Death Penalty India Report is a severe indictment of the Judiciary System

May 11, 2016 by  
Filed under newsletter-india

India, May 09, 2016: Since the mere mention of death penalty leads to a heated debate, it must be stated at the outset that the “Death Penalty India Report” is not about the arguments for the abolition (or retention) of the death penalty. The only stand that the authors of the report take is that the death penalty is a qualitatively unique punishment, incomparable to any other punishment, and this is not merely due to its irreversibility.

The report is based on a study of all the death row inmates in Indian prisons, and seeks answers on issues such as the socio-economic profile of the convicts, their experiences with the justice system, the impact on their families, etc. all of which have remained largely unexplored until now.

Published in two volumes, volume one focuses on the empirical analysis providing aggregate data regarding the durations of incarceration, the nature of alleged crimes leading to death sentences, the socio-economic background and the quality of legal assistance. Volume two deals with qualitative aspects based on anecdotal evidence, providing samples of the experiences in custody, trial and the impact on the convicts as well as the ‘collateral damage’ suffered by families.

Harshest punishments for the most vulnerable sections of society
The data on socio economic profile confirms what anyone observing judicial processes would suspect intuitively: the harshest punishment falls largely on the socially backward and the economically poor (around three-fourths of the convicts were found to be economically vulnerable).
That a very small percentage of death sentences awarded by the Sessions Court are confirmed at the end of the judicial process of appeals is well known. But this study brings in focus the horrors of being under the death sentence even if it is commuted at a later stage. The horrors are not only in terms of the mental trauma, but also in terms of the quality of life inside prison. A convict sentenced to death by the Sessions Court is treated merely as a “person awaiting execution” and is, therefore made to suffer solitary confinement, along with the denial of educational and work facilities that he/she may have enjoyed until then. Bringing to the fore the harsh punishment that a convict suffers as a result of being sentenced to death, even though the sentence may never be carried out or overturned may perhaps be the biggest contribution of this study.

The section on legal representation notes the pathetic quality – irrespective of whether it is legal aid or a privately hired-lawyer –in many cases, even to term it “representation” may be misleading. On the impact of death sentences and the role played by various actors, the report takes into consideration the lawyers, judges, as also the media which at times paints the accused as a monster and the community which at times ostracises the family of the convict.

Report shows massive gaps in legal structures
The report may also read as a severe indictment of the entire judicial system. Though it is limited to convicts who have been sentenced to death, the picture that emerges could well apply to the criminal justice system in general. Lawyers who do not even care to meet their client, custodial torture with conniving magistrates, trials where the accused is never presented (he/she is kept in the court lockup instead), judges who – contrary to legal provisions – pass the sentence without a separate hearing, convicts who never receive a copy of the judgement passed on them, or if they do so, not necessarily in a language they understand – the seemingly unending list of violations of every legal safeguard at every step of the judicial process makes for a very depressing reading.

Of the 385 convicts on death row when the study was initiated, the state governments did not allow the research team to interview 17 prisoners. That the state, in spite of the enormous power it holds on the citizens should have such fear of the spoken or written word tells its own story about the insecurity of those in power.

The narratives bring out in clear detail, how the laws and the guidelines of the Supreme Court are flouted with even the Prison Rules of many states going against the SC guidelines! The principles to be followed before awarding the capital punishment as laid out by the Supreme Court in the Bachan Singh judgement continue to be a dead letter for not just the session courts and the high courts, but even for the Supreme Court itself. A blind eye is turned to the convict’s ability to reform with the judicial system viewing the convict as frozen in time at the time of the commission of the offence.

Reading the report, one can almost see two distinct strands, totally unrelated to each other. The first is about the Supreme Court judgements setting legal safeguards for a fair and unprejudiced trial and confining the capital punishment to the rarest of the rare. The other strand is that beyond statements and into the world of reality, where the veneer of justice is stripped off and the true nature of dispensation of punishments masquerading as justice is laid bare. Given the evidence recorded in the report, it should not surprise us if a reader were to reach the conclusion that the judgements relating to fair procedures and the rights of under-trials are merely a mask intended to cover up the lack of any real safeguard or fair procedure.

Advocates of a “strong state” would probably find fault with the report for carrying “one-sided” narratives of convicts. (That we are force fed day in and day out with one-sided narratives from the other side; of the investigating agencies, would perhaps not occur to them.) News-anchors who are never too tired of reminding us during any discussion of a death sentence that it was awarded “after due process”, “after providing all the legal avenues for defence” (almost as a favour) and that the judgement was not awarded by a “kangaroo court” may – if they care to read the report – realize that the real world has no relation with the world of a few selected glitzy soundbytes.

But among the dark clouds, some silver linings can be found. There are a few narratives that reaffirm one’s faith in humanity. Instances are recorded where an undertrial’s family receives support from the community, where solidarity among the prisoners makes life somewhat bearable, and even cases where the prison authorities co-operate towards an effort for a more humane system.

By exposing the crisis in the criminal justice system, the report (although limited to the death penalty) cries out for urgent reform. On the question of the death penalty, it brings the discussion out of the realm of philosophical questions on the right of the state to take human life (which are no doubt important) into the world of harsh reality, for as the report concludes “those inhabiting worlds locked away from our sights and minds, within high impenetrable walls, have stories to tell that ask damning questions of us.”
But, are those in positions of influence ready to face the “damning questions”?

The Death Penalty India Report: National Law University, Delhi is available in print for Rs 800 (Set of two volumes). It is also available in PDF format for free here.

– tcn

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