Life on Death Row By Varsha Rawtani from NLSIU, Bangalore
“Nothing in your previous life prepares you for living on death row. You're like a head of cabbage in a garden: planted, forced to lead a static existence, every day exactly like the last and the next. Unlike the cabbage, though, your life is without purpose. You are a cipher merely holding a place, awaiting your turn in the execution chamber. Until that day comes, perpetual misery is your condition in life, and your reward for surviving today is that you get to suffer tomorrow as well”, these words by Wilbert Rideau aptly gauge the severity and the callousness that capital punishment encompasses.
It is truly said that ‘great power comes with great responsibility’ and if the power is as grand as extinguishing a person’s life, then the responsibility attached to it must be of the highest order. It is therefore imperative to adopt a rigorous/ holistic approach in order to negate the possibility of any procedural discrepancies. With this idea in mind, the Indian legal system offers a host of remedies/recourses to the death convicts in form of review petition, (with an exception of open court hearing as mandated under Mmd Arif v. The Registrar, Supreme Court of India) curative petition, and mercy petition. However, the procedure continues to remain tainted because of reasons like incompetent representation, ignorant jury, baffling court room proceedings, political manipulation and weak-socio-economic background of death convicts.
I would say that the term ‘Death penalty’ is deceptive. The reason being that this penalty is not only limited to death but also guarantees a life filled with uncertainty, violence, and abandonment. The reports prepared by the Centre of Death Penalty (NLU-Delhi) showcase the rigours of incarceration encountered by death convicts. Death row convicts are not only subjected to unexplainable means of custodial torture and solitary confinement but are also stripped off the opportunity of acquiring vocational training or education from the minute they are convicted by the trial court. This raises a serious query- “Does such differential treatment have any legitimate backing or not?” This can only be answered by looking into the books of law. Firstly, this practice of differential treatment of death convicts was held unconstitutional by a 5-judge bench in Sunil Batra v. Delhi Administration & Ors 1978  and secondly, the guidelines laid out under Bachan Singh v. State of Punjab do keep the avenues of rehabilitation and reformation open till all remedies and recourses available to death convicts are not exhausted. One might argue that Section 73 of Indian Penal Code allows for solitary confinement but the Supreme Court in 1978 held that separate incarceration is permissible, that too only when the death sentence finally becomes executable.
Procedural lapses/delays also pose critical questions on the gravity with which one deals with the death penalty. Right from the unavailability of competent legal representation to inordinate delay in execution of the death convict, living on death row is considered more barbaric than the execution itself. One can attribute such anomalies to the fact that the Indian legal system is still nascent in its approach. Let me put forth two major arguments to underpin this thesis. Firstly, Article 22 of the Indian Constitution which guarantees the right of legal representation to every person arrested remains per functionary in practice. While the absence of lawyer in the pre-trial phase can be attributed to the economic vulnerability of those arrested, inadequate representation in the later stages is mainly due to lack of interaction between the lawyer and the convict. Minimal engagement results in lawyer’s failure to elicit vital information about relevant sentencing factors like socio-economic background, age and mental health of the accused, thus attacking the quality of representation. Ultimately, such malpractices negate the sentencing framework as laid down in Bachan Singh v. State of Punjab (the framework/guidelines suggest balancing the aggravating and mitigating factors of a case before passing a judgment).
Secondly, mercy petition, which is considered to be a silver lining in a dark cloud, in practice, is a nucleus of procedural anomalies, manipulation, and delays. At present, it takes an average of 12 years to decide upon a mercy petition. Death row convicts languish in jail for years under constant fear of death. This is because Articles 72 and 161 do not provide for a stipulated time period to decide upon a mercy petition. This loophole was later rectified in Navneet Kaur v. State of NCT of Delhi, Curative Petition (Criminal) No. 88 of 2013 (Supreme Court) when the Supreme Court held that inordinate delay can be considered a supervening circumstance for commuting a death sentence. Another obscurity which must be solved is that the time period for counting the delay. According to the present system, the time period for which the President sits on the mercy petition is not accounted into the delay; this impinges upon one’s Right to Life and Personal Liberty. Other obscurities like how many mercy petitions can be filed and whether a fresh petition could be filed if there is a “change in circumstances” remains open.
While some might find the guidelines laid down in Shabnam v. Union of India (Shabnam Guidelines advocate for open hearings and sufficient time gap between sentencing and execution) to be a path-breaking development, we forget to consider that because of illiteracy, alienation and inadequate interaction with the lawyers, the death convicts fail to comprehend the legal proceedings thus making open hearings redundant. One can conclude that though remedies are available on paper, their application is extremely superficial.
In a nutshell, the brazen violations of even the most basic protections like those against torture and confinement, along with the systemic inefficiency to provide for competent representation in capital cases is symptomatic of the nature and extent of the crisis within the criminal justice system.
 Wilbert Rideau, My Life on Death Row, The Progressive, (April 7,2011),available at http://progressive.org/dispatches/life-death-row/ (Last visited on July 12,2017).
 Centre on Death Penalty, Nlu-Delhi, Death Penalty India Report, (Feb 2016), available at http://www.deathpenaltyindia.com/wp-content/uploads/2016/05/Death-Penalty-India-Report-Volume-1.pdf (Last visited on July 13, 2017).
 Sunil Batra v. Delhi Administration And Ors. 1978 AIR 1675.
 Bachan Singh v. State of Punjab AIR 1980 SC 898.
 Section 73, Indian Penal Code, 1860.
 Article 22, The Constitution Of India, 1950.
 Article 72, The Constitution Of India,1950.
 Article 161, The Constitution Of India,1950.
 Navneet Singh v. State of NCT of Delhi, Curative Petition (Criminal) No.88 of 2013 (Supreme Court of India).
 Article 21, The Constitution Of India,1950.
 Shabnam v. Union of India, 2015 SCC Online SC 484.
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