New Delhi: In a landmark judgement delivered last week, the Supreme Court commuted the death sentence of 15 convicts arguing that delays by the President in rejecting mercy petitions by death row convicts amounted to torture. The decision was welcomed by those who want the death penalty to be abolished, but concerns remain. There is very little data on convicts who are awarded the death penalty and lesser still on how such prisoners are treated by the criminal justice system.
Anup Surendranath, who heads the death penalty research project at the National Law University, Delhi, has been looking at structural issues, and his team has interviewed over 171 death row inmates in Uttar Pradesh, Bihar and Karnataka. The group had also interviewed all those prisoners whose mercy petitions have been rejected, as well as prison authorities. In an interview with Mint, Surendranath spoke about difficulties such as lack of information for convicts and the poor state of legal aid. Edited excerpts:
The judgement touched upon the time the convicts spend in prison. What has your research found in this regard?
Once death row convicts are in jail, in many prisons they are kept separately. It is extremely worrying that many of the death row prisoners, who want to work to keep their minds off things, are not allowed to work at all—they are not allowed to participate in prison work. That is the jail practice. Then, it poses the question about the purpose of punishment—if the idea is reformation, then there is certainly no chance of reformation being given to death row prisoners. They just have to spend time in their barracks 24X7. We have witnessed even more shocking instances where death row prisoners have not been allowed to take exams of open universities. So it is that scary imagery that you are keeping them fed till you hang them. We need to think how our prisons treat death row convicts. It is inhumane for a prison system to day in and day out reinforce that there is no hope left.
What made you look at the issue of death penalty where a lot of work has already been done?
Work on the issue of death penalty in India is limited to analysis of judgment, but there is no hard data about who gets the death penalty, what is the process that people go through while on death row, their experience in prison at the trial stage, at the sentencing stage. There is just no work on that and so we thought that we would do basic ground level data collection to answer some of these questions and see how death penalty is administered in India. Much of the legal recourse revolves around the morality and constitutionality of the death penalty. Our work is beyond the ethics of it.
What has your research shown in terms of the convicts’ legal representation and their experience with the judiciary?
In terms of their experience at the trial—(with) trial court lawyers and lower judiciary—there is very intense alienation. Convicts believe no one is really interested in listening to them. Their lawyer has not spent time with them. The lawyer has not listened to them, not discussed the case with them. The only time they get to meet the lawyer really is at the trial itself. Otherwise, they are brushed off by the lawyers.
In terms of legal representation, the narrative of the prisoner is missing. Their story, their narrative is left out from the case records. So, clearly there is not much conversation happening between the convict and the lawyer. The dissatisfaction is palpable both in cases of state as well as private lawyers. Usually, they can afford only a meagre sum and that does not make much qualitative difference in legal representation.
In terms of trial court judges, the picture is mixed. Some prisoners have said how they have been treated as human beings and remember it many, many years later. There are also those judges who treated them poorly, did not allow them to speak, those who sided with prosecution and the victim’s family. Some judges were politically motivated; caste has played a role in others. Another recurring complaint has been that their statements are taken by judges mechanically—that opportunity that the judge can give to prisoners is not given, let alone appreciation of evidence, procedural safeguard, etc. A simple opportunity of saying their side of the story being denied—judges don’t seem to be doing that at all.
How has the trial proceeding been for prisoners?
You would assume that if you are sentencing someone to death, your adherence to the Criminal Procedure Code (which details the process of investigation, trial, etc.,) would also be at its highest. But clearly that is not the case. There is a major deviance from the code at various stages, be it in investigation, custody, evidence, cross examination. Even at the appeals stage, prisoners don’t know when the hearing takes place, when they are completed, what has transpired. Even when they are supposed to be presented in trial courts, there have been times when they have been taken out for hearings but just kept in the van while the case is on. So, one of the biggest challenges is that they don’t even know what is happening in their own cases.
How much compliance is seen with the sentencing process?
There are a lot of violations as far as the sentencing procedure goes. There is hardly any real sentencing hearing—no real weighing of mitigating and aggravating factors, which can determine the quantum of punishment.
How has your experience been thus far, and any incidents that stand out?
It has been interesting. We have travelled to far-flung areas to have these conversations. It is difficult to track families—sometimes they don’t want to have anything to do with the person, some have moved on. Sometimes the whole village gathers—gatherings have been both sympathetic and hostile. So students have had to deal with a range of reactions even before the work has begun.
In terms of a particular incident, in Bihar students had to go into what the district authorities thought were “Maoist-infested areas". The cops went with them in two jeeps, armed with guns. We felt that the interview wasn’t great because the cops stood outside with their weapons and kept interrupting. The students came back and said the response wasn’t great because of the presence of a dozen armed policemen and they wanted to go back. Then we had to take a call on going back without informing district authorities, and these are difficult choices. Some of those students chose to go back and did it.
What is the socio-economic profile of prisoners on death row and what does the state’s statistics tell about the number of prisoners currently awaiting execution?
My own experience of the socio-economic profile is that a very high percentage are poor, a very high percentage are lower castes and, within that, a fair number are Dalits. In terrorist cases, where anti-terror statutes have been used, they are either Muslims or Dalits. Interestingly, information about how many people are on death row is not aggregated; neither at the central level nor at the prison department level in the state capitals. Currently, there is no authority which collates this data. The only way to be actually sure about how many death row prisoners there are is to check with each jail in the country —going jail by jail. We approach through the state legal services authorities. Prison authorities write to individual jails and then they respond. We have also written to state governors in some cases, asking for such data. We also send researchers to each prison to confirm and do on-the-ground verification.
Where do you think the state has failed and what would be your recommendations?
The failure of the state is simply that it finds it is acceptable to sentence people to death on the basis of a criminal justice system that has very little credibility. We use a broken criminal justice system to inflict great suffering through the death penalty—and we can’t ignore the fact that this suffering for the prisoner and his/her family starts from the day a prisoner is sentenced to death. To live in constant uncertainty about your life, anticipating death every single day is sheer torture and we must recognize it for what it is.
None of the professed aims of the death penalty can be met using the criminal justice system we have. It has deep structural defects that can be rectified only through a social, political and economic transformation of our society—the kind of transformation that seems quite impossible for many generations to come. In that context, we have no choice but to abolish the death penalty.