Close to noon on May 20 this year, Lubhyathi Rangarajan and Nishant Gokhale, associates and lawyers at the Death Penalty Litigation Clinic (DPLC), waited in Agra Central Jail for a meeting with Saleem. Five days earlier, the Supreme Court had confirmed the death sentences of Saleem and Shabnam, convicted for killing seven members of Shabnam’s family, including a 10-month-old infant, in 2008.
Rangarajan and Gokhale spoke with Saleem for nearly two hours and conveyed the Delhi-based clinic’s desire to help him. The duo went through the case records with Saleem, took him through the evidence and testimony, and he in turn gave his inputs and insights. “Strangely, no one had asked him these details earlier,” says Gokhale. The trial court proceedings were still fresh in Saleem’s mind. As the case went through High Court and Supreme Court, he had often banked on newspaper reports to know the progress.
The morning after their meeting at the Agra jail, Rangarajan, Gokhale and Saleem learnt — again from newspapers — about the death warrants issued for Shabnam and Saleem by the Sessions Judge of Amroha. “He had absolutely no idea and it was a coincidence that we were there the day before. We were shocked and taken aback by the hastiness,” says Rangarajan. The warrant had come six days after the confirmation of death sentence, bypassing the mandatory 30-day period available to convicts to explore all legal options. Silent on the date and time, the warrant merely instructed a swift execution, says Rangarajan. “Usually, there is a hearing where the accused is produced and given a lawyer. None of this had happened,” she adds.
Gokhale and she immediately filed a Public Interest Litigation in the Supreme Court. The case was listed two days later, and the court quashed the warrants, citing the death-row convict’s fundamental right to life. A review petition has now been filed in Saleem’s case in the Supreme Court.
For the barely year-old DPLC, getting the warrant quashed was a small but significant milestone. Part of Delhi’s National Law University (NLU), the clinic aims to provide ‘competent and effective legal representation’ free of cost to indigent prisoners on death row, and is a one-of-its-kind resource linked to a university in India. For a team that tracks death sentence cases countrywide, it is a small one. Apart from Rangarajan and Gokhale, it has Shreya Rastogi and Maitreyi Misra; Anup Surendranath, an assistant professor at NLU, is the director. Through advocates on record, the clinic currently represents around 35 death-row prisoners, mainly in the Supreme Court.
Story behind the sentence
The clinic did not figure initially in their plan, which had been about research, largely carried out by university students, on the lack of empirical data on death penalty in India. While mainstream narratives often focus on death sentences when there are Supreme Court decisions or executions, the researchers and students looked for the stories behind the sentences — the profile of prisoners, their experiences with the police, the evidence the courts relied on for the sentencing and so forth. They recreated the legal processes that preceded the conviction. Rather than debate death penalty in the abstract, the group wanted to analyse it from within the criminal justice system. Yes/No, For/Against were no longer the questions; instead it was ‘How.’ “Unless you go into the details of the criminal justice system and what it has used to bring upon the death penalty, you cannot do the debate,” says Surendranath.
First, they needed data — accurate and up-to-date. Information on the exact number on death row was often unavailable. In 2013, the university collaborated with the National Legal Services Authority and researchers visited central jails around the country that housed death-row prisoners. They interviewed prisoners in Jorhat and Jammu, Tihar and Nagpur. Of the 385 prisoners on death row till June 2014, the researchers included 373 in their study. “Some states were easier than others. Some were particularly difficult, like Maharashtra, where it took us nine months just to get the permission to interview. They did not allow us to interview prisoners sentenced to death for terrorist attacks,” says Surendranath.
In the process they realised if there was an outsider in this system it was the prisoner. “One thing that stood out was how all of this could have been carried out without the prisoner… all of it is based on documentation, the police produce documents and the defence lawyers rely on these documents. Nobody had ever spoken to the prisoner. We were the first to talk to them and get their version,” he says.
The prisoner profile was often all-too-similar — socially and economically backward; deprived of sound legal assistance in the lengthy and complicated processes involved. To complete their narratives, the researchers went looking for the families and met with mixed results. They came across hostile families that had snapped all ties, moved villages and wanted nothing to do with the prisoner. On the other hand, they also met resilient and supportive ones, eager to talk and help despite their poverty.
Given an opportunity to talk, the crime was often what the convicts talked about — of being trapped, about why they did it or why their reasons never came out in court. Surendranath says, the hope they gave the prisoners after a series of interviews was overwhelming. “Dealing with their expectations was tough. We were doing interview after interview. We were using them and not offering anything in return,” he says.
The university was clear this was an academic project, not an intervention. Despite being constantly reminded that the interviews did not mean legal assistance, it did not stop the prisoners from hoping. “They thought we had access to things that they did not. They thought we were a medium to get their stories out,” adds Surendranath.
As researchers uncovered gaping holes in the legal processes, the project evolved to include intervention. “In the end, it was merely the way these cases were carried out. A basic level of legal representation would have averted the death penalty,” he says.
During the research, one query they refrained from asking prisoners was — ‘Did you do it?’ At that point, they say, it was irrelevant. The back story of crime was often gruesome; sordid details frequently played out in the media. “You learn to slowly not obsess with ‘Did they or did they not do it’ and it’s the most difficult thing to do. We learn and teach at the law school that even if a person has committed the most horrific crime, there is a process by which they have to be sentenced…You may not be able to tune yourself completely out of it, but that is the challenge,” he adds.
It is a challenge the DPLC members face not only when they meet prisoners. Their work is at times not endorsed by others, including family and friends. For instance, when the India’s Daughter controversy raged, the team was at the receiving end of taunts. ‘Now, you would want to defend them too. Look what they think’, was a refrain they heard often.
Rastogi knows she is working in an area that polarises opinion. A layperson may not be willing to comprehend or acknowledge the fundamental rights of a prisoner convicted of multiple murders or respect the legal processes he/she is entitled to. Rastogi, who quit her corporate job for the clinic, says what often works is the general prisoner profile. “Like, why persons of a certain economic and social background often end up getting these punishments.” Constant interactions with the prisoners have shown her that despite their lives hanging in limbo for years, most of them have tried to move beyond the crime, however tough that may be. “There are so many prisoners we meet who tell us ‘Yes, I did that’. But they tell the story around it. They do not want to be locked in that period of time,” she adds.
Beyond the crime
Saleem, for instance, was a school dropout at the time of arrest. The DPLC members say he now has a diploma in agricultural science and human rights and is doing his final year bachelor’s degree. “He corresponds with us. And all these prisoners, whenever they write, are profusely apologetic for taking our time. On the other hand, it is their time that is precious,” says Rastogi.
Misra believes the change in narrative should begin by giving the prisoner his/her identity. “We do not even see them as a person. He/she is defined by their crime,” she says. Mainstream narratives should move towards ensuring that the state and courts fulfil their responsibilities in this process, she adds.
Though the clinic currently deals with cases that are at an advanced stage, where time is rapidly running out for the prisoner, Surendranath says that ideally any intervention should take place at the base, where foolproof legal representation will negate the possibility of a death sentence.
The clinic is handling cases where the members know they might exhaust legal options soon. Once the President rejects a mercy petition, they explore possibilities like a writ petition, a second mercy petition or a review petition, if it has not been filed. “The game is never really over. But in some cases we pretty much have the last option,” says Surendranath. He adds, “Taking life must be difficult; it has to be made as difficult as possible. A. You be goddamn sure. B. The person should be given all opportunity to represent their case.”