Legal crusaders

The death penalty litigation clinic provides legal representation and aid to death-row convicts, especially those from the economically and socially backward classes.

Journalists wait outside the Supreme Court to hear the final verdict on Yakub Memon's mercy plea on July 29.

In June 2006, a trial court in Baikunthpur in Chhattisgarh handed out the death penalty to 18-year-old Sonu Sardar on charges of dacoity and murder. Of the gang of five persons who were accused of the crime, one was a juvenile and the other three are still absconding. The fact that Sonu Sardar was only 18 years and two months old when he committed the offence could have served as a mitigating factor to reduce his sentence. But this important fact only came to light in 2014, eight years after he was sentenced by the trial court. A group of student researchers at the Death Penalty Research Project of the National Law University Delhi (NLUD), in collaboration with the National Legal Services Authority, discovered this vital information during a field trip to the panchayat office of Sonu Sardar’s village. The project, conceptualised in June 2013, aimed to collate data about prisoners on death row across States vis-a-vis their level of access to legal representation, experience with the trial courts, life in prison and the socio-economic profile. About 90 student researchers were engaged in this project. Throughout the proceedings in the trial court and later on in the High Court and the Supreme Court, Sonu Sardar’s age was erroneously mentioned as 23. It was only in a review petition filed in the Supreme Court in 2015 that this fact was brought to light.

This is only one of several instances where trial courts mistakenly hand out the death sentence because evidence that could serve as a mitigating factor is not available. The lack of good legal representation at trial courts for the poor impedes access to a fair trial. Lubyanthi Rangarajan, an associate with the NLUD’s death penalty litigation clinic, who had also worked as part of the research project, said: “This is a telling commentary on the state of the criminal justice system. Often, there is a lot of pressure on the trial court judges to be tough on crime, especially sexual offences. The ‘rarest of rare’ principle set out in the landmark Bachan Singh vs State of Punjab judgment in 1980 is still not applied while handing out sentences.” In Bachan Singh vs State of Punjab (1980), the Supreme Court had famously articulated the doctrine of the “rarest of rare cases” for the death penalty. The court said: “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

The data compiled by the death penalty research project on death sentences given out between 2000 and 2015 show that 1,790 people were sentenced to death by the trial courts in this period.

The High Courts commuted the sentence in 55.5 per cent of these cases, and in 27.8 per cent the accused were acquitted. Table 1 gives an overview of how the High Courts dealt with the trial court convictions.

The cases of the remaining prisoners are either pending with the High Courts or the judgments in their cases were not available. Apart from the 212 death sentences confirmed by the High Courts, seven prisoners were given the death sentence during this period.

Of the total 219 prisoners handed out the death sentence by the High Courts, 186 have been decided by the Supreme Court. The cases of the other prisoners are still pending at the Supreme Court. Table 2 gives an overview of these 186 judgments.

The Supreme Court, apart from confirming the death sentences for 59 persons convicted by the High Courts, also awarded the death penalty to six prisoners.

Apart from the trial courts, 23 prisoners were also sentenced during this period by the Terrorist and Disruptive Activities (Prevention) Act (TADA) courts —courts set up under an anti-terrorism law which was in force between 1986 and 1995. Of these, the death sentences of six prisoners were confirmed by the Supreme Court, those of 16 were commuted to life imprisonment, and one person was acquitted.

The findings of the research project highlight the systemic issues that plague the criminal justice system, especially at the trial-court level. “A lot of media attention is focussed on cases of crime, which influences trial court judgments,” said Lubyanthi Rangarajan. Shreya Rastogi, an associate with the NLUD death penalty clinic, who was also a part of this research project, said: “The lack of quality legal representation for the socio-economically backward is a major factor which influences judgments at the trial-court level. In fact, we found out that some of the accused incurred heavy debts as they engaged private lawyers at the trial-court stage as they had minimum access to the legal aid system. It’s only when the case reaches the High Court or the Supreme Court that they are able to access the legal aid system.”

The researchers have also been involved in filing petitions on behalf of death-row convicts. They filed a writ petition in the Bombay High Court in 2014 for Renuka Shinde and Seema Gavit, two sisters on the death row whose mercy petition was rejected by President Pranab Mukherjee in July 2014. They were convicted by the Supreme Court in August 2006 for kidnapping 13 children and the murder of 10 of them. A petition was filed in the Bombay High Court asking for the commutation of the death sentence into life imprisonment on the grounds that there had already been an unreasonable delay of eight years in deciding the mercy petition by the President, which had caused the accused immense emotional and physical agony.

The project also attempted a State-wise analysis of the crimes committed by about 373 prisoners who were on the death row between 2013 and 2015. “Our findings indicate that most death sentences are given out for murder followed by sexual offences in this period,” said Shreya Rastogi. Lubyanthi Rangarajan added: “In the last one and a half years or so the trial courts in Madhya Pradesh have been coming down heavily on persons accused of rape and murder and handing out death sentences.”

It was also observed that there had been a surge in the number of rapid trials being carried out by the trial courts following the horrific incident of the gang rape of a paramedical student in Delhi in 2012. “There are instances of trials as short as eight days and 12 days in Bihar and Madhya Pradesh respectively,” said Shreya Rastogi.

Legal representation to prisoners

The NLUD litigation clinic was started in August 2014 as an initiative to provide legal representation to prisoners on the death row in the light of the fact that a number of them are from economically and socially backward classes. In September 2014, the Supreme Court in Mohammed Arif @ Ashfaq vs the Registrar, the Supreme Court of India and Ors ruled that all review petitions for death sentences should be heard in an open court and not just decided in the judges’ chambers. The court also allowed dismissed review petitions that had not been given an oral hearing earlier to be reopened. Following this judgment, the clinic is attempting to ensure that this legal remedy is available to death-row prisoners.

The clinic intervened recently in a case where a death warrant was issued by the Bijnor district court on Shabnam and Saleem, both accused of conspiring and murdering Shabnam’s family members. The warrant was issued on May 21, barely a week after the Supreme Court had upheld their death sentence. No time was given to the couple to file a petition against the Supreme Court judgment. The clinic filed a writ petition in the Supreme Court on behalf of Shabnam and Saleem. In response to this writ petition, a vacation bench of the apex court comprising Justices U.U. Lalit and A.K. Sikri quashed the death warrants issued in haste by the sessions court judge. The bench said that the mandatory period of 30 days was not given to the convicts to file a review petition challenging the Supreme Court verdict. The court also reiterated the importance of the manner in which death-row executions are conducted as the right to life under Article 21 of the Constitution was available to prisoners on death row as well.

Lubyanthi Rangarajan highlighted the human dimension of such hastily issued death warrants. She said: “Shabnam had a seven-year-old child who was born in the prison. She is her only family. She was forced by the jail authorities to sign the death warrant, which didn’t even specify the date and time of the execution. There is immense agony caused by such a warrant.”

Nishant Gokhale, an associate with the litigation clinic, outlined some of the concerns around death-row convicts that the litigation clinic is attempting to address: “At present, some of the convicts sentenced to death by paramilitary courts do not have safeguards such as an oral public hearing which is available to other death-row prisoners. The mental health of prisoners is also a major area of concern. There are no qualified mental health professionals in most of the jails. Some States do not even provide access to complete medical records of prisoners. In 2014, the Supreme Court in Shatrughan Chauhan & Anr vs Union of India & Ors had stated that the mental health evaluation of death row convicts needs to be carried out on a regular basis. This guideline is hardly followed.”