Prisons in India: Defending the Rights of Death Row Prisoners

Saumitra Mohan

The constitutionality of the death sentence was last upheld in May 1980 by the Supreme Court. In the said judgement, the apex court ruled that the death penalty did not infringe upon the right to life as guaranteed by Article 21 of the Indian Constitution. However, the same should be imposed only in the rarest of the rare cases. Surprisingly, most prisoners sentenced to death in India are eventually not executed. Less than 5 per cent of those sentenced to death by Indian trial courts have actually been executed. In most of the cases, following appeals, their death sentences are commuted by the higher courts.

Researchers at National Law University (NLU), Delhi, in a first ever comprehensive study of the socio-economic profile of prisoners serving death sentence in our jails, have identified many problem areas in the administration of capital punishment in India which warrants urgent attention. The said Death Penalty Research Project bases its findings on the one-to-one interviews of 385 prisoners on death row. From July 2013 to January 2015, the project team interviewed all prisoners and their families to comprehend the sociology and psychology of the death penalty in this country. The consequent findings suggest that the rights of these prisoners are often compromised by default than by to purposeful discrimination.

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. The project has brought forth a rich resource for a close inspection of the administration of the death penalty in India. 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. 

Project Findings

With regard to the right of being present at one’s own trial for the purpose of defence, 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 189 prisoners, 169 did not have a lawyer. Again, although anyone being arrested should be informed about the reason for the arrest, 136 prisoners alleged that they were taken away to sign papers and were never allowed to go home again. Moreover, 166 prisoners were allegedly not produced before a Magistrate within 24 hours of the arrest, as is mandatory. Weeks and months passed before they were so produced and sometimes the arrest was recorded only after this procedure. The interim period was often spent in torture; one woman even suffered a miscarriage.

One of the death row prisoners said he would prefer being killed than being tortured every day. Of 92 prisoners who had confessed in police custody, 72 claimed to have made statements under alleged torture. Death row prisoners were often kept locked while the trial proceeded, and 2 were so far removed from the stand that they followed nothing of their own trial; as the report reiterates, “the very architecture of several courts often prevents any real chance of the accused participating in their own trial”. The accused are often confined to the back of the courtroom while proceedings between the judge and the lawyers take place in the front. It is notable that everyone charged with a crime has the right to an interpreter if she/he does not understand the language used in court, and to translated documents. However 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).

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 are routinely dishonored. 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 said their lawyers did not discuss case details with them. Almost 77 percent never met their lawyers outside court, and the interaction inside the court was perfunctory. Many of the prisoners preferred engaging private lawyers notwithstanding their economic vulnerability because of the putative incompetence of the underpaid legal aid lawyers. The higher the courts, the lesser the information prisoners had about their cases, often finding out about trial developments through prison authorities or media reports, though this dearth of information was not limited to death row prisoners alone. One only hopes that the report findings shall enable us to secure the rights of death row prisoners in a better way.