Solitary Confinement Under the Sanhita

Where the sentence exceeds three months. The solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, again with intervals of not less duration.

A worked example

Iqbal is sentenced to two years' rigorous imprisonment, and the court orders three months' solitary confinement.

Is three months lawful? Yes as to quantum. The term exceeds one year, so section 11(c) permits up to three months, and three months is also the overall ceiling.

How may it be executed? Not as a block of three months. Because the imprisonment awarded exceeds three months, section 12 limits solitary confinement to seven days in any one month, with intervals of at least seven days. So the three months of solitary have to be spread across the two year sentence at a maximum rate of seven days a month.

Work that out and the arithmetic is striking. Three months is roughly ninety days. At seven days a month it takes about thirteen months of the sentence to deliver, and the prisoner never spends more than a week in solitude at a stretch. That is what the section is for.

Suppose the sentence had been four months. Section 11(a) applies only to terms not exceeding six months, so the ceiling is one month. And because the imprisonment awarded exceeds three months, the seven days a month rule in section 12 applies to that too.

What the courts have added

The statutory scheme is only half the law, and an answer that stops at sections 11 and 12 misses the part that matters most.

Solitary confinement is a separate and grave punishment, not a mode of custody. The Supreme Court has held that it may be imposed only by a court as part of a sentence, and that a prison authority which subjects a prisoner to solitary confinement of its own motion is inflicting a punishment it has no power to inflict. That is the subject of [Sunil Batra: Solitary Confinement and Bar Fetters].

A prisoner under sentence of death is not thereby in solitary confinement. Section 30(2) of the Prisons Act 1894 requires such a prisoner to be confined in a cell apart from all other prisoners and under the charge of a guard. That has been read as a requirement of security and supervision, not as an authority to impose solitary confinement on a prisoner whom no court has sentenced to it. See [The Prisoner Under Sentence of Death].

Section 29 of the Prisons Act 1894 is a safeguard, not a source of power. It provides that no cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer of the prison, and that a prisoner so confined for more than twenty four hours shall be visited at least once a day by the Medical Officer. In Maharashtra the words "or Medical Subordinate" in that section were replaced by "or any Officer authorised by the Medical Officer in this behalf" by Bombay Act XLV of 1894.

Solitary, separate and cellular confinement distinguished

Three different things share a resemblance and MU's Module IV depends on telling them apart.

Criticism

It is medically indefensible. The evidence that prolonged isolation damages mental health is not seriously contested, and international standards now treat solitary confinement beyond fifteen consecutive days as prohibited.

It serves no theory well. It cannot deter a person who is already imprisoned any more than the imprisonment does. It cannot reform. It is defensible, if at all, on a purely retributive footing, and even there it is difficult to say what offence deserves isolation rather than a longer sentence.

It is almost never awarded. Indian sentencing courts hardly ever order solitary confinement under section 11, so the practical law of solitude in Indian prisons is the prison discipline law in section 46 of the Prisons Act 1894, which is administered by the Superintendent and not by a judge. That is the real problem and it is what makes [Summary Punishment by the Superintendent] the chapter that matters.

Quick revision

• Sections 11 and 12 of the Bharatiya Nyaya Sanhita 2023, reproducing sections 73 and 74 of the Indian Penal Code.
• Only a court with power to award rigorous imprisonment may order it, and only as a portion of that sentence.
• Ceiling three months in the whole. Scale: one month if the term is up to six months; two months if over six months and up to a year; three months if over a year.
• Execution, section 12: never more than fourteen days at a time, with intervals of at least equal length; and where the sentence exceeds three months, never more than seven days in any one month, again with equal intervals.
• Section 29 of the Prisons Act 1894 requires the cell to allow communication with an officer and a daily medical visit after twenty four hours.
• Distinguish solitary confinement from separate confinement, section 46(8), and cellular confinement, section 46(10), both awarded by the Superintendent.

Test yourself

1. What is the maximum solitary confinement a court may order on a sentence of eight months' rigorous imprisonment, and how may it be executed? Two months, because the term exceeds six months and does not exceed one year, so section 11(b) applies. As to execution, section 12 applies twice over: never more than fourteen days at a time with intervals of at least equal length, and, because the imprisonment awarded exceeds three months, never more than seven days in any one month with intervals of at least seven days.

2. May a prison Superintendent order solitary confinement? No. Sections 11 and 12 of the Sanhita confer the power on the sentencing court. A Superintendent may award separate confinement under section 46(8) of the Prisons Act 1894 and cellular confinement under section 46(10), which are defined differently and are limited differently, but not solitary confinement.

3. Is a prisoner under sentence of death in solitary confinement? No, not by reason of the sentence. Section 30(2) of the Prisons Act 1894 requires such a prisoner to be confined in a cell apart from other prisoners and under the charge of a guard, which is a measure of security and supervision. Solitary confinement is a punishment which only a court may impose, and it may not be imposed on a condemned prisoner by the prison administration under cover of section 30.

4. Distinguish separate from cellular confinement. Separate confinement, section 46(8) of the Prisons Act 1894, secludes the prisoner from communication with but not from sight of other prisoners, allows not less than one hour's exercise a day and meals in association with one or more other prisoners, and may last up to three months. Cellular confinement, section 46(10), entirely secludes the prisoner from communication with but not from sight of others, may last up to fourteen days, and must be followed by an interval of not less duration before any further cellular or solitary confinement.