Supreme Court considers death-row convict’s solitary confinement for 11 years, reserves judgment

The Supreme Court is likely to deliver a landmark judgment on the ground of solitary confinement of death-row prisoners in B.A. Umesh vs. Union of India, if today’s hearing is any indication.

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THE Supreme Court bench of Justices U.U. Lalit, S. Ravindra Bhat and P.S.Narasimha, on Tuesday, reserved its judgment after hearing arguments in the case of B.A.Umesh vs. Union of India.

Umesh is a death-row convict, currently lodged in Belgaum Central Prison, Karnataka, after he was sentenced to death in 2006 for offences under Sections 376 (punishment for rape), 302 (punishment for murder) and 392 (punishment for robbery) of the Indian Penal Code, committed in 1998. The Supreme Court upheld the death sentence awarded to him in 2011.

His mercy petition was rejected by the President on May 17, 2013. A three-judge bench of the Supreme Court, comprising Justices Ranjan Gogoi, Prafulla C. Pant, and A.M. Khanwilkar, dismissed his review petition by a reasoned order, after open hearing, on October 3, 2016.

Even after recording a finding that there was avoidable delay to the extent of 550 days in disposing of the mercy petition, the Karnataka High Court did not grant any relief to Umesh and vacated the stay on his execution on September 29, 2021. The High Court had concluded that there was no excessive, unexplained, inordinate delay attributable to the respondents in deciding Umesh’s mercy petition. The High Court had also held that all the relevant and crucial materials required for deciding the mercy petition were placed before the Governor and the President, and nothing has been kept out of consideration. The High Court had also denied Umesh’s plea that he was kept in solitary confinement.

In his appeal, Umesh, through his advocate, Dr Yug Mohit Chaudhry, had stressed his solitary confinement for 11 years, as proved by the letter written by a medical officer, which was not controverted, as a ground for relief. He pointed out that the law laid down by a five-judge Constitution bench of the Supreme Court in Sunil Batra vs. Delhi Administration & Ors. (1978) against solitary confinement was violated.

On April 21, the bench had directed the District Judge, Belgaum to inspect the Belgaum Central Jail and place a report along with pictures, if any, to enable it have a clear understanding of the ground situation with regard to Umesh’s grievance that he suffered solitary confinement for 11 years. “The report shall concentrate on location of the barracks in which the cells of Death Row Convicts are situated”, the bench had held in its order. The bench wanted to gather the “typical life-style of death row convicts and how their days are spent”.

On Tuesday, the bench perused the District Judge’s report, as well as interviewed the current Jail Superintendent in person. The bench confirmed, after going through the report, that the petitioner was kept in “andheri” block from 2006 to October 26, 2016, when stay was granted by High Court on the execution of death sentence.

In the andheri block, there were 12 cells. One prisoner was kept in one cell, and was not allowed to get out of the cell at any time except for two yoga camps, and only once when there was a prayer for Lord Ayyappa during the entire 11 years, the Supreme Court found. This was the “worst” phase of Umesh’s prison term. His confinement in andheri block was “solitary confinement” in terms of Sunil Batra, the bench noted on the basis of Chaudhry’s submissions.

Between 2016 and 2019, the petitioner remained in andheri block, but was allowed to come out three times a day. After 2019, the petitioner was shifted to the present block. The district judge’s report focussed on the prison conditions during this phase after 2019.

The debate

During the hearing, Sonia Mathur, senior advocate appearing for the Union of India, contended that there cannot be a straight jacket formula to determine what constitutes inordinate delay in deciding mercy petitions by the Executive and whether the President was apprised of all the relevant materials concerning the petitioner. The President called for the petitioner’s medical records, and the contention that he was mentally retarded and could not have committed the crime was considered, she told the bench.

She agreed with the bench that at the stage of considering the delay as a ground for commutation of death sentence, the nature of the crime committed by the petitioner should be precluded. Justice Lalit recited a Sanskrit verse which means that worries keep burning even a living being to depict the mental agony of a death-row convict.

The bench noted that while considering delay in deciding the mercy petition of the death-row convict, the court had never considered judicial delays as a ground. At one point, the bench asked the counsel to remember that the law laid down by a five-judge Constitution bench of the Supreme Court in Triveniben vs. State of Gujarat (1989) should be contextualised, as it was 33 years ago. At that time, review in death penalty cases was never an open review, the bench noted. The bench made the observation in response to Additional Advocate General of Karnataka, Nikhil Goel’s submission that the prisoner’s “ray of hope” as mentioned in Triveniben is available till the conclusion of judicial proceedings. Justice Lalit asked whether the “ray of hope” is available to the prisoner till the mercy petition is disposed of. Goel replied that the prisoner’s mental trauma begins after the “ray of hope” vanishes. Relying on Triveniben, Goel argued that delay can’t be looked at in isolation. The mercy petition was dismissed on May 12, 2013, while the petitioner’s judicial proceedings came to an end on October 3, 2016, he pointed out.

In Shatrughan Chauhan & Anr. vs. Union of India (2014), the Supreme Court held that supervening circumstances like delay in deciding mercy petitions, and mental state of the prisoner can be grounds for commuting death sentence to life imprisonment.

Both the judgments in Triveniben and Shatrughan Chauhan came for critical scrutiny before the Supreme Court during the hearing. Justice Ravindra Bhat, while agreeing that the “clock stops” at some point, suggested that the mental agony of the prisoner, described as “brooding horror of hanging” should be considered because “we are dealing with life”.

Click here to read the order.