The Death Penalty Research Project provided us an insight into the failure of safeguards in the criminal justice system promised by the constitution and various statutes. It greatly informed our transition to a centre for litigation and allied research into the many aspects that revolve around death row prisoners in India.
The research project left in us a pervasive sense of discomfort in not acting upon and furthering our enquiry into the vast information about the deep systemic flaws that we had become acutely cognizant of. This thrust us into metamorphosing into a team that legally represented prisoners on death row. The 2014 judgment of Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India & Others also acted as a catalyst in getting us involved in the cases of the prisoners.
The decision to undertake our current research projects to understand the mental health of death row prisoners and to unpack sentencing patterns of trial courts also find their genesis in the research project.
During the course of our litigation and research, we realised that conversations surrounding the death penalty are often binary, invoke rhetoric and are mostly around the law. It was, therefore, imperative to involve aspects beyond the law to ensure constant engagement with various stakeholders in the criminal justice system, including the Indian society. This led to the formation of a Public Affairs team, which recently concluded a study based on in-depth interviews with 60 former Supreme Court judges to understand their perspectives on different aspects of the criminal justice system in India, including the death penalty.
A crucial learning from the Death Penalty Research Project was the dearth of quality legal representation for death row prisoners. Towards this end, one of the earliest tasks undertaken by Project 39A was securing quality pro bono legal representation for indigent death row prisoners. Our litigation team comprises 7 litigation and 2 mitigation associates. We are involved in the cases of over 50 prisoners on death row from across 12 states. While we currently practice predominantly in the Supreme Court, our litigation is expanding to providing assistance in cases in various High Courts on issues such as, access to prisoners’ health records, urging juvenility claims, and improper rejections of mercy petitions.
From the defense of individual death row prisoners to challenging systemic and institutional problems in the justice system, it is our endeavour to engage with the criminal justice system in meaningful ways. Small yet significant victories in the past have been the due process requirements in issuing death warrants laid down by the Supreme Court in Shabnam v. Union of India (May 2015) and a successful review of a decision of a Constitution Bench of the Supreme Court in Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India & Others to secure the relief of an open court review for death row prisoners whose curatives have been dismissed (January 2016).
Ensuring equal attention to arguments on both conviction and sentencing is integral to Project 39A’s litigation ethic. This requires us to conduct robust mitigation investigations through extensive interviews with prisoners and informants in their lives. To provide a nuanced understanding of prisoners’ backgrounds, we seek advice from experts in related fields such as social work, psychiatry, and developmental psychology. Another central component is maintaining regular communication with the prisoners we represent, through letters and prison visits.
Our litigation efforts have been made possible by the generous and dedicated support of a growing network of advocates from across the country, including Senior Advocates.
A measured and progressive expansion of the death penalty discourse in India demands that existing assumptions about capital punishment be challenged. Our research is, thus, grounded in an interdisciplinary approach and actively engages with penal philosophy, criminology, forensic science, psychiatry, and law. Our focus also lies in analysing contemporary and archival data in India to gauge the functioning of existing institutional stakeholders within the criminal justice system.
Mental Health Research Project
The Mental Health Research Project is an ongoing nationwide study on the mental health of prisoners sentenced to death in India. It is the first of its kind empirical and descriptive study to take a medico-social approach to the mental health of death row prisoners in India. The project was conceived out of the need to collect accurate data on death row prisoners, through an empirical and descriptive study, in order to broaden the current sphere of knowledge on the death penalty.
Through the project we aim to examine the presence of mental illness and intellectual disability among death row prisoners. An important component of the project is undertaking a descriptive analysis of the lived experience of prisoners on death row with a focus on mental health. We have interviewed over 90 death row prisoners and their families, across prisons in Delhi, Madhya Pradesh, Chhattisgarh, Kerala and Karnataka.
The specific issue of mental health and death row prisoners in India has been chosen with a view to aid various institutions in the criminal justice system in understanding the complexities of the field of mental health and work towards a nuanced jurisprudence on mental health and death penalty in India.
The Trial Court Sentencing Project
The Trial Court Sentencing Project aims to analyse the use of the ‘rarest of rare’ doctrine, originally formulated in Bachan Singh v State of Punjab (1980), at the trial court level. The project examines 214 trial court judgments from Delhi, Madhya Pradesh and Maharashtra of cases where the death penalty was imposed between 2000-2015. The foundation for the Sentencing Project lies in the Death Penalty India Report, 2016 which found that of over 1700 prisoners who were sentenced to death by trial courts during this period, the Supreme Court ultimately confirmed only 4.3% of the death sentences.
While there is existing literature on sentencing in death penalty cases in India, it focuses on the Supreme Court. This study, however, with its doctrinal roots aims to understand the interpretation, application, and compliance with the ‘rarest of rare’ doctrine by trial courts. It also critically engages with the evolution of the doctrine from the original meaning assigned to it by the Supreme Court in Bachan Singh. Sentencing practices of the trial courts are then juxtaposed with the first principles of criminal law to present an evaluatory picture of trial court sentencing in India.
The inspiration for our public affairs work comes from a need to break down polarised and singular narratives of the criminal justice system from the perspectives of those who have experienced it, while presenting it in creative, interactive and sensitive ways to a general audience, particularly in the digital space.
Through various aspects of our work, we realised that tracking details of prisoners on death row is an arduous and elaborate process. To rectify this, we maintain an official count of death row prisoners by filing applications under the Right to Information Act (2005), and mining court websites and media reports. The information generated from this effort is compiled into an annual publication on death penalty statistics.
To cater to an audience beyond the legal community, we are currently building a freely accessible online repository comprising creative works and legal materials on the death penalty and the Indian criminal justice system. The repository will include materials that reflect social, political and cultural engagement with the criminal justice system. In addition to legal documents, it will comprise archived documents and cultural material, such as prose, plays and movies, in different languages.
We are also in the process of producing an anthology of 20 short stories inspired by the death row prisoners we met during DPRP.