Prison administration is integral to our justice delivery system which, many feel, calls for an urgent review. In India, the system has been unchanged since its inception though a change in nomenclature has been effected. Our prisons are no longer called ‘jails’ and have been rechristened as correctional homes in keeping with the changed ethos. Although the prison infrastructure has improved drastically over the years, we still have a long way to go as far as treatment of the inmates is concerned. A recent study titled “The Death Penalty Research Project” doesn’t inspire optimism. Researchers at Delhi’s National Law University (NLU) in a comprehensive study of the socio-economic profile of prisoners on death row, have found that most of them belong to economically vulnerable sections, backward communities and religious minority groups. Prison administration contends with fundamental flaws.

The death penalty is aimed at systemic marginalization of prisoners from vulnerable backgrounds. Over half of those who have been sentenced to death had worked in the unorganised sector as auto-drivers, brick kiln labourers, street vendors, manual scavengers, domestic and construction workers. About 19 per cent of those on death row had only attended primary school. The prisoners were disadvantaged on two counts; nine out of ten who had never attended a school were also economically vulnerable. This is important because a prisoner’s economic status and level of education directly affects his ability to effectively participate in the criminal justice system and thus secure a fair trial.

Delineating their socio-economic background, the report noted that more than 80 per cent of the prisoners facing capital punishment never completed their schooling and nearly half of them had started working before they became major. Moreover, around 25 per cent of the convicts were juveniles between the ages of 18 and 21 or above 60 years when the crime was committed. Among those facing death penalty, Dalits and tribals constituted 24.5 per cent while over 20 per cent belonged to religious minorities.

Indians belonging to the economically backward and vulnerable sections have found it difficult to bear the burden imposed by our criminal justice system while handing out death sentences. The penalty can disproportionately affect those who have the least capabilities to negotiate our criminal justice system. As regards the right to be present at one’s own trial to defend oneself, only one out of the four interviewed had attended all the hearings.

Some prisoners would merely be taken to the court premises by the police and then confined to a lock-up without ever being produced in the courtroom. Out of 189 prisoners, 169 did not have a lawyer.

According to rules, a person who is arrested has to be informed about the reason for the arrest. However, 136 prisoners said they were taken away to ‘sign papers’ and were never allowed to go home again. Besides, 166 prisoners were not produced before a Magistrate within 24 hours of the arrest as is mandatory.

Weeks and months passed before they were presented in court. As often as not, it was only then that the arrest was recorded. They were often tortured during the interim period. Out of 92 prisoners who had confessed in police custody, 72 had made statements under torture.

Death-row prisoners were often kept locked while the trial proceeded to ensure that they would not be in a position to follow the proceedings of the trial. Even when prisoners were present in court, the report says, “the very architecture of several trial courts often prevents any real chance of the accused participating in their own trial.”

The accused were often confined to the rear of the courtroom while proceedings between the judge and the lawyers took place in the front. A person charged with a crime has the right to an interpreter and to translated documents if he or she does not understand the language used in court. But this requirement is seldom met. Over half the prisoners interviewed said they did not understand the proceedings at all either because of the obstructive court architecture or the language used (often English).

The accused has the right to challenge evidence produced against them. In India, trial courts can question the accused directly at any stage, and the Supreme Court has ruled that the accused persons must be questioned separately about every material circumstance to be used against them, in a form they can understand.

The study found that these provisions were routinely dishonoured. Over 60 per cent of the prisoners interviewed said they were only asked to give yes/no responses during their trials, with no meaningful opportunity to explain themselves. Seven out of ten prisoners complained that their lawyers did not discuss case details with them.

Almost 77 per cent never met their lawyers outside court, and the interaction inside the court was perfunctory. Many of the prisoners preferred to engage private lawyers despite the economic handicap because of the putative incompetence of the underpaid legal aid lawyers. Higher the courts, lesser the information prisoners receive about their cases. It is not just the death-row prisoners who have to contend with such violation of rules. There is still no exhaustive list of offences punishable by death. 59 sections in 18 central laws, including 12 sections under the Indian Penal Code, including both homicide and non-homicide offences, carry the death penalty. Provisions under provincial legislation are separate, and have not yet been put together in a list.

The constitutionality of death sentence was last upheld in May 1980 by the Supreme Court. However, the apex court ruled that the same should be imposed only in the ‘rarest of the rare’ cases. Surprisingly, most prisoners sentenced to death are not eventually executed. Less than 5 per cent have actually been executed. In most of the cases, their death sentences were commuted by the higher courts following appeals. The findings do not suggest that the state authorities intentionally discriminate against poor or less educated prisoners. But the report does allege that the system is so loaded that there is a degree of indirect discrimination at work which worsens the chances of fair trial for prisoners from disadvantaged backgrounds. Yet issues pertaining to fair trial and treatment of prisoners on death row by the criminal justice system are almost never discussed with the required seriousness. Indirect discrimination happens against such prisoners when a seemingly impartial and innocuous practice impacts particular groups negatively, even if it is not purposely directed at the groups. But given the irreversible nature of the death penalty, it is particularly important that fair trial rights are scrupulously safeguarded in such cases.

International human rights discourse agrees that every death sentence that is imposed after an unfair trial violates the right to life. The Law Commission of India, in one of its reports, recommended the abolition of the death penalty in phases, beginning with ending it for all offences except those related to terrorism. The Death Penalty India Report comes as a rude shock. Principles of custodial care remain theoretical for the death row prisoners, although it is obligatory for the police to take care of their well-being and health. It is fervently to be hoped that the findings of the report will prompt the prison administrators and policy makers to sit up and take notice and thus effect meaningful interventions to ensure the right of the undertrials to have an effective justice delivery system in the country.

(The writer is an IAS officer, presently posted as the Commissioner of School Education, West Bengal. The views are personal and don’t reflect those of the Government)