ‘To one side, aside, apart from each other, separately in action or function’ (Shorter Oxford English Dictionary).

Segregation into an isolated cell is not warranted by the word. All that it connotes is that in a cell where there is a plurality of inmates the death sentence will have to be kept separated from the rest in the same cell but no too close to the others. And this separation can be effectively achieved because the condemned prisoner will be placed under the charge of a guard by day and by night. The guard will thus stand in between the several inmates and the condemned prisoner.

Such a meaning preserves the disciplinary purpose and avoids punitive harshness. Viewed functionally, the separation is authorised, not obligated. that is to say, if discipline needs it the authority shall be entitled to and the prisoner shall be liable to separate keeping within the same cell as explained above.

Solitary confinement in Sunil Batra

In the judgment, the court directed the jail authorities to remove Sunil Batra from Solitary confinement. However, the court did soft interpretation of section 30 and denied to declare it invalid and unconstitutional.


Sunil Batra Etc. vs Delhi Administration; 1978 AIR 1675, 1979 SCR (1) 392

[1] Will Durant’s Article “What Life has taught Me”. published in Bhawan’ Journal, Vol. XXIV, No. 18, April 9,1978. p. 71 at p. 72.

[2] 312 F. Suppl. 863 (1970)

[3] Sunil Batra Etc vs Delhi Administration; 1978 AIR 1675, 1979 SCR (1) 392

[4] [1971] 1 SCR 512

[5] Rogers G. Lamphear: Freedom from Crime through the M. Sidhi. Program, pp. 128-129.

[6] Psychiatrist and the Urban-setting-Comprehensive Text Book of Psychiatrist-ll, 2nd Ed. Vol.

II (1976) by A . M. Freeman, Harlod I. Kaplan, Benjamin J. Sedock, p. 2503.

[7] James C. Coleman-Abnormal Psychology and Modern Life p. 105.

[8] B. K. Bhattacharya, Prisons, p. 117