Convicts cannot be kept in condemned cells until their death sentence is finalised: HC

The death sentence is only considered to be ‘finalised’ if it is upheld by the Appellate Division on review and the president declines a pardon, the court said

The High Court has declared that no convict can be kept in the ‘condemned cells’ used to house death-row inmates until their death sentences are ‘finalised’.

The death sentence is only considered to be ‘finalised’ if it is upheld by the Appellate Division on review and the president declines to pardon the convict, the court said.

The court ordered that any convict kept in a condemned cell or solitary cell without the death reference being finalised must be gradually transferred to an ordinary cell. This work must be completed within two years, the High Court said.

However, in special cases, the court opined that a convict suffering from a contagious disease maybe kept in a condemned cell in consideration of the safety of other inmates. A convict also has the right to have their statement heard in such cases.

The bench of Justice Sheikh Hassan Arif and Justice Md Bazlur Rahman delivered the verdict after hearing writ petitions filed by three convicts in the condemned cells of prisons in Chattogram, Sylhet and Cumilla.

Lawyer Md Shishir Monir represented the petitioners while Deputy Attorney General Amit Talukder stood for the state.

On Jun 18, 2021 a national daily published a report on three convicts kept in condemned cells. On Sept 3 of that year, Shishir filed a petition including the report.

The three convicts are Satkania’s Zillur Rahman, held in a prison in Chattogram, Sunamganj’s Abdul Bashir, held in a prison in Sylhet, and Khagrachhari’s Shah Alam, kept in a prison in Cumilla.

Shishir said on Monday, “The High Court issued a rule asking why keeping prisoners in condemned cells before the death sentence is finalised should not be declared illegal and why Section 980 of the Jail Code should not be declared unconstitutional. At the same time it instructed the prison authorities to submit an investigation report on prisoners kept in condemned cells within six months.”

“A hearing on that rule was held today and a verdict delivered.”

In its observations, the court said that confinement in condemned cells is considered a form of punishment under the penal code. As such, keeping a convict in the cell after the death sentence is finalised compounds the punishment.

The court also said the government should reflect these decisions and observations in the work it is doing to reform the prison code.

The verdict also instructed the prison authorities to provide information to anyone who inquires about incarcerations under the Right to Information Act.

The court also issued instructions on the bail applications of death row convicts.

Pointing out that the bail pleas of death row convicts are not accepted by the High Court, the court ordered that they should also have the ability to petition for bail while their appeal is pending.

It pointed to the case of Sunil Batra vs Delhi Administration (1978) for precedence regarding when a death penalty is finalised.

That case stated, “A ‘prisoner under sentence of death’ … can only mean a prisoner whose sentence of death has become final, conclusive and indefeasible which cannot be annulled or avoided by any judicial or constitutional procedure. Till then a person who is awarded capital punishment can be said to be a prisoner under sentence of death. There is an inordinate time lag between the sentence of death passed by the Sessions Judge and the final disposal of appeal by the High Court or Supreme Court depending on the circumstances of each case or the rejection of an application for mercy by the President or the Governor.”