Representative image. Credit: Patrick Feller/Flickr CC BY 2.0
In May 2013, a group of people based out of the National Law University in Delhi decided to try and fill a big data gap in India – information on the death penalty and death row prisoners. Their aim was to conduct a research project that would look at the socio-economic background of death row prisoners, their experiences in the criminal justice system, what their families went through and so on. A comprehensive empirical base for talking about the death penalty in India.
Led by Anup Surendranath, a teacher at NLUD, the project tied up with the National Legal Services Authority, making it easier for them to gain access to the death row prisoners. In spite of that, there was one state that gave them no access at all and another that did not let them meet a section of prisoners. Though the project hired a few lawyers and legal researchers, a majority of those doing the fieldwork and data entry were student volunteers from NLUD. In the two and a half years that a project lasted, close to 90 student researchers worked on it at different points in time. Some of them stayed for close to the entire period.
For most of these students, these experiences were different from ones they’d ever had before. Not only did they go to various prisons, speaking with prisoners who had been sentenced to death and faced perhaps the harshest side of the criminal justice system, they had also travelled to extremely remote locations across the country looking for the families of the prisoners, speaking to them about their experiences. About a week before the release of the report that contains all their work, they sat down with The Wire to talk about their experiences, what made them keep working with project and what they had learnt about India’s criminal justice system.
“(The students) have given up on a lot of their internships for this project. Sticking with the same thing for so long is very rare among competitive law school students, because it’s still only one line on your CV – whether you worked for 24 months or two,” Surendranath said, smiling at the student researchers present in the room.
Research experiences and stories from the fieldwork
“I joined the project almost as soon as I joined college,” said Gale Andrews, a third year student who worked with the project for two-and-a-half years. “Since we were just starting out, it seemed like a really exciting thing to do, and I think Anup sold it very well.”
“There is this one family I keep taking about. It was a completely remote area, a tiny mud house with a thatched roof. I had met the prisoner about a week before that and he was two years older than me. He seemed like a sweet, friendly guy. I remember that I was taking notes during his interview, translating from Hindi to English simultaneously. When we asked him how much he had studied, he said proudly that he could write his name. When we asked if he could write it in English, he said ‘No, I’m not that good yet, I can only write it in Hindi’. The idea that he was two years older than me and he’s so proud of just writing his name – whereas it didn’t even occur to me that it’s so natural for me to be so literate,” Andrews said. “When I went and met the family, the thing that struck me was when we asked them for the lawyer’s contact details. This was a question we always asked. They pointed to the wall – they’d written lawyers number in chalk because they don’t keep paper or a pen at home. They also don’t have a telephone; they just use the village phone. Just seeing how disconnected they were – they didn’t know anything about the case, they don’t have the money to visit the prisoner. They didn’t even know what the case was about, they only learnt things from rumours in the neighbourhood. It was impossible to get information from them for the project because they’re so alienated from everything, they had no access to information. It just hits you then how unfair things are when they play out.”
“For me, that’s why I stayed on with the project,” she added, explaining her two-and-a-half-year stint with this project instead of going for other internships. “Every time it kills you that you’re staying up till 2 am filling up a sheet, you think okay, you’re filling up this sheet because eventually it will come out – and that’s what they wanted, they wanted their stories to come out. So what kept me going was knowing that we were the only ones willing to listen to them, and for them that was so valuable.”
Some of the students had trouble explaining to their parents why they wanted to travel across the country, meeting not only death row prisoners in jails but also their families, spread across states. “We’re in the same batch, but I didn’t join the project the same time as Gale did,” said Jagata Krishna Swaminathan. “I joined it later because my parents were wary of sending me off into different parts of the country. I’m from Bangalore and at one point the project was look for Kannada speakers to do the interviews in Karnataka. That’s when my parents agreed, because they said ‘Okay, Karnataka we know’.”
“I don’t think I’ve ever worked this much for anything else in my life, and if you ask me I don’t think I could give you a clear answer,” Swaminathan added. “I guess during the process you realise that it’s important to them and no one else is listening. How do you just ignore that? It’s a huge sense of responsibility.”
“I think it’s fair to say that even though we remember the entire experience, everyone has that one story that you carry with you. For me it was to do with a female death row prisoner,” she said, remembering the case of a prisoner she met just after the landmark Shatrugan Chauhan judgment. Before this judgment, death row prisoners were kept in separate barracks. “For a female prisoner, what being kept in a separate barrack translates into is basically one or two women being completely isolated from everyone else, unlike the men’s death row barracks in the state, which had about 30-35 prisoners. The isolation that the prisoner we met felt was then far greater. I also met her husband on death row and he was talking about how he was only allowed to meet her once in every 15 days. She didn’t really have much contact with people, so every time he met her he felt that she was deteriorating, that he could just see her giving up slowly. When I went in to meet her, she was eating breakfast so I was waiting for her to finish. While waiting I was talking to other people there – some of the prisoners and the prison guard. The guard pointed to this dark room at the very end of a hall, saying that’s where she had to stay before, though now she’s is allowed to stay with the others.”
“The first prisoner interview I did was someone in solitary confinement,” said Chinmay Konjia, relating the experience that shocked him most. “It was quite shocking. Our proximity to the prisoner was such that the person was inside the cell and we were standing outside. It was horrific. People had told us about certain other states and the prison authorities being extremely cooperative – letting the prisoners out so that they could sit down and talk face to face. I was absolutely not prepared for something like this. This was also the first female prisoner that Anup interviewed. For solitary confinement, you’re taken in through doors after doors. She was allowed to leave their rooms for about 15 minutes a day, and looking at the size of their room that was just unimaginable for me. Everything from eating to going to the toilet happened within that room. Even when you go out for those 15 minutes, there is nobody except the prison guards. Such things really got to me.”
“Of course the interviews went well despite us not being prepared for everything that we saw, because people want to share their stories. Later we met the husband of this prisoner, who was in the male solitary confinement. He explained to us how we wouldn’t be able to comprehend their lifestyle – from small things like mosquitoes in the jail to things like they can’t be given thick blankets, because it’s too hot, but they can’t be given given thin blankets, because then there’s a danger of them hanging themselves. It was all so surreal. Every time the people in solitary confinement would hear even a small thing like a lock being turned, they think today’s the day that everything is going to come down. These things were extremely tough, at least for me,” he added.
“Also, for some of the prisoners we met, the number of years that they had spent inside the jail was unthinkable. People often use the 5% number to argue for the death penalty, saying it’s really the rarest of rare cases,” he continued, referring to the fact that less than 5% of people sentenced to death by trial courts are finally sentenced to death by the Supreme Court. “What you are forgetting in this whole debate is the 15-20 years that a person has spent on death row. You could see the impact of those years once you meet these prisoners. It’s not the same thing those in life imprisonment go through. The minute you are accused the rules in prison change for you. There’ll be solitary confinement, shorter meeting period, etc. Everything changes because you’re on death row. You’re not even allowed to work, meaning that the little bit of money you could send to your family is also gone. Families told us about how they’ve had to keep living off debt, since one of their only earning members had been locked up. But even then, these families somehow get you a bottle of Thums Up to drink.”
The sensitivities of family interviews
Given what they wanted to talk about, interviews with prisoners’ families also had to be dealt with extremely carefully. The researchers did not use a set survey-like questionnaire. Though they had guidelines, they were encouraged to allow the conversation to progress naturally. “When we went out to talk to people, we were very aware that the fact that someone from their family has been sentenced to death will probably be constantly playing on their minds. So the first effort was always to try and make them comfortable with us, talking to them a little, trying to get to know them, introducing ourselves. If you just go question by question, like a survey, not only are they less comfortable, I think you also give up on a lot of valuable information,” said Lakshya Gupta. “In a way I think we were well-placed to conduct these interviews – we’re just law students, so harmless I guess, and people are more comfortable talking.”
Surendranath agreed that allowing families and prisoners to speak naturally was very important. “They often wanted to talk about things that weren’t relevant to our project, like how they didn’t do it, for example. This was never a question, but since it was the first time they were getting to talk about it, prisoners wanted to express themselves. We understood that we should let them talk, not say things like ‘we don’t want to listen to this, it’s not why we’re here’. We learnt to slowly guide them into conversations you do want to have. I think emotionally it was a huge challenge to explain the utility of any of this, or why they should give you their time. I guess a lot of that went into making this permanent – just confronting that repeatedly,” he said, referring to the full-time Centre on the Death Penalty that emerged out of the project, working on litigation as well as research.
Students also talked about the dual risk while preparing for family interviews – if you did all the background research, there was the chance you could form a bias on the case and perhaps against the family, whether you wanted to or not. But go in blind, and you can come across as completely ignorant, as if you haven’t done your homework.
Difficult to be prepared for everything
“I think in some ways we were really unprepared,” Surendranath added. “I don’t think any of us could envisage the intensity of some of the reactions from families who didn’t want to talk to us. The sensitivities around them having moved because of the case – we predicted it to some extent, that families might have moved, there might be stigma. You can’t just go around asking neighbours, ‘Jinke bete ko phaansi ki saza mili hai woh kahaan milenge? (Where is the family whose son has been sentenced to death)’. There are a lot of sensitive things to care of.”
Shreya Rastogi, a legal researcher with the project and now a litigator with the centre, echoed Surendranath’s sentiments on some things being impossible to prepare for. “Sometimes it was something as simple as the fact that you would expect, at least for family interviews, that you’re going to into someone’s house, to sit down and have a conversation. But then you realise the situation in which some of these families are placed. Like for instance, this one family interview I was a part of, the family had been thrown out of their house because of the kind of the media pressure that was built around that case. They were basically living on the street outside the jail. There’s a culpability that’s attached to the family as well – they weren’t even allowed to gather their things. Let alone if the prisoner is guilty, the family is facing the punishment too. This is in Bombay and we did the interview in July, so if you know Bombay at all you know that it’s always pouring. So we couldn’t even find a dry place where we could sit down and talk to them. Those are the kinds of situations where you find yourself doing these interviews and then you’re supposed to cover their socio-economic circumstances, which is staring at you in the face while you do the interview. The part of that interview that will really stick with me was that even though they had absolutely nothing on them, at the end of the interview they offered if they could take me to the nearest chaiwallah and buy me some tea. How can you have nothing and still have something to offer?”
Each case and each state was also extremely different, making it harder for the team to know what to expect.
Thinking about the criminal justice system
Going through this process, students felt they had a new perspective on the criminal justice system, the people in it and cases they read.
“I want to talk about the jail and police authorities. There are usually two ways we speak about them, two narratives, both of which are very black and white. One is about how they’re great, how they’re authorities so they must be respected, all of that. Not criticising them at all. The other is to see them as adversaries, imposing an oppressive system. While there’s merit to both, one thing that struck me is that they’re just cogs in a much larger oppressive system” said Pawani Mathur. “I think we forget that they’re also human beings who are also affected by this process, though they may not show it. There were jailors that we met who were extremely sympathetic. One of the cases in Chhattisgarh, for instance, the jailer would call me up voluntarily and ask, ‘What’s happening in the case? Tell me because I want to tell him.’ That was very important for me, to appreciate the grey in all these situations. They also say things like, ‘He’s not that bad, there’s no need to hang him. But we have to do what we have to do’.”
Mathur also talked about an encounter with the legal system that left her surprised. “We discovered some new facts on a case during out research process, which weren’t on record during the trial. It was about the age of the accused. So then Anup sent us back looking for proof, we did some more research. We collected all their school certificates, got it all verified by the sarpanch. We did so much groundwork, as a student I didn’t even know all of that was necessary before you could file a case. We didn’t have any litigators at that time so we gave the case to somebody outside. One thing that really struck me was that when the case went before a court, some of us were standing at the back when the judgment was to be announced. We couldn’t properly hear what was going on. Then suddenly there was a commotion and everyone walked out. We had no idea what happened, so we went outside and asked the lawyers. He told us ‘Dismiss ho gaya (It got dismissed)’. And we didn’t even hear it. Before all the commotion happened, one of the judges at the bench made a reference to a Sanskrit shlok (he only gave the meaning, not the shlok itself). And the meaning was something like if a king doesn’t ensure adequate punishment, then the sin of the offender is passed onto him. And I thought okay, it’s problematic, but okay. But this was before I knew he’d dismissed the case and was then saying it. In my head it was just that all of that work, that journey, all of that came down to one Sanskrit shlok. It really showed how the judge views himself, and how he viewed the justice system and his position in it.”
“I think working on the project has had an impact on how I read cases,” added another student researcher, Devina Malaviya. “Because earlier I used to read cases as very matter of fact documents. But after going through this entire process and doing this analysis, you start viewing cases very differently. You realise its not just about that one case, there’s probably a back story to it that hasn’t been mentioned here. Its about the family of the accused as well, and of course the victim. Its not just ‘X vs. State of Maharashtra’, that X has a life, a backstory.”
Seeing the accused and how their case is handled is something others took away from the project as well. “For me, the impact it’s had is what can we do different as lawyers or law students,” said Swaminathan. “You’re seeing how no one is paying attention to the accused, one of the parties present with the biggest ramifications. But the focus is always on other things. The prisoner always looks so lost about everything. They don’t know what’s happening, what they’re supposed to do. They’re supposed to plead with the judge, saying my lawyer isn’t here, I don’t have their number. So many of the prisoners have told us they had no idea what happened in courts. And nobody explains anything to them.”
“So when I did my internship elsewhere, with a lawyer, in my head I would keep going through the lawyer’s questionnaire for the project that asked did you do X, Y and Z, and the answer was almost always no,” added Andrews. “It plays in my mind, how much is the lawyer actually doing for the accused, how much are they talking to them? That one rare lawyer, who may not be very senior, but you can see is not ignoring the accused, actually interacting, is the one you know you want to work with. I just can’t get over the image of the prisoner saying I don’t know anything that’s happening in my case.”
The intricacies of how cases are handled was also brought into question. “Another thing you start to really question is the quality of evidence,” said Rastogi. “The evidence used to sentence people to death is largely circumstantial, to use that to sentence people to death is so bizarre. They have a witness who isn’t very sure, who just identified a figure. Or when you meet the prisoner they tell you they were made to sign blank sheets of paper and then stories written on them on the basis of which the weapon is apparently discovered. You have that evidence along with the medical evidence, and the decal evidence in some cases is also just post mortems with signs of rape, maybe some clothes with blood recovered that could be the accused’s. And that’s about it. So one of the most baffling things is that there is so much side-stepping in the system. Even if you might have the right person, the investigation is so flawed. And that procedure goes through our courts, unchallenged.”
“I think one assumption people seem to have is that the accused is equally placed with the state, without taking into account instances of torture, etc. You can’t expect prisoners to say ‘I won’t sign this document because it doesn’t exactly match what I said’. There’s also almost blind reliance on ‘expert evidence’. Sometimes with blood stains all they do is match the blood group – which could belong to a fourth of the population – and call that expert evidence,” added student researchers, in agreement with Rastogi.
“The more you look at this system and hear the prisoners’ stories, it just seems like a weird, absurd, dark comedy,” said Maitreyi Misra, head of the research unit at the Centre on the Death Penalty. “With DNA evidence, judges are just so taken in because its some new-fangled science, that must be true because its science. You’re explaining things to prisoners in a language they don’t know. Nobody is understanding each other, but somehow they all think they’re in it together.”
The Death Penalty India Report will be released on May 6.