More Indians Spending Longer Times On Death Row Is Torture—Prof Anup Surendranath

While news reports paint a poignant picture of the travails of the family of Nimisha Priya, a nurse sentenced to death for murder in Yemen, the focus must also shift to the situation in India. It isn’t rare for Indian public opinion to sway in favour of the death penalty, especially in cases where emotions are involved—or whipped up. Dr Anup Surendranath, Professor of Law and Executive Director at The Square Circle Clinic, National Academy of Legal Studies and Research (NALSAR), Hyderabad, explains why the death penalty is inhuman, and why waiting on death row amounts to torture. He also explains why the excessive—sometimes exclusive—focus on so-called high profile cases puts the hundreds who are given the death sentence through unbearable suffering, even though they may not ultimately be hanged. Excerpts from an email interview with Saher Hiba Khan.

There seems to be widespread and strong public support for the death penalty in instances of heinous crimes in India. How should the judiciary balance this with the Article 21 protections for due process, dignity and reform?

On this question, I have always drawn tremendous guidance from what the South African Constitutional Court said in its landmark death penalty decision (S vs Makwanyane, 1995). Justice Chaskalson’s opinion in that case powerfully captures the idea that the role of judges in these divisive contexts is to give effect to constitutional protections, and it is not their job to reflect public opinion or allow their decisions to be influenced by public opinion. Judges need to give effect to the meaning and content of Article 21 without being influenced by public opinion. That, in many ways, is at the heart of what we mean by the “rule of law”.  

In 2022, trial courts in India imposed 165 death sentences, the highest in over 20 years, but the Supreme Court confirmed only three. What does this disparity reveal about the application of the “rarest of rare” doctrine?

The exaggerated and unjustified use of the death penalty by trial courts is alarming. It is evident from the Supreme Court’s decisions over the last eight to nine years that there are serious concerns about the manner in which trial courts are imposing the death sentence. Trial court judges have to meet certain requirements and adopt a certain process, laid out in Supreme Court judgments, if they want to impose the death penalty. Those requirements, processes and the necessary reasoning are rarely ever complied with. Over the last forty-five years of its existence, the “rarest of the rare” doctrine has been exposed as a completely hollow doctrine and it does not have any concrete meaning anymore—it has, more or less, become whatever each judge wants it to mean.

In cases like Dhananjoy Chatterjee and Afzal Guru, where convictions relied on circumstantial evidence or disputed confessions, is the death penalty justifiable in a system with poor legal aid and investigative flaws?

To understand the systemic flaws, we need to look at the routine death penalty cases just as much, where hundreds of individuals are sentenced to death every year. The shoddy and manipulated investigations, the poor quality of evidence, the rampant use of custodial violence are all stark realities—and to this we must add the fact that a vast majority of death row prisoners are extremely poor and with hardly any means to have effective legal representation (irrespective of whether it is state legal aid or private representation).

The number of acquittals of death row prisoners in the Supreme Court has gone up in recent years and those judgments are a serious indictment of the flawed investigations and poor representation in these cases.

Since 2004, only eight executions have occurred despite hundreds of death sentences. Do such prolonged delays amount to psychological torture, and how should India address the “death row syndrome”, a term that refers to the psychological burden of living in harshly uncertain circumstances?

India’s death row population has increased by over 40 per cent in the last 10-12 years, but at the same time, the rate of the Supreme Court confirming death sentences has fallen significantly. This contrast means that more people are spending longer times on death row under unjustified death sentences. We are inflicting the suffering of living under the sentence of death in a shockingly callous manner.

It takes a very long time before the Supreme Court finally considers and decides the criminal appeals and it has been finding that a very large proportion of these death sentences are unjustified. We really need to have a moratorium on the use of the death penalty by the trial courts and undertake a thorough review of how things have gone so horribly wrong. 

Can capital punishment, which forecloses any chance of rehabilitation, truly align with India’s penal philosophical ideals, which are based on human dignity and reform?

The death penalty is a deeply dehumanising punishment and asking someone to live under the sentence of death must be recognised as a form of torture. And as with all instances of torture, there can never be any justification for it. It is deeply dehumanising because we are reducing the individual to a terrible thing they did—and wiping out everything else about that individual. Giving the death sentence is saying that there is absolutely nothing redeeming about this individual—and I think the system has to actually aim for that deep level of dehumanising since it wants to kill an individual. It needs that deep level of dehumanising to take life. 

Given the concern that executions like those of Afzal Guru (the Parliament attack case convict) and Yakub Memon (convicted for serial blasts in Mumbai in 1993) were politically symbolic, how can India ensure the death penalty isn’t used to serve state messaging or populism?

Much has been said and written about the executions of Afzal Guru and Yakub Memon. And, very often, we tend to think that those instances and something like the Delhi gang rape case (or the ‘Nirbhaya’ case from 2012) constitute the death penalty story in India. However, there is a far more routine, everyday use of the death penalty that we just don't talk about. Hundreds of individuals sent to live under the sentence of death every year is a routine infliction of suffering and torture by the criminal justice system—and that too when the Supreme Court is routinely coming to the conclusion that such imposition is unjustified. I think trial judges are responding to the local public pressure they confront in these cases—and they are taking the deeply troubling approach that it is alright to impose the death sentence at the trial level, and that these can be looked at again during appeals in the High Court and the Supreme Court.

Project 39A data (2000–2015) shows that only 4.9 per cent of trial court death sentences were confirmed by appellate courts. In 2022, 165 were sentenced, but only three were upheld by the Supreme Court. Do these figures point to systemic flaws in trial-level sentencing?

This should be a critical area of concern for the Supreme Court. It is evident that trial court judges, in imposing these hundreds of death sentences every year, are not following the requirements laid down in Supreme Court judgments. There is such a stark contrast between what the Supreme Court says should be done and what trial court judges are doing. A vast majority of trial court death sentence judgments are in blatant violation of Supreme Court judgments—there is no other way of saying it. 

A Project 39A report in 2023 said that women make up less than 4 per cent of death row inmates, and none has been executed since 1955. Is this a reflection of how gender is viewed, or based on valid considerations of mitigating factors?

This is more or less in tune with trends in other jurisdictions as well. I think it has more to do with the nature and context of offences that are committed by women—but it is certainly an area of research that hasn’t received much attention in India.