What is your take on the death penalty? In your opinion is there any penological justification for awarding the death penalty?
I don’t believe that any individual is so purely and completely responsible for the crimes he commits that we can justify taking his or her life. However, it certainly doesn’t mean that society can completely wash its hands off individuals committing crimes.
Consider the theory of deterrence, where my life is taken to send a message to several others rather than for the crime I’ve committed. This is a purely instrumental view of life. It doesn’t respect my life for life’s sake. The theory also presumes that as individuals when we commit crimes we exist in a rational space. When we argue deterrence the commission of crime becomes a logical balancing act where we weigh the risks of being punished with death. But crime is a complicated social phenomenon and we must recognize it as such.
In retentionist countries, the death penalty is used as a political tool. They use it as an excuse not to do the more difficult things. Better policing, investing in modern investigation capabilities and through that achieving better rates of conviction, meaningful, education, relevant measures at influencing social attitudes are some of the difficult things that governments are not interested in.
You seem to be leaning towards a rehabilitative criminal justice system.
Yes, I do believe that every individual can be rehabilitated irrespective of what they’ve done. Individuals aren't just individuals by themselves. They are a creation of society. It is tragic that the legal system reduces every individual who commits a crime to just that crime. A student caught cheating during an exam isn’t simply a student who cheats and would have many other facets to her.
If you see the recent Sriharan judgment, the Supreme Court has taken the position that appellate courts can imprison people without the possibility of release. In cases of life sentence States have the power to reconsider the sentence at various points of the sentence. But now the Court has said that in crimes where the death penalty is a possibility in law, the convict can stay in prison for life without being considered for remission. The European Court of Human Rights also dealt with the same issues and they decided that though a prisoner does not have the ‘right’ to be released, she certainly has the right to have her sentence reconsidered periodically. As someone who works on issues concerning the death penalty, I don’t think this is a victory. The problem is that you really can’t say that life imprisonment without the possibility of release is in any way less cruel. Qualitatively, morally and philosophically it is difficult to see any relevant difference.
What are your views on the 262nd Law Commission Report? Do you agree with the Commission’s suggestion to reserve death penalty only for terrorists?
The recommendation of the Law Commission addresses the wrong end of the problem. For about 200 pages there is an excellent analysis of all things wrong with the death penalty and criminal justice system in India but suddenly there is an exception carved out with scant reasoning.
Firstly, while the report recognises problems with the criminal justice system, they fail to acknowledge that these problems exist in trials dealing with terror offences as well. In fact, trials involving terror offences are even more problematic. The Law Commission’s mandate is to make recommendations on the law and not on what is palatable to the political class or the Government.
Secondly, this report has brought back the jurisprudential debate that there is a difference between terrorism and other crimes as far as the death penalty is concerned. This is despite the fact that countries across the world have found the death penalty to be ineffective in fighting terrorism. Britain, at the height of the Northern Irish problem, decided to do away with the death penalty.
My worry is that this suggestion will further entrench death penalty for terrorism as it now has the LCI’s approval. We’re struggling with the legacy of the previous Law Commission report on death penalty, released way back in 1967. The report suggested retention of the death penalty and is repeatedly cited in judgements to justify the same.
To what degree has the political and social pressure within which judges operate in cases of terrorism had a bearing on judgments upholding the death penalty?
It is very difficult to make a causal link of the sort you suggest but I do think there are some glaring inconsistencies in judicial reasoning. Of the 11 people sentenced to death in the Bombay blasts case, the Supreme Court confirmed the death sentence only forYakub Memon on the ground that he was the "mastermind" and "driving force" behind the Bombay blasts while the others were just foot soldiers.
On the other hand, Kasab's conviction was upheld even though he wasn't the "mastermind" and it was evident that he was a foot soldier. You see, there are inherent internal inconsistencies in these narratives. We end up using the death penalty for purely symbolic purposes and it really is difficult to come up with some grand penological justification.
And of course, the judgment of the Supreme Court in confirming the death sentence for Afzal Guru is extremely problematic and much has been written about it.
With respect to the criticism faced by the Court for the rejecting Yakub Memon’s writ petition, many believed that the mercy petition was dealt with too quickly for there to have been any ‘application of mind’, what do you believe is a reasonable amount of time for the ‘application of mind’?
Certainly not less than 24 hours.
The Court rejected the writ seeking time to challenge the rejection of the second mercy petition by stating that people file mercy petitions to buy more time. But the Ministry of Home Affair’s guidelines on this issue clearly states that there can be subsequent mercy petitions and they should be considered it if they raise grounds that were not raised previously. So there is nothing wrong with filling 300 mercy petitions if the 300 mercy petitions raise different issues. For the Court to make the argument that a fresh petition had been filed to buy time they needed to know that the content of the two petitions wasn’t the same.
In Yakub’s case the Court didn’t have access to the first mercy petition which was filed by his brother so they couldn’t have known whether it was different from the second one. In fact, Yakub’s lawyers didn’t have access to the first petition and neither did we. We believe that the petitions weren’t the same because a significant amount of time had lapsed between the first petition and the subsequent one and hence issues of his mental health and solitary confinement could not have been raised.
The Court then questioned why the rejection of the first petition wasn’t challenged even after a year of its rejection. There is good reason for this. Yakub’s curative and review petition were pending at the time of rejection. All these legal options gave him a shot at vacating the conviction itself. The best outcome by challenge of a mercy petition is a commutation. I don’t see how this argument stands when a better remedy remains.
What are some of the direct repercussions of the conflicting approach of the Supreme Court in applying the “rarest of rare” test?
The case of Santosh Bariyar acknowledges that there has been an error in understanding the rarest of rare principle. This has less to do with the subjective nature of the test as opposed to an incorrect understanding the requirements of the test. Then the Court itself identifies a number of judgments that have applied the rarest of rare doctrine incorrectly. Surprisingly, while the logical consequence of this should be commutation some of these convicts continue to be on death row.
Our research on death penalty cases in the last 15 years shows that, for every 100 death sentences that the trial courts hand out, 30% are acquitted at the appellate level, and a further 65% are commuted. 95% of the death penalty cases are handed out incorrectly.
One might say that this shows that the system is working but asking people to live on death row is cruel. Death penalty is not just about the hanging. Rarely do we talk about the experience of living under death row. We might have executed 4 people in 15 years but the nature of the problem is the 1700 people who have been sentenced and made to live under the sentence of death for a significant number of years.
What are we attributing this inconsistency to? Is it a lack of judicial discipline or lack of accountability that needs to be imposed on the judges passing these judgements?
There is a genuine belief that the death penalty serves a purpose. Judges want to send out a message and believe in the deterrent effect it has. They don’t see a problem with that argument.
While Kasab and Memon’s cases received tremendous national attention, a vast majority of death penalty cases don’t. What we forget though, is that in their local contexts these cases are extremely high profile. In fact, it is just as much of a deal as a Kasab or a Memon in those local contexts. When a minor is raped and murdered there is immense pressure on a judge who is placed in that local context in the district. It is obvious that a district judge would be under tremendous pressure. In our experience, judges don’t want to appear soft on crime. They don’t want to be held responsible for letting someone go. So they award the death penalty and leave it to the High Court and the Supreme Court to confirm/reverse the same.
Within the current framework where capital punishment still exists what is the more effective approach towards ensuring that death sentences are not handed out arbitrarily in Trial Courts? Clarity in judgements passed by the higher judiciary or training programs extended to the judges in the lower levels?
You can clarify the law as much as you want. But the point remains that the people who get the death sentence are the poorest, most marginalised with extremely low levels of education and bad legal representation. All these are structural problems and not something the Supreme Court can change. And this is true with every retentionist state. No amount of tweaking or reforms can make it any fairer. As a litigation strategy we may slowly chip away at it, before, ironically, going for the kill. But philosophically I often wonder about the value of smaller victories.
Are the various safeguards in form of appeals and mercy petitions useful in making sure that an arbitrary death sentence can be avoided?
Regardless of how shallow, opaque and ineffective the process of clemency and mercy petitions is and regardless of qualitative concerns about the same, we are failing at deciding who should be on death row in any sensible manner. The fundamental problem is - we don't know who to sentence and this is demonstrated by the abysmal quality of sentencing proceedings.
Can you elaborate on your experience with the death penalty project? In your interactions with death row victims, what stands out in their experience with the criminal justice system?
The death penalty research project sought to interview prisoners on death row, their families, lawyers etc. The project documented their experience with judges, during trials and the criminal justice system as a whole. We did this to better understand the socio-economic profile of death row convicts in India.
Initially, we were very clear that we weren’t offering any legal assistance. However, irrespective of how many times we tried telling prisoners and their families that, there was always that expectation. And quite rightly so – they saw us as individuals who had access to many things that could be of great help in their cases and there was no escaping that. And even though we knew that we would face cases of terrible injustice we were never quite ready for the intensity of the experience.
When we realised we couldn’t just sit on all that we were seeing and hearing, we set up the Death Penalty Litigation Clinic on the basis of our work to provide legal assistance. For now, we are now involved with legal representation of 40 death row prisoners across country.
The one thing that stands out for me is the terrible quality of legal representation. It is amazing how little communication there is between lawyers and prisoners. Prisoners hardly get to meet their lawyers, are rarely explained the case being made out against them or asked for explanation against the evidence being presented against them. This is primarily because these prisoners are poor and can’t afford to pay lawyers enough to incentivize them to work.
This is something we have tried to change in the way we practice. We meet the prisoners we work with often, keep them informed at all times and explain to them their options even if they don’t understand the nuances. We respond to letters from prisoners and encourage them to write to us. We do everything we can to reduce their alienation from the criminal justice system. This model is certainly resource intensive and some might even say the money would be better spent on their case, however it is our belief that the least we can do is keep them informed.
We are very clear that we will not do these cases from a cause perspective, that is, the abolition of the death penalty because that would mean using the prisoners as instruments. As far as possible and we go to a great extent to ensure this, we are guided by what the prisoner wants.
An example of this would be the case of a prisoner whose mercy petition got rejected. We got involved in his case fairly late and when we did we figured he had full blown AIDS. His CD-4 count was so low that it couldn’t have dropped dramatically so quickly. It was apparent that the prison had ignored these symptoms. Any reasonably competent doctor should have recognized his condition
So as far as the cause is concerned it would’ve been a great case to take to the court and argue that terminally ill patients should not be on death row.
So we explained to him that if we won, he might be moved to a hospital where he would be taken care of. He refused and told us of the manner in which he was treated very badly the last time he was taken to a hospital. He said he would rather stay in prison where the other inmates at least bothered to ask about him and visit him once in a while and help him in small ways. He felt he had some dignity in the prison. It's amazing how we view everything, and in this case, the hospital, from our own rational prism.
The case could’ve been a great strategic victory but it wasn’t what the prisoner wanted. We’re there to serve the interest of prisoner and do what they want.
The work that you do must take a heavy emotional and mental toll on everyone involved with the Project and Clinic. How does your experience with the project differ from your experience with the clinic in this respect?
It's funny how we're asked this question very rarely. It is in fact a very crucial aspect of the work we do. This was more so with the project than the clinic.
For the project we worked with 90 students over the course of 2 years. Most of them weren't ready for the harsh realities of the prisoners. The students had never seen this kind of suffering and desperation. They had strict instructions not to offer any help. This too was a great cause of frustration among the researchers. Often researchers felt they were inflicting suffering on the families of convicts by having them relive their experiences. It wasn't easy. 11 students stuck through the entire duration of the project and formed the core of the research project. It is undoubtedly emotionally difficult work. At that point, they weren't aware it would feed into litigation and see the concrete impact of their work. But I am very clear that we managed to deal with the sheer scale of the project only because we worked with students of that age. Their perseverance, rigour and idealism kept us going.
I hope that what we’re doing now gives them a sense of having contributed.
With the clinic, while we are aware that we can’t win all our cases. And unfortunately, in this context, at times not winning means the loss of a life. In this context, Yakub was not easy. There was criticism coming our way for getting involved in ‘defending’ a terrorist. It was very intense. How much ever you prepare yourself and tell yourself that things like that are bound to happen in this line of work,, you are never really ready for it. And once it happens, you keep wondering about your role in it. Did we do everything we could have? Could we have explored another option? But hindsight does not help you deal with some situations and the truth is that you react to what you see.
How can students in NLIU involve themselves?
We often discuss working with NLIU because much of our work happens in M.P. But as of now, the framework is not there. We'd be interested if something robust comes from your end, in fact, it would make things easier for us. But more importantly, the question is not limited to the interest of students. This is extremely sensitive and often controversial work and we need to be sure that the college is willing to take the heat.
Do you plan on opening chapters of your litigation clinic in other National Law Universities?
While a vast majority of our cases are from Madhya Pradesh, most of them are now in the Supreme Court and easily handled from Delhi itself. But yes, we do have plans to move into High Courts because those cases offer us more wriggle room. For example, we can raise a lot more questions concerning the evidence in the High Court than the Supreme Court. So certainly, we’d like to involve people with greater access and knowledge of local conditions. But for now, we have started working backwards – taking up cases of individuals closest to execution.