A couple of weeks ago, I found myself on stage with the eminent Supreme Court (SC) lawyer, Nitya Ramakrishnan, and one of the sitting SC justices, Madan Lokur. We were discussing the death penalty — to be more precise, the contents of a painstaking report brought out by the project on the death penalty at the National Law University, Delhi (NLUD). India is one of the few countries in the world that still retains the death penalty, and although there is debate on the issue — whether it relates to people like Afzal Guru or the assassins of Rajiv Gandhi — very few of us have actual details on those who end up on death row. The “celebrity” prisoners though are not a representative sample, even if they are what we talk about.

It took three years to complete the report. The research was conducted by NLUD students under the guidance of Dr Anup Surendranath, director of the death penalty project. When I mean research, I mean “search”. There is no centralised database on death penalty prisoners. As they are housed in state prisons, the Central government doesn’t have up-to-date information on who is in which jail, what condition they are in, the status of their appeals, if any, or even if they are dead or alive. Considering there are only 385 prisoners on death row — something the project discovered — this should not be that difficult a number to track. But we do not do this. Though the death penalty is supposed to be used in the “rarest of rare” cases, we seem to care little about what happens to them.

In his presentation at the launch, Surendranath, in no uncertain terms, said that our criminal justice system — as shown by the findings of the project — is underperforming, if not broken. Part of the reason behind this is found in the report itself. As part of the documentation on socio-economic profiles of the prisoners, it was found that 74 per cent of the prisoners are economically disadvantaged. More than 85 per cent had not finished secondary school. Surendranath added that the SC confirmed only 4.5 per cent of the sentences awarded by district courts. In at least 30 per cent of the cases the prisoner was acquitted, while the rest were commuted.

As these statistics make clear, it is the poor and uneducated — unable to defend themselves — who are sentenced to death. Justice Lokur mentioned how, quite often, such defendants fail to understand the case being presented against them, and cannot even give correct answers. It also became clear that many of the lawyers representing the prisoners did not explain the case to the client or provide updates on the same. In other words, the government routinely sentences people to death, and the poorest and most vulnerable among them disproportionately pay the heaviest price.

Fundamentally, a system that punishes the poor for being poor is an unjust system. From the details that emerge from the report — including that of custodial torture on a wide scale, a topic that Ramakrishnan has documented in her book — it is clear that the criminal justice system of India does not really dispense justice when it comes to death penalties. That is a fairly terrible indictment of one of the pillars of the state.

I asked Justice Lokur about where we go from here. His response is worth reflecting upon, not merely because he is a sitting SC judge, but because of its importance to the idea of a Republic built on logical argument.

“I remain an optimist,” he said, and pointed out that such a study is the way that change happens. Nothing can transform without research, without data or discussion. Research by universities, NGOs and other institutions have brought these issues to light. “You have a few more such reports,” he said, “and you’ll see how things correct themselves.”

Too many of us believe that an institutional democracy — one where an individual is allowed to vote freely and fairly — is good in itself. It is not. Democracy is a means to a good, and that good can only be achieved if democracy is informed by facts, by research, and by options. Our republic gives us the framework to debate, but we must fill it with the data necessary to move forward, and much of that data will be of injustices. It is only by uncovering them, discussing them, and finding solutions to them that a democracy becomes valuable, otherwise we can reduce the Parliament to an arena for shouting matches full of sound and fury signifying nothing.

Omair Ahmad is the Asia Editor for The Third Pole, reporting on water issues in the Himalayas; @OmairTAhmad

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