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Mainstream, VOL LVII No 13 New Delhi March 16, 2019

The Anatomy of Capital Punishment in India

Sunday 17 March 2019

by Saumitra Mohan

Prison administration is an inalienable part of our justice delivery system which, many feel, calls for urgent relook and attention. The prison administration in India has existed almost unchanged since its inception though a nomenclatural change has been effected in the meanwhile. Our prisons are no longer called ‘jails’ and have been christened as correctional homes today in keeping with the changed ethos.

Even though the prison infrastructures have improved drastically over the years, we still have a long way to go as far as our treatment of the inmates inside these correctional homes is concerned. Whatever has come out through a recent study, titled ‘the Death Penalty Research Project’, is definitely not very uplifting. The researchers at Delhi’s National Law University (NLU) in this first ever comprehensive study of the socio-economic profile of prisoners serving death sentence in our jails have found most of them to be from the economically vulnerable sections, backward communities and religious minority groups.

The above study found our prison adminis-tration plagued by fundamental flaws where the death penalty seemed to be an instrument in systemic marginalisation of prisoners from vulnerable backgrounds. Almost 75 per cent of the prisoners interviewed were from the ‘econo-mically vulnerable’ and socially disadvantaged groups. Over half the death sentence awardees worked in the unstable unorganised sector and as auto drivers, brick kiln labourers, street vendors, manual scavengers, domestic workers and construction workers. About 19 per cent of those on the death row had attended only primary school. Many prisoners were disadvan-taged on both counts; nine out of ten who had never attended a school were also economically vulnerable. This is important because a prisoner’s economic status and level of education directly affects his ability to effectively partici-pate in the criminal justice system to secure a fair trial.

Delineating their socio-economic background, the resultant report discovered that more than 80 per cent of the prisoners facing capital punishment never completed their schooling and nearly half of them began working before they became a major. Moreover, around 25 per cent of the convicts were juveniles between the ages of 18 and 21 or above 60 years when the crime was committed. Among those facing death penalty, Dalits and tribals constituted 24.5 per cent while over 20 per cent belonged to the religious minorities. As it appears from the report, Indians belonging to the economically backward and vulnerable sections have found it difficult to bear the burdens imposed by our criminal justice system while handing out death sentences. As a result, it has been noticed that the death penalty often disproportionately affects those who have the least capabilities to negotiate our criminal justice system.

Talking about the right to be present at one’s own trial to defend oneself properly, only one out of the four interviewed had attended all their hearings. Some prisoners would merely be taken to the court premises by the police and then confined to a court lock-up without ever being produced in the courtroom. Of the 189 prisoners, 169 did not have a lawyer. Again, although anyone being arrested has to be informed the reason for the arrest, 136 prisoners said they were taken away to ‘sign papers’ and were never allowed to go home again.

Besides, 166 prisoners were not produced before a Magistrate within 24 hours of the arrest as is mandatory. Weeks and months passed before they were so produced; sometimes the arrest was recorded only then. The interim period was often spent in torture. The researchers interviewed a majority of the 385 prisoners on the death row, of whom one said he would be happy to be killed rather than being tortured every day. One woman had a miscarriage. Of the 92 prisoners who had confessed in police custody, 72 had made statements under torture. Death-row prisoners were often kept locked while the trial proceeded, and two were so far removed from the stand that they followed nothing of their own trial.

Even when the prisoners were present in court, the report says: “The very architecture of several trial courts often prevents any real chance of the accused participating in their own trial.” The accused were often confined at the back of the courtroom while proceedings between the judge and the lawyers took place in the front. It is notable that everyone charged with a crime has the right to an interpreter if s/he does not understand the language used in court, and to translated documents. But this requirement is seldom met. Over half the prisoners interviewed said they did not understand the proceedings at all—either because of the obstructive court architecture or the language used (often English).

A part of an accused’s right to a fair hearing is the right to challenge evidence produced against them. In India, trial courts can question the accused directly at any stage, and the Supreme Court has ruled that accused persons must be questioned separately about every material circumstance to be used against them, in a form they can understand. The study found that these provisions were routinely dis-honoured. Over 60 per cent of the prisoners interviewed said they were only asked to give yes/no responses during their trials, with no meaningful opportunity to explain themselves.

Most of the prisoners (seven out of ten) said their lawyers did not discuss case details with them. Almost 77 per cent never met their lawyers outside court, and the interaction inside the court was perfunctory. Many of the prisoners preferred to engage private lawyers notwith-standing their economic vulnerability because of the putative incompetence of the underpaid legal aid lawyers. Higher the courts, lesser the information prisoners have about their cases, often finding out about trial developments through prison authorities or media reports though it is not just death-row prisoners who face these violations.

Using statistics, case studies and one-to-one interviews, the Project has brought forth a rich resource for a close appreciation of the administration of the death penalty in India. The Project Team interviewed, between July 2013 to January 2015, all prisoners and their families to comprehend the sociology and psychology of the death penalty in this country. The research team identified 385 prisoners and got access to 373 of them. Surprisingly, there was no reliable database of the total number of death-row prisoners in India nor was there any official record or details with any agency of the total number of prisoners executed since independence. The insights of the study are based on the primary and secondary data as accessed through the National Legal Services Authority (NLSA), State and district level legal authorities, prison visits, RTI applications and the High Court.

As per another interesting finding, there is still no exhaustive list of offences punishable by death. Fiftynine sections in 18 Central laws, including 12 sections under the Indian Penal Code, falling under both homicide and non-homicide offences, carry the death penalty. Provisions under provincial legislations are separate, and have not yet been put together in a list. The constitutionality of death sentence was last upheld in May 1980 by the Supreme Court. In that judgement, the Apex Court ruled that the death penalty did not infringe the right to life as guaranteed by Article 21 of the Indian Constitution. However, the same should be imposed only in the ‘rarest of rare’ cases. Surprisingly, most prisoners sentenced to death in India are not eventually executed. Less than five per cent of those sentenced to death by Indian trial courts have actually been executed. In most of the cases, their death sentences were commuted by the higher courts following appeals.

The NLU report makes it clear that its findings do not necessarily suggest that the state authorities intentionally discriminate against poor or less educated prisoners. But the report does allege that the system is so loaded that there is a degree of indirect discrimination at work which worsens the chances of fair trial for prisoners from disadvantaged backgrounds. Yet issues pertaining to fair trial rights and treatment of prisoners on death row by the criminal justice system are almost never discussed with the required gravitas. Indirect discrimination happens against such prisoners when a seemingly impartial and innocuous practice impacts particular groups negatively, even if it is not purposely directed at the groups.

But given the irreversible nature of the death penalty, it is particularly important that fair trial rights are scrupulously safeguarded in such cases. International human rights discourse agrees that every death sentence imposed following an unfair trial violates the right to life. Hence, it is suggested that the only way to end this injustice is to impose an immediate moratorium on the use of the death penalty as a first step towards abolition of the same. The Law Commission of India, in a report last year, recommended the abolition of the death penalty in phases, beginning with ending it for all offences except those related to terrorism.

The Indian criminal justice is said to follow several practices which hurt the poor and marginalised much more than others. What needs investigation is whether these practices are the outcomes of entrenched social and economic inequalities or whether they have become a form of institutionalised indirect discrimination? The Law Commission said in a report last year on the death penalty: “The vagaries of the system also operate dispropor-tionately against the socially and economically marginalised who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.”

In the vaguely feel-good ambience, the Death Penalty India Report comes as a rude shock. Principles of custodial care remain theoretical for them, although it is obligatory for the police to take care of their well-being and health. One just hopes that the findings of the report would nudge the prison administrators and policy- makers to sit up and take notice to make meaningful interventions to ensure the rights of the undertrials to have a well-oiled justice delivery system in the country.

Dr Saumitra Mohan, IAS, is a Commissioner of School Education, Department of School Education, Kolkata.

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