“Who, by and large, are the men whom the gallows swallow? The white-collar criminals and the corporate criminals whose wilful economic and environmental crimes inflict mass deaths or who hire assassins and murder by remote control? Rarely. With a few exceptions, they hardly fear the halter. The feuding villager, heady with country liquor, the striking workers desperate with defeat, the political dissenter and sacrificing liberator intent on changing the social order from satanic misrule, the waifs and strays whom society has hardened by neglect into street toughs, or the poor householder-husband or wife driven by dire necessity or burst of tantrums – it is this person who is the morning meal of the macabre executioner.”
These words by Justice Krishna Iyer in the case of Rajendra Prasad v State of UP (1979) are featured prominently in the Death Penalty India Report released on Friday, setting out the findings of the Death Penalty Research Project at the National Law University in Delhi. This project, started in July 2013 and completed in January 2016, aimed to understand ‘who gets the death penalty, how they get it and what it is like to live under the sentence of death in Indian prisons.’ To this end they endeavoured to interview every single death row prisoner in the country, and their families, and with some small exceptions, they were successful in this endeavour.
The report itself, divided into two volumes, is a document of astonishing scope and detail, and mixes data and analysis on the death penalty with heart-wrenching stories of the experiences of death row prisoners, before their trial, during their trial, and through the various stages of appeals and petitions. The authors of the report are at pains to not take a philosophical position on the validity of the death penalty itself, but the readers of the report are under no such constraints and I contend that it would be difficult, if not impossible, to continue supporting the death penalty in India, after having gone through the report.
There are several aspects of the death penalty and its operation that the report talks about and I want to excerpt a small number of them to provide a sense of the staggeringly dysfunctional system behind this most final and irreversible of punishments. Some of these things we have a vague idea of, but to see them comprehensively analysed provides a clear picture otherwise unavailable to those outside the ‘system’.
Death row prisoners are largely poor, uneducated, and from SC, ST and OBC categories or from religious minorities
Studying the occupation of the prisoners at the time of arrest, their occupational history and childhood experiences, the report concludes that 74.1% of the death row prisoners can be described as ‘economically vulnerable.’ The report also finds that 61.6% of the prisoners hadn’t completed a secondary school education (23% never went to school at all). A full 76% are from a backward class (SC, ST and OBC) or religious minority. It is also interesting to note that the percentage of prisoners in backward classes goes up as you go higher up the judicial process. The authors of the report stress that there is nothing to suggest a causal link between their social, economic or educational status and the death penalty, or that there is express discrimination, but it does show that ‘the burden of the death penalty falls disproportionately on different marginalised groups.
Very few death row prisoners have good legal representation and a fair chance at putting their case forward
From the pre-trial stage where legal representation is almost non-existent (97% of those who responded said they did not have a lawyer when they were interrogated), and custodial torture is widespread (82.6% spoke of having been tortured in police custody), to the trial itself where the extremely low fees that the prisoners can afford mean scant attention to the case, and little or no engagement with the prisoners (76.7% said they never met their lawyers outside court and the interaction in court was perfunctory; at the High Court, 68.4% never even met their lawyers), the system is set up to prey on the poor and marginalised. Add to this legal-aid lawyers who demand money from the victim’s family, and defence lawyers who connive with the victim’s family, police, prosecutors or the judge and it’s plainly evident that most of these prisoners have not had anything approaching a reasonable chance to make out a defence for themselves.
There are flagrant procedural lapses when the prisoners are in pre-trial custody
Across the Constitution, the Criminal Procedure Code and various judgments of the Supreme Court, safeguards have been set out to ensure that investigation procedures are fair and transparent. These procedures are more honoured in the breach than in the observance. The police regularly fail to inform persons of the grounds of their arrest. In fact, in several instances, the police trick the prisoners into coming along to the police station on some other pretext and are then arrested upon their reaching the police station. In other instances they are told they are being arrested for petty crimes only to later discover that they were arrested for more serious crimes.
Prisoners’ families are not informed about the arrest. Families often learn of the arrest through the media or relatives. Out of 195 families, only 20 state that the police had informed them about the arrest. There are several instances of prisoners being detained in undisclosed locations for days or weeks, where they are tortured, before being formally arrested.
Torture is rampant
The most disturbing segment of the report deals with the torture inflicted on prisoners during the investigation. As mentioned earlier, over 80% of the prisoners who spoke about their experience in custody said that they had been tortured. The report sets out the methods of torture that are commonly used including breaking fingers with pliers, being hung by wires, being forced to drink urine, skin being burnt, needles being inserted into fingernails and so on (the list is considerably longer). The torture is primarily used to extract confessions. Of the prisoners who had confessed to the police, 78.3% admitted to doing so due to torture.
Court proceedings suffer from severe flaws that prejudice a fair trial
From the most basic fact that the accused is often not even present while the trial is going on (only 25.3% of the prisoners said they were present during all the hearings), to the fact that no effort is made to ensure that the accused understands the proceedings, the process of a criminal trial in India, particularly for the poor and those lacking in education, is a cruelly unfair experience. The accused is often at the rear of a courtroom, from where she cannot hear the proceedings between the lawyers and the judge. Many a time, the accused does not speak the language of the trial (for example where the trial is not in her native state, or where it is in English and she does not know English). Add to this the poorly paid and unconcerned lawyers, and the accused often does not understand anything of significance about her own trial.
The judicial process itself suffers from failings. The evidence used to convict death row prisoners is often of dubious strength. Courts often rely on approver evidence, where a co-accused testifies against the accused, or on purely circumstantial evidence (such as the fact that the accused was the person last seen with the victim of a murder). Courts rely on confessions made to magistrates subsequent to torture by the police, and on objects recovered based on confessions made to the police (once again often extracted under torture).
The courts also fail to consider the sentencing aspect of the judgment as distinct from the evaluation of the accused’s guilt and award the death penalty based on the nature of the crime, without considering the potential for reformation or other factors unique to the accused. There is also often tremendous pressure from the local community where a crime has taken place, and prosecutors and judges are not immune to such pressure.
Life as a death row prisoner is a cruel and extreme punishment in itself
The Supreme Court has held that a prisoner can be kept apart from other prisoners only after all her avenues of appeal and remedy are exhausted. But once again this is violated with impunity across the country. Prisoners are treated as death row prisoners as soon as they are convicted (or sometimes even while they are undergoing imprisonment as an undertrial). This is particularly shocking considering that only 4.9% of death sentences are upheld by appellate courts.
Prisoners are often subjected to solitary confinement without a court order (mandatory as per law) and for periods much longer than what the law permits. Prisoners serving death sentences are often prohibited from working, depriving them of their only avenue to be productive while incarcerated. Some of the poorer prisoners who did not receive any money from their family are then forced to do work for other prisoners (such as washing their clothes) to earn the small amounts of money necessary for them to buy essentials like toothpaste and soap from the prison store.
There are several instances of violence against the prisoners, both by fellow prisoners and prison authorities, particularly those prisoners who have been sentenced to death for sexual or terror offences.
Needless to say, conditions of incarceration are abysmal and even basic hygiene and medical facilities are often denied to prisoners. Colonial-era prison manuals and an uncaring prison administration mean prisoners are often deprived of food and sleep.
Reading this report is an emotionally wrenching experience. The cold statistics and cruel stories reveal a system of policing and criminal justice that is fundamentally unsuited to the ‘world’s largest democracy’. Deep deficiencies in every aspect of the system mean that delivery of justice and fair treatment is little more than a mirage, particularly for the poor or uneducated.
The utter lack of respect for human rights and civil liberties is a matter of urgent concern, and wholesale police and judicial reform should be a top priority for any government in India. Irrespective of one’s moral or philosophical view on the death penalty, it would be very hard to champion its continued existence in India, where the procedures that lead up it are so profoundly unjust.