The vague and subjective nature of the death-penalty criteria and the complexity of such cases render inaccessibility to high-quality lawyers potentially fatal. Usually the records in death penalty cases are voluminous, and trials last for six to nine months. In most places (except Delhi), legal-aid lawyers are paid Rs.500 to Rs.2,000 for a death penalty case in the trial court, which is about the same for proceedings in High Courts, and Rs.4,000 for a Supreme Court appeal. These fees, which have been stagnant for decades, will not cover conveyance and miscellaneous expenses.
Legal-aid rules require that senior lawyers be appointed for all possible death penalty cases, but this is rarely done. Raw, inexperienced juniors are roped in for cases that would make seniors baulk. However, in the case of Mohammed Ajmal Amir Kasab, the lone surviving terrorist of the 26/11 attack on Mumbai, where international attention made due process and the appearance of justice crucial, these rules were suddenly discovered and applied vigorously. Consequently, the legal-aid fees paid to Kasabs lawyers per day exceeded the total legal-aid remuneration payable for entire death penalty cases. Not surprisingly, appellate courts remand such cases back to trial courts because the prisoner was not defended in any meaningful way. But more such cases fall through the cracks.
In the nine years from January 1, 2000, to December 31, 2009, the Supreme Court gave the death sentence in 30 cases. At least 14 of them were defended on legal aid, and many more had legal-aid lawyers at the earlier stages. Twelve of the 14 prisoners wrongly sentenced to death in the Ravji cases, including Ravji himself, who has been executed, were represented on legal aid.
In the U.S., where legal aid is more organised and better remunerated than in India, Justice Ruth Ginsburg of the U.S. Supreme Court observed that she had never seen a death case coming in appeal to the Supreme Court where the defendant was well represented at the trial. It is hardly surprising, therefore, that most cases of miscarriage of justice, wrongful convictions and executions have been defended at some stage on legal aid. Prisoners facing the death sentence who are handicapped by poverty are doomed ab initio by a system that pays legal-aid lawyers a pittance for their work.
The Constitution has promised citizens equality before the law and protection from arbitrariness, which means that their cases will be treated alike regardless of their financial capacity. Courts are required to uphold this promise for it is the bedrock of judicial legitimacy. Since there is no consistent and fair way to award this death penalty, it must be abolished.Yug Mohit Chaudhry