Of the hundreds of people whom trial courts have sentenced to death from 2000, only three men — Afzal Guru, Ajmal Kasab, and Yakub Memon — have been executed. Why does the state condemn so many people to the gallows, only to decide, years later, that they do not deserve to die? And what does the situation tell us about the administration of justice in capital cases?
A new report released Friday points to a broken system. The report, by the Centre on the Death Penalty, a team of researchers at the National Law University in Delhi, documents crippling delays, rampant civil rights violations, ineffective lawyers, and trial courts that liberally impose capital punishment.
After combing through prison lists, judgments, and news reports, the researchers found that trial courts sentenced 1,810 people to death between 2000 and 2014. But as these cases wound their way through appeals, more than 95 percent of them were taken off death row.
“The fact that barely 5% of death sentences awarded by trial courts survive appellate scrutiny shows just how trigger-happy and heavy-handed trials courts are in sentencing people to death,” said Yug Chaudhry, a criminal lawyer defending several people on death row.
About a quarter of those sentenced to death by trial courts — 443 — were later acquitted by one of the appellate courts: the High Courts or the Supreme Court.
Many prisoners spent years on death row, which can involve being kept in solitary confinement or otherwise separated from the general prison population, before being acquitted.
“To go from the death penalty to acquittal is just crazy,” said Anup Surendranath, the director of the centre and lead author of the report. “It shows... just how badly the process has gone.”
The report found that their convictions were often based on circumstantial evidence or dubious, even forced, confessions. Appellate courts had little choice but to overturn them.
“You have an extremely non-modern police force,” said Surendranath. “You don't have scientific tools of investigation. Forensics are in a terrible shape in this country. Then how do the police achieve convictions?”
Of the 270 death row inmates who spoke of their time in police custody, 216 reported being tortured. Some said they were immersed in boiling water, others said they were penetrated with rods and glass bottles, while still others said they were electrocuted, hung by wires or had their fingers broken with pliers.
“The extent and the nature of torture really took me by surprise,” Surendranath said.
Scientific studies have shown that false confessions induced by police are among the leading causes of wrongful convictions. Yet 72 of the 92 prisoners who said they confessed in custody said they were tortured by police.
Though a confession made to the police is not admissible in court, prosecutors are allowed to present evidence — a murder weapon, for instance, or soiled clothes — that was recovered based on that confession. Higher courts regularly find serious problems in these “recoveries” — either the evidence doesn't add up or investigating officers are accused of altering or entirely fabricating it.
The researchers also documented less violent police abuses. Most prisoners said they were not told why they had been arrested, were not produced before a magistrate within 24 hours, and did not have a lawyer during interrogation, rendering them even more vulnerable to police abuses. All of these are rights guaranteed by the Constitution.
Even police who play by the rules can make mistakes. According to former Delhi Police Commissioner Neeraj Kumar, police investigators usually receive little or no support from prosecutors or supervisors.
“The majority of cases are practically a one-man show by the investigating officer,” Kumar said. “Does the investigating officer get support from the prosecutors? Does he get guidance from any legal minds? Does he get any meaningful supervisory tips from his bosses? The answer is, generally not.”
In addition to those acquitted, 975 prisoners — more than half of the those sentenced to death between 2000 and 2014 — had their death sentences commuted on appeal.
In some of these cases, the appellate courts found that trial court judges had failed to consider “mitigating factors,” such as a prisoner's age or potential to reform. Judges are supposed to consider such factors before deciding whether a prisoner, even one found guilty of a horrific crime, deserves a death sentence.
Yet trial court judges, overburdened by heavy caseloads, often lack the time to consider legal nuances, said Bilal Nazki, former Chief Justice of the Orissa High Court. Instead, they “play safe” by imposing a death sentence and letting the High Court decide on its merits.
In other cases, the appellate courts disagreed with trial court judges' interpretation of what sort of crimes constitute “the rarest of rare,” a legal standard by which judges are supposed to decide who gets the death penalty and who does not. “The rarest of rare category is so deeply subjective that it is not amenable to judicially manageable standards,” Chaudhry said.
Trial court judges are also likely to impose harsher sentences because of local pressure and media scrutiny. “Trial court judges are closest to what are often very heinous incidents, and they are likely to be very deeply affected,” Chaudhry said.
Nazki added that there might even be “some pride in giving the death sentence” in high-profile trials. “I know of some instances where they pronounced the death penalty and then they gave a party in the evening.”
If they have a bad lawyer, yes. And most people on death row cannot afford good lawyers.
One conclusion emerges from the report above all others, both amplifying and helping to explain the scale of the injustice: most people on death row are very poor.
“Before this, we just had an intuition about the kind of people we were sentencing to death in India,” said Shreya Rastogi, deputy director of the centre and assistant author of the report.
But after interviewing hundreds of death row prisoners and their families, Rastogi and her team now have facts. Most of those on death row — nearly three-fourths — were unemployed or low-wage workers who owned no or very little land. This, in turn, affected their fate in the criminal justice system.
Poorer families, for instance, are less likely to spend on bail, expert witnesses or even lawyers. Of the prisoners who spoke about their lawyers, more than 70 percent said their lawyers never met them outside of court, and hardly spoke with them in court.
One man — like all prisoners he was granted anonymity by the researchers in order to speak freely — said that when he asked about the progress of his case, his lawyer told him to “mind his own business.”
“The courts, time and again, have said even a condemned man has rights until his last breath.”
The poorest of the prisoners had legal aid lawyers, who are usually overworked and underpaid. Chaudhry has found that legal aid lawyers in trial courts typically earn between 1,000 and 2,000 rupees per case, far less than the prosecutors whom they oppose at trial.
“If that's how much we pay legal aid lawyers, how do we expect them to go through voluminous files, make copies, get typed written submissions, and so on?” Chaudhry said. “They don't have the facilities or money to do this. Consequently, most death row convicts on legal aid get very poor legal representation.”
“If you ask any prisoner, ‘Why are you here?’, he says, ‘I am innocent, I never committed any crime,’” said Kumar, who served as Director General of Prisons before his stint as Delhi Police Commissioner. “One can't come to the conclusion that every inmate in there is innocent based on their statements.”
Many prisoners on death row — perhaps even most of them — have committed brutal crimes. The report, in fact, does not address their guilt or innocence. Rather, it questions whether the system, such as it is, can effectively deliver justice. The verdict is devastating.
“If we are supposed to hold fair trials, and the right to life is very dear to us, then denying prisoners those rights throughout the process is something we should think about,” Rastogi said. “The courts, time and again, have said even a condemned man has rights until his last breath.”