As the clamour around 1993 Mumbai blast convict Yakub Memon's hanging grows louder, the debate over capital punishment raises its head. But what is perhaps worth considering is that in India, where almost everything — from politics to education — falls under the shadow of caste and ethnic prejudices, is the functioning of the judicial system absolutely free from bias? Or is the legal system also a victim of the same prejudices that plague the people it sits to judge?
In December 2014, right before the hanging of Surinder Kohli who had been convicted for allegedly kidnapping, raping and cannibalising 16 girls and women in a house on the outskirts of Delhi (popularly known as the Nithari killings), Outlook did a cover story on how prejudice plays an important part in determining who gets handed a death sentence and who doesn't.
Uttam Sengupta in his piece 'The Daily Noose' wrote:
A majority of convicts on death row are poor, Dalits, minorities, tribals
Convicts do not have access to quality counsellors, lawyers, psychiatrists
Quoting India's first exhaustive study of convicts on death row carried out jointly by the National Law University (NLU), Delhi, and the National Legal Services Authority (NALSA), Sengupta wrote:
The pioneering study is expected to confirm the long-held suspicion that capital punishment in India is reserved for the poor, marginalised and helpless. The report is still being finalised, but it should raise disturbing questions about violation of legal safeguards, the abysmal quality of legal assistance available to the poor and the treatment of prisoners on death row. The initial data compiled by the Death Penalty Research Project confirms the worst:
- An overwhelming majority of the 477 prisoners on death row (the figure updated to the beginning of 2014) happen to be Dalits, tribals, Muslims and OBCs
- There is a near-complete absence of direct evidence in most cases. In over 80 per cent cases, the conviction was based on confessions of the accused extracted through torture.
Sengupta also quotes eminent jurist V.R. Krishna Iyer, who in 1978 said:
The death penalty laws' wrathful majesty in blood-shot equality deals the fatal blow on the poor not the rich, the pariah not the brahmin, the black not the white, the underdog not the top dog, the dissenter not the conformist.
The article also talks about the deplorable conditions under which the prisoners who are on death row are made to live:
As soon as prisoners are sentenced by the trial court, they are shifted to death row. And there they remain till sentences are commuted or mercy petitions upheld. Death row inmates are not allowed to work or even mingle with other prisoners. They remain under constant watch and even at night the lights are never switched off. The padlocks are rattled every now and then to ensure that they are awake and not dead. Perversely, they are also fed a richer diet, fattened so to say, so that they do not fall ill before they are hanged.