How just is justice? 

While the debate on the death penalty continues, the spotlight is now on the kind of trial a prisoner on death row often undergoes. The Death Penalty India Report, compiled by the Delhi-based National Law University (NLU), points out that many among those sentenced to death were denied even their basic legal rights. That explains, perhaps, why only 4.9 per cent death sentences have been upheld by appellate courts in the past 15 years. 

Some of the basic violations, as listed by the report, released recently, are:

USE OF HANDCUFFS

The law states that prisoners should not be handcuffed in court but the Death Penalty India Report states that prisoners on death row are routinely handcuffed when they appear for their trials.
“There were instances recorded of prisoners who were kept handcuffed even in the courtroom while proceedings were taking place,” the report states.

This is in violation of Section 49 of the Code of Criminal Procedure (CrPC) which disallows handcuffing unless it is feared the prisoner will escape or there can be harm.

Former Justice V.R. Krishna Iyer in Prem Shankar Shukla vs Delhi Administration (1980) described handcuffing as “inhuman, cruel and unreasonable”. Prisoners should be handcuffed only if the State has no other way of ensuring   the prisoner doesn’t escape, or if the prisoner is deemed dangerous.

But this is a routine violation, points out Mumbai-based lawyer Farhana Shah. “The common argument used by the police is there is apprehension that the person, if not handcuffed, will abscond. But nobody cares that the law is being violated,” says Shah, who represented Ajmal Kasab, executed for the 2008 attacks in Mumbai.

ACCESS TO LAWYERS

The NLU team asked 189 prisoners who were on death row if they were represented when they were first produced before the magistrate. But 89.4 per cent said they did not have a lawyer.

Article 21 of the Constitution casts the obligation on the State to preserve life. In M.H. Hoskot vs State of Maharashtra (1978), the Supreme Court said the right to free legal aid was the duty of the government and an implicit aspect of Article 21 in ensuring fairness. Section 304 of the CrPC states that if the accused is not represented by a lawyer, or cannot engage one, the court shall assign a pleader for his or her defence at the expense of the State.  

Legal educator N.R. Madhava Menon says that no criminal trial can happen without a defence lawyer and the lawyer should be assigned before the trial starts. “It is the responsibility of the court (precisely the judge) that the accused gets a lawyer and understands the implications of the charges made against him or her. Also, the accused should be told that he or she is entitled to plead not guilty if he or she is innocent,” the founder vice-chancellor of the West Bengal National University of Juridical Sciences states.

But legal observers hold that lawyers provided by the government seldom take an interest in a case. “There are instances when lawyers from state legal services authority do not meet the accused in jail. In such instances, the accused doesn’t get a fair representation in the court,” Shah says. This is especially true in terror cases, legal experts point out. 

DOCUMENTS FOR THE ACCUSED

Section 207 of the CrPC states that the magistrate has to furnish the accused with a copy of the chargesheet, along with other relevant documents — such as the first information report, statements made by persons whom the police may seek to examine as witnesses and judicial confessions before the magistrate.

But the report states that 60 out of the 255 prisoners on death row, when asked if they had received a chargesheet, replied that they had not. The 195 prisoners who did receive a copy of the chargesheet said they were given this after the trial began, or even after the pronouncement of the trial court judgment.

Worse, even after the chargesheet was provided to them, few understood the language. “Understanding the convoluted language of the chargesheet is mostly impossible for prisoners,” lawyer Shah states.

EXAMINATION BY THE JUDGE

The law provides for direct interaction between the judge and the accused (without any role of the lawyers) and this is seen as an integral element of a fair trial. It is an obligation upon the judge under Section 313 of the CrPC to explain simply and clearly each of the incriminating circumstances presented by the prosecution to the accused.

This, however, is denied to prisoners sentenced to death, the report states. “Often, prisoners complain that they don’t get an opportunity to explain their version as the questions are in a ‘Yes or No’ format,” Shreya Rastogi, co-author of the report, says.

Legal experts say that questions should be asked in such a way that there is no room for confusion. This is when the court will be in a position to know all the circumstances which have been brought in evidence against the accused, and the questions put by it can cover this entire gamut.

“Section 313 of the CrPC allows the judge to have a conversation with the accused,” Supreme Court advocate K.T.S. Tulsi says. “But it is done in a mechanical manner and is dictated by the prosecutor. The accused is made to sit on the floor. He or she doesn’t have the guts to get up and tell his or her story.”

ACCESS TO TRIAL COURT VERDICT

Under the law, when an accused is sentenced to imprisonment, a copy of the judgment should be provided to him or her immediately after the pronouncement of the sentence, free of cost. Section 363 of the CrPC also allows the accused to apply for a translated copy of the judgment in a language that the accused understands.

But in most cases, death row convicts were not given a copy of the judgment, the report finds. Prisoners also did not get a translated copy of the judgment, originally written in English, when they asked for it. However, in the M.H. Hoskot case, the Supreme Court had observed that being given a copy of judgment to the accused was a part of the right to appeal.
“These violations clearly show how just the criminal justice system is,” says former VC Menon.