VOICE OF PRISONERS SURVIVING THE

DEATH ROW IN INDIA

DISSERTATION SUBMITTED FOR THE PARTIAL

FULFILLMENT OF AWARD OF

MASTER OF LAW

-: SUBMITTED BY :-

BINAL P. SIDDHPURA
ENROLLMENT NO. T8420CSLAW040

-: SUPERVISED BY :-

DR. KALPESHKUMAR L. GUPTA

ASSOCIATE PROFESSOR OF LAW
PARUL UNIVERSITY, VADODARA, GUJARAT

SUBMITTED TO

PARUL INSTITUTE OF LAW,

FACULTY OF LAW, PARUL
UNIVERSITY, VADODARA, GUJARAT,

MAY, 2021

CERTIFICATE

I|Page
This is to certify that the work incorporated in this Dissertation entitled “VOICE OF
PRISONERS SURVIVING DEATH ROW IN INDIA” submitted by BINAL P.
SIDDHPURA comprises the result of independent and original investigations that I have
carried out. The materials obtained from other sources and used in the dissertation have been
acknowledged appropriately and properly. The work contained in this dissertation has not
been submitted for the award of any other degree/diploma in this University as well as any
other University.

Place : Vadodara
Date : 20/05/2021
Regi. No. : __ Name & Sign of the Research Scholar

Certified that the work mentioned above was carried out under my/our guidance.

Place : Vadodara
Date : 20/05/2021 Name & Sign of the Guide(s)
Parul Institute of Law
Faculty of Law,
Parul University, Vadodara

Forwarded through the Head/Chairperson DRC.

DECLARATION

II | P a g e
I, BINAL P. SIDDHPURA, do hereby declare that this project work for the subject Seminar
and Project Work is a result of my own, original work, under the supervision of Dr.
Kalpeshkumar L. Gupta. This work, titled “VOICE OF PRISONERS SURVIVING THE
DEATH ROW IN INDIA” has not been previously submitted to any other university for any
other examination. I also declare that all information in this project has been obtained by and
presented in accordance with academic rules and ethical standards.

College name: Parul Institute of Law

Seat number: T8420CSLAW040
Batch: 2020-2021

Signature of student

III | P a g e
 ACKNOWLEDGEMENT

God Almighty you are acknowledged. You know very well what it took you to bring me up
to this level. Now I can say Ebenezer; Oh Lord, this far you have brought me.
I am grateful to the Parul Institute of Law and its entire staff, for according me the
opportunity to participate in this challenging programme and for giving me their unwavering
assistance that saw me through the whole duration of study.
I am deeply indebted to a number of persons without whose commitment and assistance this
work would not be in place. My special gratitude goes to my supervisor, Dr. Kalpeshkumar
L. Gupta for his patience, and his thorough and incisive guidance throughout the entire study.
He tirelessly availed me with his own articles and those of his colleagues allowing me to
benefit from his immense expertise in the field.
My appreciation also goes to Professors of the Parul Institute of Law who made countless
comments on my proposal sharpening it into a real scholarly study on my final draft of this
dissertation. Your encouragements made me travel this long journey to the end. Also to the
Administrators at the Parul Institute of Law for their tireless technical support.
I would like to give special thanks to my family, for offering me advice, and supporting me
through this entire process. To my friends and all the above named persons and others whom
I could not mention due to the constraint of space, I am truly grateful.

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 TABLE OF CONTENTS

Sr. No. Particulars Page no.

 Certificate ii
 Declaration iii
 Acknowledgement iv
 List of Abbreviations vii
 Abstract ix
 List of Tables

 List of Figures

Chapter 1 1. Introduction 11
1.1 Background and Statement of the Problem 11
1.2 Research Methodology 12
1.3 Sampling and Data Collection 16
1.4 Data Analysis 17
Chapter 2 2. History of Capital Punishment in India
2.1 Death penalty in the realm of law
2.2 An overview of Death Penalty in International Law
2.3 An overview of the legal framework in India
Chapter 3 3. Constitutional Validity of Capital Punishment 19
3.1 Capital Punishment – Constitutionality in India 19
3.2 Personal Liberty 22
3.3 Procedure Established by Law 29
3.4 From Procedure Established by Law to Due Procedure of
3.5 Relationship of Article 14, 19 and 21
Chapter 4 4. The Court System in India 39
4.1 The Court System 39
4.1.1 Procedure of Court
4.1.2 Trial Court
4.1.3 Confirmation By the High Court
4.1.4 Special Writ Petition

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 4.1.5 Review and Reopening of the Review
4.1.6 Curative Petition
4.1.7 Mercy Petition
4.1.8 Death Warrant
4.2 Supreme Court of India
4.3 High Courts
4.4 Subordinate Judiciary / The Judiciary Service of the State
Chapter 5 5. Voice of Prisoners on Death Row
5.1 Introduction 57
5.2 Death row Prisoners in the study 60
5.3 Present stage of appeal against death sentence
5.4 Impact of Death sentence on the families of death row
prisoner
Chapter 6 6. The Process of Death Penalty 71
6.1 Arrest 71
6.2 Class and/or Caste 75
6.3 Coerced 78
6.4 Charged
6.5 Confined
6.6 Sent to Judicial Custody
6.7 Prisons
6.8 Prison Officials
6.9 Prison Visitors
6.10 Trial
6.11 Escorts
6.12 Court room experiences
6.13 Lawyers
6. 14 Judges/Magistrates
6.15 Media
6.16 Sentenced to Death
Chapter 7 7. Double Jeopardy
7.1 Physical Structure of Death Row

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 7.1.1 Prison
7.1.2 High Security Yard
7.1.3 Cell of a Death row Prisoner
Chapter 8 8. Life on Death Row
8.1 Routine Followed by Prisoners on Death Row
8.2 Rules Followed by Prisoners on Death Row
8.3 Prisons
8.4 Prison Officials
8.5 Death Row Phenomenon or Syndrome
Chapter 9 9. Conclusion 86
Chapter 10 10. Implication, Recommendations and Future Studies
Bibliography 99

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 List of Abbreviations

1. A.I. R. - All India Reporters

2. Cr. P .C. - Criminal Procedure Code
3. C P R I - Capital Punishment Research Initiative
4. C J P - Capital juror Project
5. ECOSOC - Economic and social council
6. EU - European union
7. ICCPR - International Covenant on Civil and Political Rights
8. I.P.C. - Indian Penal Code
9. ICCPR - International Covenant on Civil & Political Rights
10. ICC - International Criminal Court
11. NDPS Act - Narcotics, Drugs and Psychotropic Substances (Prevention) Act
12. NDPA - National Death Penalty Archives
13. NSF - National Science Foundation
14. POTA - Prevention of Terrorism Act
15. SC - Supreme Court
16. TADA - Terrorist and Disruptive Activities (Prevention) Act
17. UMHA - Union Ministry of Home Affairs
18. UDHR - Universal Declaration of Human Rights
19. All.E.R. - All England Reporters.
20. A.P. - Andhra Pradesh.
21. Bom. - Bombay.
22. Cal. - Calcutta.
23. Cri.LJ. - Criminal Law Journal.
24. Del. - Delhi.
25. Ed. - Edited by
26. Gau. - Gauhati.
27. Guj. - Gujarat.
28. H.P. - Himachal Pradesh.
29. J.I.L.I. - Journal of Indian Law Institute.

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30. J&K - Jammu and Kashmir.
31. Ker. - Kerala.
32. Mad. - Madras.
33. M.P. - Madhya Pradesh
34. P.U.C.L - Peoples Union for Civil Liberties
35. Ran. - Rangoon.
36. Raj. - Rajasthan.
37. S.C.C - Supreme Court Cases.
38. S.C.R - Supreme Court Reporter.
39. U.P. - Uttar Pradesh.
40. US - United States.
41. ACERWC - African Committee of Experts on the Rights and Welfare of a Child
42. ACRC - African Charter on the Rights of the Child
43. ACHPR - African Charter on Human and Peoples’ Rights
44. ACHPR-OP - Protocol to the African Charter on the Death Penalty
45. ACoHPR - African Commission on Human and People’s Rights
46. AFCHPR - African Court on Human and Peoples’ Rights
47. CAT - Convention Against Torture
48. CEDAW - Convention on the Elimination of all forms of Discrimination Against
Woman
49. CERD - Committee on the Elimination of Racial Discrimination
50. CESCR - Committee on Economic, Social and Cultural Rights
51. CoAT - Committee Against Torture
52. CoEDAW - Committee on the Elimination of all Forms of Discrimination Against
Woman
53. CoRC - Committee on the Rights of a Child
54. CPEA - Criminal Procedure and Evidence Act of Zimbabwe
55. CRC - Convention on the Rights of the Child
56. GPA - Global Political Agreement
57. GOVT. - Government
58. HRC - Human Rights Committee
59. HRD - Human Rights Defenders
60. HRWZ - Human Rights Watch, Zimbabwe

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61. ICERD - International Convention on the Elimination of all forms of Racial
Discrimination
62. ICESCR- International Covenant on Economic, Social and Cultural Rights
63. ICCPR - International Covenant on Civil and Political Rights
64. ICCPR-OPT 2 - Second Optional Protocol to the International Covenant on Civil and
Political Rights
65. ICJ - International Court of Justice
66. MDC - Movement for Democratic Change
67. NGO - Non-Governmental Organization
68. PDP - People’s Democratic Party
69. OHCHS - Office of the High Commissioner for Human Rights
70. UDHR - Universal Declaration on Human Rights
71. UNHRC - United Nations Human Rights Council
72. UNHRS - United Nations Human Rights Systems
73. UPR - Universal Periodic Review
74. USA - United States of America
75. UN - United Nations

X|Page
 Table of Cases

1. A.B.Gopalan v. State of Madras: AIR 1950 S.C.27.

2. Ambaram v. State: AIR 1976 S.C. 2159.
3. Amrutha v. State of Maharashtra: AIR 1983 S.C. 629.
4. Bachhan Singh v. State of Punjab: AIR 1980 S.C.898.
5. Balwant Singh v. State: AIR 1976 S.C. 230.
6. Bhudan Chowdhary v. State of Bihar: AIR 1955 S.C. 191.
7. Bhupendra Singh V. State of Punjab: 1969 Cri.L.J. 6 (S.C).
8. Darshan Singh v. State of Punjab: AIR 1988 S.C. 727.
9. Daya Singh v. Union of India: (1991) SCJ 158.
10. Deena alias Deen Dayal v. Union of India: AIR 1983 S.C. 1155.
11. Dharma Ram Bhangare v. State of Maharashtra: AIR 1973 S.C. 476.
12. Gajendra Singh v. State of Uttar Pradesh: AIR 1975 S.C.1703.
13. Gurudas Singh v. State of Rajasthan: AIR 1975 S.C. 1411.
14. Jagmohan Singh v. State of Uttar Pradesh: AIR 1973 S.C.947.
15. Kailash Kaur v. State of Punjab: AIR 1987 S.C. 1368.
16. Kehar Singh v. State: 1987 Cri. L.J. 291 (Del).
17. Kehar Singh v. (State) Delhi Administration: AIR 1988 S.C. 1883.
18. Kesavananda Velayudha Panicker v. State of Kerala: AIR 1974 S.C.1918.
19. Keshar Singh v. State of Punjab: AIR 1974 S.C. 985.
20. Machhi Singh v. State of Punjab: AIR 1983 S.C. 957.
21. Maneka Gandhi v. Union of India: AIR 1978 S.C. 597.
22. Maru Ram v. Union of India: (1981) SCC 107.
23. Mithu v. State of Punjab: AIR 1983 S.C. 473.
24. Mohin Singh v. Delhi Administration: AIR 1973 S.C. 697.
25. Nanavati v. State of Maharashtra: ADR 1961 S.C. 112.
26. Nirbhaya Rape case v. Union of India ( 2012)
27. Rajendra Prasad v. State of Uttar Pradesh: AIR 1979 S.C. 916.

XI | P a g e
28. R.C.Cooper v. Union of India: (Bank Nationalization Case) AIR 1970 S.C. 564.
29. Sher Singh v. State of Punjab: AIR 1983 S.C. 465.
30. Srirangam v. State of Tamil Nadu: AIR 1978 S.C. 274.
31. Sunil Batra v. Delhi Administration: AIR 1978 S.C. 1675.
32. Suresh v. State of U.P; AIR 1981 S.C. 764.
33. Vatheeswaran T.V.v. State of Tamil Nadu: AIR 1983 S.C. 361

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 ABSTRACT OF THE PRESENT RESEARCH

Special Economic Zone is a delineated area to promote export exports, generate

employment, attracting foreign, domestic investments. India is the first country in Asia to
have concept of Export Processing Zone. In year 2000 after the visit of Chinese SEZ, Mr.
Murasoli Maran the then Commerce Minister of India brought the concept of SEZ in
India. Before that there were centrally set up seven EPZs in the country. SEZ was
included in Export Import Policy in year 2000. In year 2005, an exclusive law was passed
for SEZ called The Special Economic Zone Act, 2005 and rules for it The Special
Economic Zones Rules, 2006. So far more than 400 SEZs have formally been approved
by the Central Government out of which 57 SEZs are in Gujarat. Gujarat is one of the top
five states in the country in implementing and promoting SEZs. Present study will
evaluate the economic and legal aspects of SEZs in the Gujarat.

The content of the thesis is presented in the form of five chapters.

Chapter 1 is devoted to introduction to Special Economic Zones, literature review and

research methodology. Chapter 2 deals with legal provision related to Special Economic
Zones in India. In Chapter 3, profiles of all selected functional Special Economic Zones
have been given. In Chapter 4, all data have been analyzed and interpreted accordingly.
Finally in Chapter 5, the researcher has concluded the study with some suggestions,
limitations of the study. List of references has been included separately.

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XIV | P a g e
 Chapter - I

INTRODUCTION

The Death Penalty Research Project is an attempt to answer questions concerning the socio-
economic profile of prisoners sentenced to death in India along with enquiring into the
manner in which they are sentenced to death. Through personal interviews with prisoners and
their families, the aim was to focus on aspects of the death penalty that have received very
little attention in India and explore new fronts for discussion beyond analysis of Supreme
Court judgments. This Report must be read in the context of our position that the death
penalty is a unique punishment. The every- day uncertainty between life and death sets
capital punishment apart from imprisonment of any other kind. Taking a position that the
death penalty
is a unique punishment does not in any manner imply that this Report is a document that
wades into the debate on abolition of the death penalty. The question concerning abolition is
a much wider question, beyond the man- date of this Report.

Through the issues addressed in two volumes of the Report, the effort is to bring to the fore
structural and institutional concerns that throw significant light on the administration of the
death penalty. The institutions, legal provisions and practices that are invoked in the context
of the death penalty point towards a crisis in the criminal justice system that cannot be
ignored. The narratives from prisoners sentenced to death show that muliple facets of the
criminal justice system like police custody, investigation, trials, legal representation,
treatment in prisons, clemency proceedings are beset with deep structural flaws. While
evaluating and reflecting on these components of the criminal justice system, there must be
particular con- sideration of the fact that these findings and observations are being made in
the context of the harshest punishment in our legal system.

While an in-depth understanding of the dynamics of the criminal justice system is critical, it
is equally important to understand on whom the burden
of the death penalty falls. The capabilities required to negotiate the criminal justice system
and bear the burdens it imposes raise significant questions about the differential impact of the
death penalty. While the Report certain- ly does not suggest a causal connection between
various socio-economic factors and the death penalty, it demonstrates the disparate impact of
1|Page
the harshest punishment in our legal system. The violent and alienating dynamics of India’s
criminal justice system are evident to everyone who comes
in conflict with it. However, the concern has been that structural reasons often ensure that
people with a certain socio-economic profile are disproportionately affected by it. While this
Project cannot make any claim in that regard about the Indian criminal justice system as such,
the findings and observations in the two volumes lend weight to that argument in the con-
text of the death penalty.

The aim of this Report is to draw attention to the fact that a meaningful national conversation
on the death penalty cannot be limited to the heinousness and brutality of the crimes
involved. It must also involve a rigorous and frank evaluation of the criminal justice system
that is used to ad- minister the death penalty and a recognition of the structural realities that
operate within it.

1.2 BACKGROUND AND STATEMENT OF THE PROBLEM

Death penalty has existed since antiquity. Anthropologists even claim that the drawings at
Valladolid by prehistoric cave-dwellers show an execution. Death penalty could have had its
origins in human sacrifices. In positive law, capital punishment can be traced back as early as
1750 BC, in the lex talionis of the Code of Hammurabi. The Bible set death as the
punishment for such crimes as magic, violation of the Sabbath, blasphemy, adultery,
homosexuality, relations with animals, incest and rape1. As far as India is concerned, the
provisions relating to capital punishment are embodied in Indian Penal Code (IPC), 1860 and
Criminal Procedure Code (CrPC), 1973. The IPC is the substantive law, which suggests the
offences, which are punishable with death sentence. The CrPC is the procedural law, which
explains the procedure to be followed in death penalty cases. The IPC provides capital
punishment for eight categories of offences namely, waging war against the Government of
India (Section 121), abetting mutiny by a member of the armed force (Section 132),
fabricating false evidence with the intent to procure conviction of a capital offence, with the
death penalty applicable only if an innocent person is in fact executed as a result (Section

1
Schabas, William A. The abolition of the death penalty in international law. Cambridge University Press, 2002.

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194), murder (Section 302), murder committed by a life convict (Section 303), abetting the
commission of suicide of a child or insane person (Section 305), attempted murder actually
causing hurt, when committed by a person already under sentence of life imprisonment
(Section 307) and dacoity with murder (Section 396)2. There are also state laws within India
which can be used to provide death sentence. The approach of the Indian courts is
summarized well in “A Guide to Sentencing in Capital Cases”3 .

The Indian Supreme Court upholds the constitutionality of Section 302 of the IPC which
provides for the death penalty as an alternative sentence to life imprisonment for certain kinds
of murder. But it did so on the express basis that the “death sentence is constitutional if it is
prescribed as an alternative sentence for the offence of murder and if the 8 normal sentence
prescribed by law for murder is imprisonment for life”.4 In other words, life imprisonment is,
as a normal rule, the appropriate sentence for murder and the death penalty can only be
justified in the “rarest of rare” cases where, for special reasons in the individual case, the
court is compelled to take the exceptional course of imposing the death penalty rather than
the life sentence. The majority concluded that Section 302 of the IPC is valid for three
reasons: Firstly, that the death sentence provided for by Section 302 is an alternative to life
imprisonment; secondly, that special reasons have to be stated if the normal rule is departed
from and the death sentence has to be imposed; and thirdly, because the accused is entitled to
be heard on the question of sentence. The last of these three reasons becomes relevant only
because of the first of these reasons. In other words, it is because the court has an option to
impose either of the two sentences, subject to the rule that the normal punishment for murder
is life imprisonment, that it is important to hear the accused on the question of sentence.5

David Garland quotes a Philadelphia journalist from 1812 who said, “So much has been
written and said on the subject of capital punishments that it seems almost like presumptive
vanity to pursue the topic any further.” Further Garland says that yet after two and a half
centuries of moral debate and four decades of constitutional argument, the one thing that
seems indisputable is that the death penalty produces an endless stream of discourse.6 Death
penalty has produced endless discourse in the context of prisons, prisoners and punishment.

2
Areti, Krishna kumar. “ capital punishment and statutory frame work in india”
3
Fitzgerald, QC Edward & Starmer, QC Keir. “A Guide to Sentencing in Capital Cases”. The Death Penalty Project Ltd, London. 2007
4
Bachan Singh v. State of Punjab, (1980) 2 SCC 684: AIR 1980 SC 8
5
Mithu v. state of Punjab (1983)AIR 473,1983 SCR (2)690
6
Quoted in Orlando News, October 25, 2006 cited in Garland, David. Peculiar Institution: America's Death Penalty in an Age of Abolition.
Harvard University Press, 2010.

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Further it has also created a vast amount of debate and discussion in the legal arena about the
validity of death penalty, right to life, torture and so on and so forth. Numerous theorists have
described and analysed prisons as a society; however the study limits itself to three theorists
namely Goffman, Foucault and Sykes. Goffman is one of those theorists who have articulated
the concept of prison while articulating the concept of ‘total institution7’. Foucault has written
extensively about prisons and I take the principles of prisons from Foucault where he
describes prison as a ‘complete and austere institution8’. Sykes is a sociologist who has
written about prisoners and staff in a maximum security prison9.

Punishment has been awarded in various forms – torture, solitary confinement, capital
punishment and imprisonment. Garland writes extensively about the sociology of
punishment. He writes that it is a known fact through the work of Foucault and Marx that
punishment is a raw exercise of power. Nevertheless, Garland argues that punishment is not
just an exercise of power rather it is an expression of moral community and collective
sensibilities, in which penal sanctions are authorised response to shared values individually
violated. Torture and solitary confinement has been expounded in historic, academic and
legal documents and literature. Sykes describes the pains of imprisonment and there are many
researchers who have studied the effects of imprisonment.

Moreover, the social and economic groupings in society are not evenly represented in the
prison populations. In most countries one can discover the marginalised groups of society by
analysing the prison population. Invariably a disproportionate number of prisoners come from
the minority groups. In Australia they are the Aboriginals; in New Zealand the Maori; in
Central Europe, Roma or known otherwise as Gypsies 10. This focse grew with the
development of theories that deal with the changing socio-economic, political and historical
conditions that have led to incarceration of marginalised groups. The concerns about large
number of prisoners behind bars drives one to move the analysis beyond death row prisoners
themselves and observing other factors that incarcerate the marginalised. In doing so, it
highlights the dark underbelly of the prison regime which imprisons the socially
marginalised.

7
Hacking, Ian. "Between Michel Foucault and Erving Goffman: between discourse in the abstract and face-to-face interaction." Economy
and Society 33, no. 3 (2004): 277-302.
8
Foucault, Michel. "Discipline and punish: the birth of the prison (tr. A. Sheridan)." London: Allen Lane Penguin (1977).
9
Sykes, Gresham M. The society of captives: A study of a maximum security prison. Princeton University Press, 1958.
10
Coyle, Andrew. Understanding prisons. Open University Press, 2005. 14

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Furthermore, the concept of ‘dignity’ is an omnipresent component of debates about capital
punishment. It is a ‘vague but powerful idea’ that influence and define the direction of the
death penalty dialogues, in no small part because it vagueness and power enable it to be
involved in support of myriad different views. The most commonly accepted understanding
of dignity is the one that depicts it is inalienable element of humanity and, without which a
person ceases to have any worth- physical, physiological or moral . Oh% is nothing without
his/her dignity. Dignity is a kind of intrinsic Word that belongs equally to all human beings.

At a basic level kind of punishment is morally problematic because it involves applying

punitive measure to contain individuals does that have been determined do you have engaged
in proscribe activities measure with society deems immoral if applied to anyone else there is
something about the argument that dignity inalienable element of humanity that intensifies
these problems. If every human being is a dignity equal – insofar as they automatically
process dignity by virtue of being human – then surely and individuals dignity is threatened
by differential treatment. Differential treatment that is punitive – and as such is undesirable to
the recipient – enhance the threat to dignity . in this respect, there can be no greater punitive
act of indignity than an execution. Alan Gewirth suggests that humans have such dignity
regardless of how they are treated certain modes of treatment may Violet but not removed
that dignity Gewirth suggest that it is indeed true but and when the treatment is question is
capital punishment.

Why is a study which captures the voices of prisoners on death row important? Would it
change public opinion or the opinion of the policy makers to change the legislations
regarding death penalty? I would rely on the statement of Justice Suresh that the state does
not know the wo/man, at all, excepting the crime that s/he has been charged with. This study
thus explores the lives of the prisoners on death row and attempts to bring out their voices so
that we gain an insight into their lives without their crimes that are reported or the ‘facts’
pertaining to them from legal documents. Literature surrounding prisoners often implies that
prisoners in general are socially-excluded and marginalised. These factors not only affect the
prisoners on death row but also their families, the state which houses them and the society at
large which pays taxes to run these institutions. The issue of the prisoners on death row

5|Page
becomes complicated from the time the individuals confront the state machinery which is the
criminal justice system namely the police, prison and court.

These problems commence with their arrest and continue till they are on death row. It is
important to understand more about prisoners on death row as it might aid to change
perceptions of prisoners on death row where one might go beyond the barbaric relic of eye
for an eye and a tooth for a tooth to a view that death penalty might not be a solution to
stopping crimes. The renewed perception about the prisoners might enable one to view them
with humane lenses and find out the person behind the reported crimes or alleged stories or
convicted crimes. This study is also important because the demographic background of the
prisoners will be explicated and thus one can observe the class, caste, religious, educational,
occupational and gender background of the prisoners on death row. Also this study captures
the experiences of prisoners while they are on the death row which buffers a major gap in the
existing literature. Additionally, the life on death row is a mystery to the one who is not

on death row. There have been studies examining the lives on death row but one of the gaps
in the literature is that none has tried to understand the concept of dignity through the
perceptions or experiences of prisoners themselves. This study also attempts to identify the
gaps and also explore the unexplored.

With the above background, the problem of the statement of this study is that prisoners on
death row are socially marginalised and an excluded class who undergo the pains of
imprisonment in a ‘total’, ‘complete’ and ‘austere’ institution; entangled in the interlace of
state machinery while being wedged in the predicament of death and dignity. Subsequently,
this leads me to look at the lives of these prisoners on death row with lenses that would
expose if the dignity of these prisoners has been upheld while confronting the criminal justice
system and while surviving the death row. According to the latest Government statistics there
are 477 prisoners on death row currently in India.

In the light of the recent public opinion on death penalty and the number of people waiting
for execution in India, the study “Voices of prisoners surviving the death row in India” is
crucial. The guiding central research question embodied within the above context is “Is the
dignity of the prisoners upheld while confronting the criminal justice system and while
surviving the death row?” The more specific contextual questions are: What are the
perceptions and experiences of the social life of prisoners on death row? What are the stages

6|Page
that the prisoners experience before being sentenced to death? How do the prisoners perceive
and experience the treatment received by the criminal justice system during these stages?
How do the prisoners perceive and experience their conditions on the death row? How do the
prisoners survive each day on the death row? There are several ways to find answers to the
above questions; nevertheless, I have adopted the following methodology in this study.

1.3. RESEARCH METHODOLOGY

In order to explore the way the prisoners on death row experience and perceive their lives and
make meaning of that world, a design which encapsulates their lives was implemented.
were not anticipated a priori and enabled exploration of the research topic from This
approach allowed access to the contents that the standpoint of the research population.
Qualitative methodology and the phenomenological semi-structured interview were used to
collect and analyse information from the participants. This study employed a qualitative
approach using the theories of symbolic interactionism and phenomenology. The data from
the prisoners was collected by visiting the prisoners on death row. The prisoners who wanted
to talk more than once were allowed to talk to me, since I went to each prison at least more
than once. The interviews were open-ended and sought to map the processes leading to death;
their perception and experience on social and legal stages as prisoners on death row and the
treatment they received on death row.

1.4. SAMPLING AND DATA COLLECTION

The data was collected over a period of five months (February 2011 to July 2011) from
sixteen prisons based in six different states in India. The participants in the study consisted of
111 purposively selected Indian prisoners of which one was a woman. There were also three
women prisoners in Maharashtra during my data collection phase however; citing ‘security’
reasons I was not allowed to interview them by the state. The permission to interview the
prisoners was sought from the Inspector General Prisons or Home Affairs of the particular
State Government. Once the permissions were received, the prison departments were
contacted and a time was fixed to interview prisoners. Based on general guidelines to ensure

7|Page
that all those being interviewed are subject to similar stimuli and, thereby, allowing for
common base for data analysis, the semi-structured interview was found to be the most
appropriate research tool to achieve the main objectives of the study.
ensure consistency across the interview, I facilitated each conversation. The design of the
interview was tentative and modified in accordance with new findings – resulting from the
flexible way of questioning. This flexibility contribute to the quality and credibility of the
interview. I made notes during the interviews with the consent of the participants as no tape-
recorder was allowed inside the prison. The interviews were held in various parts of the
prison – some on the death row, some in the superintendent’s office and some in work sheds
and a few in prisons classrooms. Each interview lasted for an average of 25 minutes.
Prisoners were encouraged to share their experiences and perceptions than describing their
case details. These were conducted in a setting conducive to a sense of interpersonal
involvement. The table (Table 1) below describes the number of prisons for which permission
was received and the actual number of prisons visited. There is a deliberate omission of
information on prisoners on death row in each prison as this could lead to identify them.
However the highest number of prisoners was in Karnataka followed by Maharashtra, Tamil
Nadu, Kerala, Punjab and Assam.

1.4. DATA ANALYSIS

Due to the essentially qualitative nature of the data, the data was subjected to content
analysis. I adopted tesch’s proposed steps in date analysis with the data divided into main
themes such as socio – demographic profile , arrest, police custody court room experiences,
judicial custody (prison), media, death row, lawyers, family, death sentence, death row
phenomenon, dignity and other information emerging from interviews. The main themes
were identified and abbreviated as codes. The codes were then written next to the appropriate
segment of the text and then the organisation of the data was observed to check if new
categories or codes emerged.

I found the most descriptive wording for the topics and covered them into categories. The
analysis is therefore essentially thematic and based on the categorization of content areas.
The system serves to pinpoint the most prominent experience and perception of prisoners that
characterize the research population. There are a number of limitation related to the
methodology and me is it researcher. The sampling process changed during the course of the
research, and it has been described in the methodology chapter. Also there are a set of ethical
8|Page
concerns due to the sensitive nature of the study which have been elaborated in the fourth
chapter.

1.4. CLARIFICATION OF TERMS

There are various terms used in the study which need clarification for a consistent
understanding of the topic. The following are a list of terms used throughout this study.

1.4.1. DEATH PENALTY/CAPITAL PUNISHMENT

Death penalty the ultimate punishment imposed for murder or other capital offense 11In India,
capital punishment is embodied in Indian Penal Code,121860 and Criminal Procedure Code,
1973 and one is executed by hanging13. The term death penalty and capital punishment are
used interchangeably in this study.

1.4.2. HUMAN DIGNITY

Human dignity is the essential feature which distinguishes human beings from other
creatures. Human dignity and the uniqueness of the human being are grounded in human free
will, in the capacity for moral choice and individual autonomy. Inherent in all human beings,
human dignity is the moral and philosophical justification for equality and other universal
human rights14.

1.4.3. DEATH ROW PHENOMENON/SYNDROME

The “death row phenomenon” or “death row syndrome” is a combination of circumstances

found on death row that produces severe mental trauma and physical deterioration in
prisoners under those sentences. This phenomenon or syndrome is a result of the harsh
conditions experienced on death row, the length of time that they have experienced, and the
anxiety of awaiting one’s own execution15. Other associated factors that contribute to the
mental trauma include a cramped environment of deprivation, arbitrary rules, harassment, and
insolation from death.16

1.4.4. DEATH ROW

Death row is the cell or block of cells in which prisoners condemned to death are held while
awaiting execution. There may be within this death row one or more “death cells”, special
units in which the condemned person is kept for a period of hours or a few days immediately

11

12

13

14

15

16

9|Page
prior to imposition of the sentence. Death row is a prison within a prison, physically and
socially isolated from the prison community and the outside world.17

1.4.5. DEATH ROW PRISONER

Death row prisoner is a prisoner sentenced to death and is normally segregated from other
convicts serving fixed terms of imprisonment. The reason for this is somewhat obscure.
There may be a suggestion that the individual is already a “dead man” and thus no longer
belongs with the living. Another explanation may be the security of other prisoner and prison
guards, for whom exposure to a desperate individual with literally nothing to lose may be
dangerous.18

1.6. SCOPE AND LIMITATIONS OF THE STUDY

There are several scopes and limitations of the study. One of the scopes of this study is that it
is limited to prisoners on death row. It did not include prisoners whose sentences have been
commuted from death to life sentence. The main justification for this scope was time
constraints. In addition to these experiences and perceptions of prisoners who are not
currently under the sentence of death vary from prisoners who are presently on the death row.
Some of the prisoners in a previous study that I conducted on death row prisoners19 have
received a commutation of their death sentence to life imprisonment. The death sentence
commuted to life imprisonment prisoners have different concerns such as finishing the
sentence soon, going on parole or furlough whereas the same prisoners were afraid of death
and could not talk about ‘normal’ life while they were on death row.

The study is called “Voices of death row prisoners surviving the death row in India.”
Nevertheless there is no claim that the issues and findings discussed in the study pertain to
the whole of India. Though there were 21 states20 housing death row prisoners when I began
fieldwork from February 2011 to July 2011, I visited only six of these states. This was
because of time restrictions and because my entry into these prisons relied on the permissions
I received from these states. It should also be noted that India is not a homogenous country; it
has 28 states with over 28 languages and over 100 dialects. Additionally, this study could not
include two regions - Eastern and Central India. The Eastern Region has the highest number
of death row prisoners21 and the central region has one of the highest numbers of tribal
population in India22.

Concurrently, the study focused on death row prisoners. The data would have been richer in
case there was an explicit method to interview prison officials who are the custodians of
prisoners. However in my previous research experience23, prison official had refused to
participate in the study. Therefore all my interactions with the prison officials are recorded

17

18

19

20

21

22

23

10 | P a g e
only as memos which are used in presenting the findings of the data and hence conducting
expert interviews with them had to be excluded from the study.

One of the poignant limitations of this study was not being able to interview women prisoners
on death row in the states where I received permission to conduct interviews. Women
prisoners throughout history have been researched less than their male counterparts. Even
though there are very few women prisoners on death row24, research about the women
prisoners would have given new insights about women and their incarceration. One of the
reasons for not being able to interview women prisoners was because of a barricade put by
the state. For instance, the State of Maharashtra in one city allowed me to interview prisoners
who are on death row convicted for the murder of their family members. The rationale that
the state used was that mine was a ‘sociological’ study and according to the state, sociology
only meant ‘family problems’. Hence women prisoners and other male prisoners who were
convicted for other crimes than ‘family murder’ were not allowed to be interviewed. Hence
women prisoners on death row in this State who were convicted of other crimes were not
allowed to be interviewed.

One of the other limitations of the study was the inaccessibility of data and materials in India.
Up to date information on the death penalty in India is not published, which is exacerbated by
the fact that there is absence of accurate criminal statistics in India. Access even through the
Right to Information (RTI) Act, 2000 is denied giving tenuous reason. Under the provisions
of this Act, any citizen may request information from a "public authority" (a body of
Government or "instrumentality of State") which is required to reply expeditiously or within
thirty days. Upon seeking information of death row prisoners, one of the replies under the
RTI Act, 2000 dated 12th may , 2005 the state refused to provide information on the grounds
that, “some of the persons who have been executed had been convicted for various offences
having prejudicial effect on the sovereignty and integrity of India and security of National
Capital Territory of Delhi and international relations and could lead to incitement of an
offence.” The reply also claims that the information “would not serve any public interest”.
This is the first instance where any government authority has stated, in writing, that
information related to the death penalty is effectively a state secret. It is interesting that the
government is going as far as using defenses of national sovereignty and international
relations to deny information relating to judicial executions that have been carried out. By
doing so the Indian state also completely disregards the clear international obligation to make
public all information relating to the death penalty.25

Like most of the research studies, time frame was a factor which was a limitation of the
study. It also has to be noted that there were changes in the situation of death row prisoners
who were interviewed during the study. Some were released for being juveniles, some
acquitted from their cases in a higher court, and many of the prisoners had their sentences
commuted to life sentences during the course of the study. Parts of the data could be outdated
or there could be a change in the status of death penalty in India if death penalty is abolished
from certain states or whole of India. Hence this work should be seen as a work in progress
that can be updated by other studies in future. In addition to this scope and limitation, there
24

25

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are several methodological and ethical concerns which have been discussed in detail in
further chapters.

CHAPTER – II

HISTORY OF CAPITAL PUNISHMENT IN INDIA

2.1 DEATH PENALTY IN THE REALM OF LAW

This section begins with an overview of death penalty in international law. It states the use of
death penalty globally and the methods of execution used in various countries. It further
mentions a few international conventions, standards and norms related to death penalty with
particular reference to India. The second part of this section orients us with an overview of
the legal framework of death penalty in India. This part discusses the laws that govern India
and the court systems. Further it discusses the safeguards during the arrest, detention,
interrogation and against torture. Besides, it also briefs the relevant laws and recent highlights
on death penalty in India. There are also guidelines for awarding death penalty which has
been briefed along with the possible stages of appeal against this sentence. Further it
mentions what happens when one is sentenced to death and highlights the fundamental rights
of the condemned prisoners. Discussing how prisons are created in India or an in-depth
analysis of law does not contain the scope of this study.

2..2AN OVERVIEW OF DEATH PENALTY IN INTERNATIONAL LAW

The development of human rights standards in relation to the death penalty has been on-going
since the establishment of the United Nations (UN). Although there is no international law
prohibiting the use of capital punishment/death penalty, many international legal standards
strictly limit its application. The majority of the countries where people were sentenced to
death or executed, the death penalty was imposed after proceedings that did not meet
international fair trial standards, often based on “confessions” that were allegedly extracted
through torture or other duress. This was particularly the case in Belarus, China, Iran, Iraq,

12 | P a g e
North Korea, and Saudi Arabia. In Iran and Iraq, some of these “confessions” were then
broadcast on television before the trial took place, further breaching the defendants’ rights to
presumption of innocence. The mandatory death penalty continued to be used in India, Iran,
Malaysia, Pakistan, Singapore, Trinidad and Tobago and Zambia. Mandatory death sentences
are inconsistent with human rights protections because they do not allow any possibility of
taking into account the defendant’s personal The following methods of executions were used
in 2010: beheading (Saudi Arabia), electrocution (USA), hanging (Bangladesh, Botswana,
Egypt, India, Iran, Iraq, Japan, Malaysia, North Korea, Singapore, Sudan, Syria), lethal
injection (China, USA), shooting (Bahrain, Belarus, China, Equatorial Guinea, North Korea,
Palestinian Authority, Somalia, Taiwan, USA, Viet Nam, Yemen). There were no reports of
judicial executions carried out by stoning, although new death sentences by stoning were
reportedly imposed in Iran, the Bauchi state of Nigeria and Pakistan. At least 10 women and
four men remained under sentence of death by stoning in Iran in 2011. Public judicial
executions were known to have been carried out in Iran, North Korea and Saudi arabia

India is a party to the International Covenant on Civil and Political Rights (ICCPR) as well as
the International Covenant on Economic, Social and Cultural Rights (ICESCR). However,
India is not a signatory to many other international conventions or mechanisms like the UN
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, the Convention on the Status of Refugees, Optional Protocols to the ICCPR and
the protocol relating to the status of refugees. In the 67 th general assembly held on 19th
November 2012 , there was a call for moratorium on execution, with a view to abolishing
death penalty. The recorded vote of 110 was in favour to 39 against, with 36 abstaining. The
General Assembly called on States to respect international standards that provided safeguards
guaranteeing the protection of the rights of persons facing the death penalty, as set out in the
annex to Economic and Social Council resolution 1984/50 (1984). voted for retaining the
death penalty in the law.

India

Article 6 (1) of the ICCPR provides that every human being has the inherent right to life. This
right shall be protected by the law. No one shall be arbitrarily deprived of his life. It further
states that it should be imposed only for the most serious crimes in accordance with the law
in force at the time of the commission of the crime. Article 6 (2) of the same covenant
provides that, “In countries which have not abolished the death penalty, sentence of death
13 | P a g e
may be imposed only for the most serious crimes in accordance with the law in force at the
time of the commission of the crime”. Article 6 of ICCPR is non-derogable in its entirety;
any trial leading to the imposition of the death penalty during a state of emergency must
conform to the provisions of the Covenant, including all the fair trial guarantees provided in
Article 14. In cases of trials leading to the imposition of the death penalty scrupulous respect
of the guarantees of fair trial is particularly important. The imposition of a sentence of death
upon conclusion of a trial, in which the provisions of Article 14 of the ICCPR have not been
respected, constitutes a violation of the right to life. For example , adenial of legal aid by the
court reviewing the death sentence of an indigent convicted person constitutes not only a
violation of article 14, paragraph 3 (d), but at the same time also of article 14, paragraph 5, as
in such cases the denial of legal aid for an appeal effectively precludes an effective review of
the conviction and sentence by the higher instance court. The right of appeal is also of
particular importance in death penalty cases.

The Second Optional Protocol to the ICCPR (1989) aims at the abolition of the death penalty;
one of most important provisions of the Second Optional Protocol is that reservations about
abolishing the death penalty are not allowed, except for those concerning the death penalty
for military crimes committed during wartime. Countries are asked to describe steps they
have taken to put this Protocol into effect, in their reports to the Human Rights Committee.
The Optional Protocol provides States parties to the Covenant with the option of recognizing
the Human Rights Committee as qualified to receive and examine communications from
individuals about issues related to the implementation of the Protocol. Currently, there are 73
States parties to the Protocol.India has ratified the ICCPR on 10 April 1979 but has not
signed the Optional Protocol. Bringing children in the light of death penalty, the Convention
on the Rights of the Child (CRC), 1990 is the first legally binding international instrument to
incorporate the full range of human rights—civil, cultural, economic, political and social
rights.

Article 37 of the CRC provides that "No child shall be subjected to torture or other cruel,
inhuman or degrading treatment or punishment. Neither capital punishment nor life
imprisonment without possibility of release shall be imposed for offences committed by
persons below eighteen years of age." Currently, there are 193 States parties to the
Convention. This implies that the and social rights. prohibition on the execution of children
is universal. India is a party to this convention, at the same time India has a progressive child

14 | P a g e
rights law relating to juveniles in conflict with law and children in need of care and
protection. This act also prohibits the state to arrest any child below the age of 18 or try the
child in an adult court.

The standards and norms are sets of non-binding rules, principles, and guidelines relating to
different aspects of the criminal justice and constituting soft law. Most standards and norms
were adopted by a resolution of the General Assembly or the Economic and Social Council.
There are several relevant standards and norms on the death penalty but the most relevant one
is

he “Safeguards guaranteeing protection of the rights of those facing the death penalty”. In
1984 the Economic and Social Council adopted this in its resolution 1984/50 of 25 May 198

1. In countries which have not abolished the death penalty, capital punishment

may be imposed only for the most serious crimes, it being understood that their scope
should not go beyond intentional crimes with lethal or other extremely grave
consequences.

2. Capital punishment may be imposed only for a crime for which the death penalty is
prescribed by law at the time of its commission, it being understood that if,
subsequent to the commission of the crime, provision is made by law for the
imposition of a lighter penalty, the offender shall benefit thereby.
3. Persons below 18 years of age at the time of the commission of the crime shall not be
sentenced to death, nor shall the death sentence be carried out on pregnant women, or
on new mothers, or on persons who have become insane.
4. Capital punishment may be imposed only when the guilt of the person charged is
based upon clear and convincing evidence leaving no room for an alternative
explanation of the facts.
5. Capital punishment may only be carried out pursuant to a final judgment rendered by
a competent court after legal process which gives all possible safeguards to ensure a
fair trial, at least equal to those contained in article 14 of the International Covenant
on Civil and Political Rights, including the right of anyone suspected of or charged
with a crime for which capital punishment may be imposed to adequate legal
assistance at all stages of the proceedings.

15 | P a g e
 6. Anyone sentenced to death shall have the right to appeal to a court of higher
jurisdiction, and steps should be taken to ensure that such appeals shall become
mandatory.
7. Anyone sentenced to death shall have the right to seek pardon, or commutation of
sentence; pardon or commutation of sentence may be granted in all cases of capital
punishment.
8. Capital punishment shall not be carried out pending any appeal or other recourse
procedure or other proceeding relating to pardon or commutation of the sentence.
9. Where capital punishment occurs, it shall be carried out so as to inflict the minimum
possible suffering.

There are standards and norms such as the UN Standards Minimum Rules (SMR) on the
Treatment of Prisoners which says that the SMR also applies to the prisoners on death row
who are awaiting their execution and should have the same rights as other prisoners. Another
treaty called the UN Model Treaty on Extradition includes as a ground for refusal of
extradition the possibility that the death penalty shall be imposed in the requesting state. In
connection o extradition many states apply this ground for refusal. For example, the
European Union and individual nations have long opposed the death penalty as a matter of
principle, regardless of assurances that it would not be imposed on the person extradited.
Further the UN standard minimum rules for the administration of juvenile justice establishes
that capital punishment shall not be imposed for any crime committed by juveniles. However
amnesty international report. Claims that certain states ( yemen , China, Nigeria, Saudi
Arabia, Egypt, Abu Dhabi, Iran) continue to execute offenders that were children at the time
of the commission of the offence; this was sometimes accompanied by an attempt to hide the
real age of the person. In addition to this the Basic Principles on the Role of Lawyers
reiterates the importance of legal assistance in capital punishment cases in accordance with
article 14 of the ICCPR. The Draft United Nations Principles and Guidelines on Access to
Legal Aid in criminal justice systems state that states should ensure that anyone who is
arrested, detained or prosecuted for a crime punishable by a term of imprisonment or the
death penalty receives legal assistance and that the legal assistance is free of charge, if the
person cannot afford it, at all stages of the criminal justice process, including post-trial
proceedings.

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Though there are several other legal instruments that could be mentioned or analysed in
depth, this study limits itself to giving an overview of the international framework with
reference to death penalty. Further this chapter briefs the legal framework in India with
specific reference to death penalty.

2.3. AN OVERVIEW OF THE LEGAL FRAMEWORK IN INDIA

At the time when the British came to India, the criminal law in existence was the
Mohammedan law. This law, which had replaced the Hindu law, continued to be the basic
law in the Mofussil until the enactment of the Indian Penal Code (Act XLV of 1860), but it
had, in the meanwhile, been modified very extensively by the successive Regulations and
Acts of the Presidency Court, viz., Calcutta, Madras, and Bombay and the Central
Governments. In the beginning, the British engrafted the Muslim system of administration,
but were faced with much difficulty. As a result, the Moffussils as well as the Presidency
Courts gradually began to turn to the English law for guidance and help. Thus, the criminal
law administered in the Presidency towns, came to be in practice, the English criminal law. In
Bombay, Portuguese law first replaced the Mohmmedan law. Then followed the Company's
law of 1670, and from that time the English criminal law was applied, until, under a Charter
of 24th September, 1726, the Mayor's Court was set up, and the criminal law of England was
authoritatively administered in that presidency.

In Madras and Calcutta, criminal jurisdiction was originally exercised over the Indian
inhabitants through the Courts of the East India Company in its capacity as Zamindar.
Apparently , English criminal law was applied more and more extensively in these Courts as
time went by, though in those towns there was no definite substitution of that law for the
Mohammedan criminal law. In 1726, Mayor's Courts were established in Madras and
Calcutta under the same Charter as that which set up the similar Court in Bombay. However,
in adopting the British system, each of the Presidency courts, namely, Bombay, Calcutta and
Madras followed an independent course of its own. The result was a chaotic mass of
conflicting and contradictory decisions on similar points. The regulations passed by different
Presidencies differed widely in their scope and contained different provisions. For instance,
in the Bengal Presidency, serious forgeries were punishable with imprisonment for a term
double the term fixed for perjury; whereas in the Bombay Presidency, perjury was punishable
with imprisonment for a term double the term fixed for the most aggravated forgeries.

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Likewise, in the Madras Presidency, the two offences were exactly on the same footing.
There was utter disorder and confusion in the administration of criminal justice.

To streamline the legal system in the then British India the Governor-General of India in
Council by virtue of the authority vested in him under section 53 of the Government of India
Act, 1833 (3 and 4 Will, 4, c.85) appointed the "the Indian Law Commissioners" in 1834 to
inquire into the then existing state of the law and to suggest a comprehensive Penal Code for
India. Thus in 1834 the First Law Commission of India was constituted with Lord Macaulay
as its President to prepare the Penal Code for India. It received the assent of the Governor-
General in Council on October 6, 1860 and the Indian Penal Code (Act XLV of 1860) came
into force on January 1, 1862. The genesis of a uniform system of criminal jurisprudence for
the whole of India is to be found in the form of Indian Penal Code, 1860 and Criminal
Procedure Code, 1973.Since then, the law has undergone many amendments in order to
incorporate a lot of changes and judicial clauses for the improvement of justice delivery. The
Criminal Procedure Code, 1973 (CrPC) is the main legislation on procedure for
administration of substantive criminal law in India. It was enacted in 1973 and came into
force on 1 April, 1974. It made the death sentence an exceptional punishment and required
that judges record ‘special reasons’ where they did not award life imprisonment. This was a
clear statement from the legislature that the death penalty was now to be an exceptional
punishment while life imprisonment would be the obvious punishment for murder.

The fountain source of law in India is “The Constitution of India” which , in turn, gives due
recognition to statutes, case law and customary law consistent with its dispensations. Statutes
are enacted by Parliament, State Legislatures and Union Territory Legislatures. There is also
a vast body of laws known as subordinate legislation in the form of rules, regulations as well
as by-laws made by Central and State Governments and local authorities like Municipal
Corporations, Municipalities, Gram Panchayats and other local bodies. This subordinate
legislation is made under the authority conferred or delegated either by Parliament or State or
Union Territory Legislature concerned.

The decisions of the Supreme Court are binding on all Courts within the territory of India. As
India is a land of diversities, local customs and conventions which are not against statute,
morality, etc. are to a limited extent also recognized and taken into account by Courts while

18 | P a g e
administering justice in certain spheres. It is one of the worlds lengthiest written constitutions
with 395 articles and 8 schedules. It contains the good points taken from the constitutions of
many countries in the world. It was passed on 26 November 1949 by the 'The Constituent
Assembly' and is fully applicable since 26 January 1950. The Constituent Assembly had been
elected for undivided India and held its first sitting on 9th December1946, re-assembled on
the 14th August 1947, as The Sovereign Constituent Assembly for the dominion of India. In
regard to its composition the members were elected by indirect election by the members of
The Provisional Legislative Assemblies (lower house only). At the time of signing 284 out of
299 members of the Assembly were present.

In a written Constitution, there are two kinds: one is a unitary type, where there is only one
government to the entire nation (Examples are England, France, etc.). The other one is federal
type, where the powers of the nation are divided between the Centreand States (Examples are
India, USA, Switzerland, etc.). Regarding legislative relations, there is threefold division of
powers in the Constitution. We have followed a system in which there are two lists of
legislative powers, one for the Centre and the other for the State, known as the Union List
and the State List, respectively. An additional list called the Concurrent List has also been
added. The Union List which consists of 97 subjects of national interest is the largest of the
three lists. Some of the important subjects included in this list are: Defence, Prisons,
Railways, Post and Telegraph, Income Tax, Custom Duties, etc. The Parliament has the
exclusive power to enact laws on the subjects included in the Union List for the entire
country. The State List consists of 66 subjects of local interest. Some of the important
subjects included in this List are Trade and Commerce within the State, Police, Jails,
Fisheries, Forests, Industries, etc.

The State Legislatures have been empowered to make laws on the subjects included in the
State List. The Concurrent List consists of 47 subjects of common interest to both the Union
and the States. Some of the subjects included in this list are: Stamp Duties, Drugs and Poison,
Electricity, Newspapers etc. Both the Parliament and the State Legislatures can make laws on
the subjects included in this list. But in case of a conflict between the Union and the State law
relating to the same subject, the Union law prevails over the State law. Power to legislate on
all subjects not included in any of the three lists vests with the Parliament. Taking into
consideration of unity and security of the nation, the founding fathers (sic) of our
Constitution have given more powers to the Centre. The State Governments have very limited

19 | P a g e
powers. Financially the States are dependent on the Centre. Hence our Constitution is more
unitary, than federal in its nature. It is rightly termed as quasi-federal by some writers. India.
Further we move on to look at the function of the courts in India.

Chapter - III

CONTITUTIONAL VALIDITY

3.1 CAPITAL PUNISHMENT – CONTITUTIONALITY IN INDIA

Article 21 - Protection of life and personal liberty. – No person shall be deprived
of his life or personal liberty except according to procedure established by law.
Life and personal liberty. – Article 21, even though couched in negative language,
confers on every person the fundamental rights to life and personal liberty and has
become an inexhaustible source of many rights. 26 These rights are as much available
to non-citizens as to citizens and to those whose citizenship is unknown27 and our
courts assign them paramount position among the rights.28
Life – The right to life which is the most fundamental of all is also the most difficult
to define. Certainly it cannot be confined to a guarantee against the taking away of
life; it must have a wider application. With reference to a corresponding provision in
the 5th and 14th Amendments of the US Constitution, which says that no person shall
be deprived of his “life, liberty, or property, without due process of law.” in Munn v.
Illinois29, Field J spoke of the right to life in the following words:
By the term ‘life’, as here used, something more is meant than mere animal existence.
The inhibition against its deprivation extends to all those limbs and faculties by which
life is enjoyed. The Provision equally prohibits the mutilation of the body by the

26
The process of reading new rights in Article 21 primarily started in Meneka Gandhi v. Union of India, (1978) 1
SCC 248: AIR 1978 SC 597,620 followed by many cases in quick succession which have been noted in the
discussion that follows.
27
Bhim Singh v. Union of India, (2012) 13 SCC 471.
28
Kehar Singh v. Union of India, (1989) 1 SCC 204: AIR 1989 SC 653.
29
24 L Ed 77: 94 US 113 (1877).

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 amputation of an arm or leg, or the putting out of an eye, or the destruction of any
other organ of the body through which the soul communicates with the outer world.
This statement, which has been repeatedly quoted with approval by our Supreme
Court,30 has been further expanded in Francis Cora lie Mullin v. UT of Delhi 31
(Francis Cora lie), by the statement “that any act which damages or injures or
interferes with the use of any limb or faculty of a person, either permanently or even
temporarily, would be within the inhibition of Article 21”. In the same case, Bhagwati
J held:
We think that the right to life includes the right to live with human dignity and all that
goes along with it, namely, the bare necessaries of life such as adequate nutrition,
clothing and shelter and facilities for reading, writing and expressing one in diverse
forms, freely moving about and mixing and commingling with fellow human beings.32

3.2. Personal Liberty – The expression “Liberty” in the 5th and 14th Amendments to the
US Constitution is given a very wide meaning. It takes in all the freedoms that a
human being is expected to have.33 The Expression is not confined to mere freedom
from bodily restrain and “liberty under law, but extends to full range of conduct
which the individual is free to pursue. In contrast to US constitution, Article 21
qualifies “liberty” by “personal”, which leads to an inference that the scope of liberty
under our constitution is narrower than in the US Constitution. Seemingly that was the
impression drawn by some of the judges in A.K. Gopalan v. State of Madras 34.
Though that case was concerned about the constitutionality of preventive detention of
the petitioner which in any case was an infringement of the “personal liberty” even in
the narrowest sense of that term and therefore it may be said that the scope of
“personal liberty” was not an issue in that case, yet some of the learned judges
looking at the difference in the expression in the US and the Indian Constitutions and
relaying upon the meaning given to “personal liberty” by some English Jurists
concluded that “personal liberty” was confined to freedom from detention or physical

30
Kharak Singh v. State of U.P., AIR 1963 SC 1295, 1301, 1305; Sunil Batra v. Delhi Admn., (1978) 4 SCC 494: AIR
1978 SC 1675.
31
(1981) 1 SCC 608: AIR 1981 SC 764.
32
Ibid, (SCC) 619.
33
Munn v. Illinois, 24 L Ed 77:94 US 113 (1877).
34
AIR 1950 SC 27: 1950 SCR 88.

21 | P a g e
 restraint. But there was no definite pronouncement made on this point since the
question before the court was not so much the interpretation of the words “Personal
liberty” as the interrelation between Article 19 and 21.35
For the first time the meaning and scope of “personal Liberty” came up pointedly for
consideration in Kharak Singh v. State of U.P.36 (Kharak Singh). In that case validity
of certain police regulations which, without any statutory basis, authorized the police
to keep under surveillance persons whose names were recorded in the “history-sheet”
maintained by the police of persons who were or were likely to become habitual
criminals. Surveillance as defined in the impugned regulation included secret
picketing of the house, domiciliary visits at night, periodical inquiries about the
person, an eye on his movements, etc. The petitioner alleged that this regulation
violated his fundamental right to movement in Article 19 (1) (d) and “personal
liberty” in Article 21. For determining the claim of the petitioner the court, apart from
defining the scope of Article 19 (1) (d), had to define the scope of “personal liberty”
in Article 21.

3.3.Procedure establish by law

The expression “procedure established by law” was initially interpreted as procedure
prescribed by the law of the State. According, it required,37
1. Existence of an enacted law authorizing interference with the Life and Personal
Liberty.
2. The Law should be valid
3. The procedure laid down by the law must be followed.
In the absence of non-compliance of any of these conditions any deprivation of
life or personal liberty of a person by any authority violates Article 21.
Compared to the “due process” clause of the Fifth Amendment of the US
Constitution, which engaged the Constituent Assembly intensely and for long, the
ambit of the right to life and liberty in Article 21 was tried to be more definite
leaving less scope for the courts to dabble in speculations about the ambit of “due
process” as against the “procedure established by law”. In view of this difference
it is said that liberty under the US Constitution is wider or better protected than

35
Maneka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597, 620.
36
AIR 1963 SC 1295: (1964) 1 SCR 332.
37
A.K. Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88; Bishan Das v. State of Punjab, AIR 1961 SC
1570; Kharak Singh v. State of U.P., AIR 1963 SC 1295.

22 | P a g e
 under the Constitution of India. Beside the fact that the US Constitution does not
qualify “liberty” by “personal” it provides that a person cannot be deprived of his
liberty “without due process of law”. The US Supreme Court has interpreted the
guarantee to mean that the court would examine a law to ascertain if it is a just
and fair law in its procedure as well as substance.38
Our Supreme Court in the very first case on Article 21, A.K. Gopalan v. State of
Madras39 (A.K. Gopalan) held that the expression “procedure established by law”
means procedure enacted by a law made by the state. The majority in the court,
rejected the argument that the “law” in Article 21 is used in the sense of jus or lax,
i.e. the just law or the principles of natural justice on the analogy of “due process
of law” as interpreted by the US Supreme Court. That in effect amounted to
holding that Article 21 was a protection only against the executive and not against
the legislature. This interpretation was taken to its logical end in ADM, Jabalpur
v. Shivakant Shukla40, where the Supreme Court held that Article 21 was the sole
repository of the right to life and personal liberty against its illegal deprivation by
the executive and in case enforcement of Article 21 was suspended by a
presidential order under Article 359, the court could not enquire whether the
executive action depriving a person of his life or personal liberty was authorized
by law. The emergency and its consequences led to the rejection of the ruling
party for the first time in the Lok Sabha elections in early 1977. Later the
Supreme Court also in Maneka Gandhi v. Union of India 41 (Maneka Gandhi)
changed the existing understanding of Article 21. The court did that by
establishing a relationship between Article 14, 19 and 21 which had apparently
been denied in A.K. Gopalan42, particularly in respect of Article 19 and 21.43
The relationship between Article 19 and 21, as noted above, was first emphasized
by the minority in Kharak Singh44 though expressing doubts on the majority view
in A.K. Gopalan45, the court had already established such relationship between the
repealed Article 19 (1)(f) and 31 (1) of which the latter was expressed in similar
38
A.K. Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88; Willis, Constitutional law, 662.
39
AIR 1950 SC 27: 1950 SCR 88
40
(1976) 2 SCC 521: AIR 1976 SC 1207.
41
(1978) 1 SCC 248: AIR 1978 SC 597.
42
AIR 1950 SC 27: 1950 SCR 88
43
Lily Thomas v. Union of India, (2000) 6 SCC 224: AIR 2000 SC 1650, where the court said that the procedure
established by law, as mentioned in Article 21 of the Constitution, means the law prescribed by the legislature.
44
AIR 1963 SC 1295: (1964) 1 SCR 332.
45
AIR 1950 SC 27: 1950 SCR 88

23 | P a g e
 language as Article 21.46 The Argument of exclusiveness of fundamental rights as
expounded in A.K. Gopalan was finally rejected in Ruston Cavasjee Cooper v.
Union of India47 (Banks Nationalization case), though in that case also the
relationship between repealed Article 19(1)(f) and 31(2), not between Articles 19
and 21, was in issue. However, this decision was the main basis for establishing
the relationship between Article 19(1) (f) and 31(2), not between Article 19 and
21, was in issue. However, this decision was the main basis for establishing the
relationship between Articles 14, 19, and 21 in Maneka Gandhi 48. Bhagwati J,
who delivered the leading opinion in Maneka Gandhi, held that the law must now
be taken to be well settled that Article 21 does not exclude Article 19, and a law
prescribing a procedure for depriving a person of “personal liberty” will have to
meet to requirement of Article 21 and also of Article 19 as well as of Article 14.
In his exposition of the concept of “procedure” in Article 21 Bhagwati J was
inspired by the great equalizing principle enunciated in Article 14, which we have
already discussed, and extended its application to the nature and requirement of
the procedure under Article 21. He explained that the principle of reasonableness,
which is an essential element of equality or non-arbitrariness pervading Article
14, must also apply with equal force to the “procedure” contemplated by Article
21, that is, the procedure must be “right, just and fair” and not “arbitrary, fanciful
or oppressive”. In order that the “procedure” is right, just and fair”, it should
conform to the principles of “natural justice”, that is, “fair-play in action”. Hence,
it was held that any procedure which permits impairment of the constitutional
right to go abroad without giving a reasonable opportunity to show cause cannot
but be condemned as unfair and unjust. In the impugned case it was held,
however, that section 10(3)(e), Passports Act,1967, did not violate Article 21 as it
was implied in the provisions that the rules of natural justice would be application
in the exercise of the power of impounding a passport.

3.4 From “Procedure Established by Law” to “Due Procedure”

46
Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080, 1093. For a clear
application of that relationship, see, State of M.P. v. Ranoojirao Shinde, AIR 1968 SC 1053: (1968) 3 SCR 489.
47
(1970) 1 SCC 248: AIR 1970 SC 564, 593ff.
48
(1978) 1 SCC 248: AIR 1978 SC 597,622.

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 While Bhagwati J in the Menka Gandhi case 49, established the requirement of
reasonableness of procedure in Article 21 through Article 14, some of the judges
in that case and in some other subsequent cases have read such requirement in
Article 21 itself and particularly in the word “law” the conversion of “procedure
established by law” into “due Process of law” in US sense which the Constitution
makers had intended to avoid by replacing the latter expression by the former.
Thus in Maneka Gandhi50, Chandrachud J said that the procedure in Article 21
“has to be fair, just and reasonable, and fanciful, oppressive or arbitrary” 51 and
Krishna Iyer J said that “law” in Article 21 “is reasonable law, not any enacted
piece”52. Again in Sunil Batra v. Delhi Admn53. (Sunil Batra), Krishna Iyer J said,
“True, our Constitution has no ‘due process’ clause … but … after Cooper and
Maneka Gandhi the consequence is the same”54 and added that Article 21 is the
counterpart of the procedural due process in the US.55 In the same case speaking
for the rest of the court Desai J said:
 The Word ‘law’ in the expression ‘procedure established by law’ in Article 21
has been interpreted to mean in Maneka Gandhi case that the law must be
right, just and fair, and not arbitrary, fanciful or oppressive.56

In Jolly George Varghese v. Bank of Cochin 57, the Court, through Krishna Iyer J,
surmised that someday the question of the validity of Section 51 and Order 21 and
Rule 37 CPC, which authorize arrest and detention of judgment-debtor on the
application of the decree-holder, could be questioned under Article 21. Although
in the instant case, the court referred back the matter to the lower court with the
clarification that arrest and detention would violate Article 21 if the judgment-
debtor had no means to pay the decretal amount and did not evade its payment by
any mala fide or dishonest means or intentions.58 He said:59

49
Ibid.
50
Ibid.
51
Ibid.
52
Ibid, (SCC) 338.
53
(1978) 4 SCC 494: AIR 1978 SC 1675.
54
Ibid.
55
Ibid, (SCC) 541.
56
Ibid, (SCC) 574- 75. Emphasis added.
57
(1980)2 SCC 360: AIR 1980 SC 470. Also see, Ram Narayan Agarwal v. State of U.P., (1983) 4 SCC 276: AIR
1984 sc 1213.
58
The exemption is not available in case the defendant is capable of paying. See, Subrata Roy Sahara v. Union
of India, (2014) 3 SCC 470, 575.

25 | P a g e
  The high value of human dignity and the worth of the human person enshrined
in Article 21, read with Article 14 and 19 obligate that state not to incarcerate
except under law which is fair, just and reasonable in its procedural essence.

In Bachan Singh v. State of Punjab 60 (Bachan Singh), the court, by 4 to 1, upheld

the validity of death penalty under Section 302 IPC read with Section 354 CrPC
against the challenged based on Article 14, 19 and 21. For the majority, in the
light of the Maneka Gandhi case61, Sarkaria J rephrased Article 21 in the
following words.62
No person shall be deprived of his life or personal liberty except according to
procedure established by valid law.
In his dissent, expressed after more than two years, Bhagwati J turned to the
trinity of Article 14, 19 and 21 each of which, according to him, contained the
requirement of reasonableness and concluded:63
It is plain and indisputable that under our Constitution law cannot be arbitrary or
irrational and if it is, it would be clearly invalid, whether under Article 14 or
Article 19 or Article 21, whichever is applicable.
It is here that for the first time Bhagwati J clearly went beyond Article 14 to
establish the requirement of reasonableness and it is also here that he applied this
requirement for the first time to a law, not just procedural but substantive, and in
fact reached the conclusion that section 302 IPC read with the Section 354(3)
CrPC was “unconstitutional and void being violative of Article 14 and 21”.64
In Mithu v. State of Punjab65 (Mithu), a Constitutional Bench, for the first time
and unanimously invalidated a substantive law – Section 303 IPC – which
provided for the mandatory death sentence for murder committed by a life

59
Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360: AIR 1980 SC 470. Also see, Ram Narayan Agrawal
v. State of U.P., (1983) 4 SCC 276: AIR 1984 SC 1231, 367. Emphasis supplied.
60
(1980) 2 SCC 684: AIR 1980 SC 898. Affirmed in Jumman Khan v. State of U.P., (1991) 1 SCC 752: AIR 1991 SC
345.
61
(1978) 1 SCC 248: AIR 1978 SC 597,622
62
Bachan Singh v. State of Punjab, (1980) 2 SCC 684, 730
63
Bachan Singh v. State of Punjab, (1980) 3 SCC 24, 56. Emphasis supplied for similar conclusion on Arts. 14, 19
and 21 individually see, 51 and 54 respectively.
64
Bachan Singh v. State of Punjab, (1980) 3 SCC 24, 128.
65
(1983) 2 SCC 277: AIR 1983 SC 473.

26 | P a g e
 convict. Quoting from Maneka Gandhi, Sunil Batra 66 and Bachan Singh67, the
court observed:68
These decisions have expanded the scope of Article 21 in a significant way and it
is now too late in the day to contend that it is for the legislature to prescribe the
procedure and for the courts to follow it; that it is for the legislature to provide the
punishment and for the courts to impose it. … The last word on the question of
justice and fairness does not rest with the legislature.
After posing the question of reasonableness of Section 303 under Article 21, the
Court concluded69 that “it is difficult to hold that the prescription of the mandatory
sentence of death answers the test of reasonableness” and added that
A Provision of law which deprives the court the use of its wise and beneficent
discretion in a matter of life and death, without regard to the circumstances in
which the offence was committed and, therefore, without regard to the gravity of
the offence, cannot but be regarded as harsh, unjust and unfair.
Relying exclusively on Article 21 Reddy J concurred, “So final, so irrevocable
and so irresuscitable is the sentence of death that no law which provided for it
without involvement of the judicial mind can be said to be fair, just and
reasonable.”70 Thus not merely the procedure but a substantive law was
invalidated under Article 21.
This development was picked up, though without any reference to Mithu 71 by
Pendse J of the Bombay High Court in Basantibai Fakirchand Khetan v. State of
Maharashtra72 (Basantibai) and applied to a property legislation – the Maharashtra
Housing and Area Development Act, 1976. The Court invalidated as “unjust,
unreasonable and unfair” those provisions of the Act under which for acquisition
of land the owner got less compensation than provided under the Land
Acquisition Act, 1894. Pendse J held.73
The legislation must be just, fair and reasonable whether protection of Article 14
and 19 is available or otherwise, and … the legislation providing for deprivation
of property must satisfy the requirements of being fair, just and reasonable.
66
(1978) 4 SCC 494: AIR 1978 SC 1675.
67
(1980) 2 SCC 684: AIR 1980 SC 898
68
(1983) 2 SCC 277, 284. Emphasis supplied.
69
Mithu v. State of Punjab, (1983) 2 SCC 277, 289, para. 11: AIR 1983 SC 473.
70
Ibid, (SCC) 298 para. 25.
71
(1983) 2 SCC 277: AIR 1983 SC 473.
72
AIR 1984 Bom 366.
73
Ibid, 381.Emphasis supplied.

27 | P a g e
 The decision in Basantibai was reversed by the Supreme Court but without
disturbing the conclusions of the High Court on the question of reasonableness 74.
This indicates that the Supreme Court does not have any obvious disagreement
with the opinion of Pendse J on the scope and application of the principle of
reasonableness.
Pursuing a similar line of approach in T. Sareetha v. T. Venkata Subbaiah 75
(Sareetha), Choudary J for the Andhra Pradesh High Court extended the
application of the principle of reasonableness to matrimonial matters and
invalidated Section 9 – Provision for restitution of conjugal rights – of the Hindu
Marriage Act, 1955. He found “the remedy of restitution of conjugal rights
provided for the Section … a savage and barbarous remedy violating the right to
privacy and human dignity guaranteed by Article 21 of our Constitution” 76. “After
the Mithu Cases77” , he clarified, “it is not easy to assert that Article 21 is confined
any longer to procedural protection only”78.
Although subsequently in two different cases, the Delhi High Court 79 and the
Supreme Court80, Disagreeing with Sareetha81, have upheld the validity of Section
9, Hindu Marriage Act, 1955, no doubt was expressed, at least by the Supreme
Court, on the application of the requirement of reasonableness or of Article 14 and
Article 21 to matrimonial laws or non-penal laws. The Delhi High court “applying
the standard that the law has to be just, fair and reasonable as enunciated in
Maneka Gandhi82” found Section 9 constitutionally valid. So also the Supreme
Court found the Section 9 “serves a social purpose as an aid to the prevention of
break-up of marriage” and, therefore, satisfied Article 14 and 21.
The Courts have extended and applied the requirement of reasonableness to a
Government Order issued a University Act which prohibited contesting of
election to anybody including the state legislature and Parliament to83: delay in
execution of death sentence84, selection off students by the State Government for
74
State of Maharashtra v. Basantibai Mohanlal khetan, (1986) 2 SCC 516: AIR 1986 SC 1466.
75
AIR 1983 AP 356.
76
Ibid, 373.
77
(1983) 2 SCC 277: AIR 1983 SC 473.
78
T.Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356,372.
79
Harvinder kaur v. harmander singh choudhry, AIR 1984 Del 66.
80
Saroj rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90: AIR 1984 SC 1562.
81
AIR 1983 AP 356.
82
(1978) 1 SCC 248: AIR 1978 SC 597, 622.
83
Kethanreddi Venkata Ramana Reddi v. Govt. of A.P., AIR 1985 AP 73.
84
Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, (1985) 1 SCC 275: AIR 1985 SC 231.

28 | P a g e
 admission to medical colleges to promote national integration 85; a law assigning
powers and functions to the municipal authorities 86; civil service rules made under
Article 309 of the Constitution87; service regulations88; bank regulation89; job
regulations of the public corporations90; and to invalidate the offence of attempt to
commit suicide91. Validity of the offence of attempt to commit suicide under
Section 309 IPC has finally been upheld by the Supreme Court.92
In Selvi93 deciding the scope of Article 20(3), the court remarked that “forcing an
individual to undergo any of the impugned techniques violates the standard of
substantive due process which is required for restraining personal liberty”. Again
in Mohd. Arif v. Supreme Court of India94 relying upon precedents of procedural
due process, the court by 4 to 1 has observed: “Substantive due process is not to
be applied to fundamental right to life and liberty 95.” Referring to this case another
bench of the court has, however, held that “the procedure established by law has
to be ‘due procedure’” and cites Maneka Gandhi96 in support.
In one of the much publicized cases, later overruled by the Supreme Court 97, the
Delhi High Court and relying on that and other cases several authors have also
concluded or pleaded that Article 21 incorporates substantive due process of
law98. These decisions and writings are indicative that global principle of fairness
such as the principle of reasonableness or proportionality, which originally
emerged from the inter-relation of Article 14 and 21 and initially carried the
impression of controlling only procedural laws relating to deprivation of life and

85
Suman Gupta v. State of J & K, (1983) 4 SCC 399: AIR 1983 SC 1235.
86
Olga Tellis v. Bombay Municipal Corpn. (1985) 3 SCC 545: AIR 1986 SC 180.
87
State of Maharashtra v. Chandrabhan Tale, (1983) 3 SCC 387: AIR 1983 SC 803.
88
W. B. SEB v. Desh Bandhu Ghosh, (1985) 3 SCC 116: AIR 1985 SC 722.
89
G. Vijaya Kumar v. SBI, AIR 1986 AP 353.
90
Air India v. Nergesh Meerza, (1981) 4 SCC 335: AIR 1981 SC 1829.
91
Maruti Shripati Dubal v. State of Maharashtra, (1986) 88 Bom LR 589.
92
Gian Kaur v. State of Punjab, (1996) 2 SCC 648: AIR 1996 SC 946.
93
(2010) 7 SCC 263, 382: AIR 2010 SC 1974.
94
(2014) 9 SCC 737,756.
95
Ibid, 756.
96
Shabnam v. union of India, (2015) 6 SCC 702, 712.
97
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
98
Naz foundation v. Govt. (NCT of Delhi), (2009) 160 DLT 277.

29 | P a g e
 personal liberty99 is being misunderstood as substantive due process of law which
is no more invoked even in the US.100
The foregoing developments must, however, be read in the background of
judicially accepted fact that in the light of the experience of US jurists with the
working of the due process clause in their Constitution, our Constitution makers
had replaced the expression “due process of law” by the “procedure established by
Law”. Besides that much after some of the foregoing developments, the Supreme
Court in A.K. Roy v. Union of India101 (A. K. Roy) held:
 The Power to judge the fairness or justness of procedure established by a law
for the purpose of Article 21 is one thing: that power can be spelt out from the
language of that article. … The power to decide upon the justness of the law
itself is quite another thing: that power springs from a ‘due process’ provision
such as is to be found in the 5th and 14th Amendments of the US Constitution
by which no person can be deprived of life, Liberty or property ‘without due
process of law102’.

Again nothing the decline in the application of substantive due process in the US,
the court has held “that it is not permissible for this Court to declare a statute
unconstitutional on the ground that it is ‘arbitrary 103’. Perhaps in due course,
proportionality may control the arbitrariness of laws.

3.5.Relationship of Article 14, 19 and 21.

It has been noted above that the impression of exclusiveness of different
fundamental rights, particularly of Article 19 and 21, which A. K. Gopalan 104 had
left has been removed by Maneka Gandhi105 through the Banks Nationalization
case106. It has also been noted that by establishing a relationship among Articles
14, 19 and 21, a requirement of reasonableness of law providing for deprivation of

99
For details see, M.P Singh, The Constitutional Principle of Reasonableness (1987). For a critical appraisal of
this approach see, P.K. Tripathi, “The Fiasco of Overruling A. K. Gopalan”, AIR 1990 (J) 1. On proportionality,
also see, A. Barak, Proportionality: Constitutional Rights and Their Limitations.
100
See example, E.T. Sullivan and T.N. Massaro, Arc of Due process of American Constitutional Law (OUP, US
2013) 122-67.
101
(1982) 1 SCC 271: AIR 1982 SC 710.
102
Ibid, (SCC) 301. Also see, M.P. Singh, “Decriminalization of Homosexuality and the Constitution” (2009) 2
NUJS LR 361.
103
Rajbala v. State of Haryana, (2016) 2 SCC 445.
104
AIR 1950 SC 27: 1950 SCR 88.
105
(1978) 1 SCC 248: AIR 1978 SC 597, 622.
106
Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248: AIR 1970 SC 564.

30 | P a g e
 life and liberty has been created. The creation of requirement of reasonableness is
a different thing, but otherwise no controversy apparently ever existed about the
relationship between Article 14 and 21. Starting with state of W.B. v. Anwar Ali
Sarkar107, we have a whole chain of cases where validity of laws providing for
deprivation of personal liberty has been tested under Article 14.
It is only in respect of relationship between Article 19 and 21 that the controversy
existed and, in the light of Bachan Singh v. State of Punjab 108, discussed below
under the sub-head (v) right against cruel and unusual punishment, the
controversy is not yet dead. In the Bachan Singh case, the court seems to have
held that the validity of laws criminalizing or penalizing certain activities has not
to be tested under Article 19 because that article does not give any right to commit
crimes. But that is simply not true. We have seen, for example, in the discussion
on Article 19(1) (a) that the validity of the provisions of the IPC like Section 124-
A penalizing seditious speeches and Section 292 penalizing sale, etc. of obscene
materials has been tested under Article 19109. Therefore, the test for the application
of Article 19 is not whether a law is a penal law or not. Indeed the test is whether
the law penalizes an activity protected by Article 19. If it does, its validity shall
have to be tested under Article 19 though it may also be tested under Article 21 if
the reasonableness of procedure for penal sanctions is also questioned. For
Example, if theft or murders are penalized, the penal law does not require to be
tested under Article 19 because stealing and committing murders are not the
activities protected by that article. But if anti-government speeches or entry into
certain territory of India are penalized, the law has to satisfy the requirements of
Article 19, besides Article 14 and 21, because speech and movement are the
activities protected by that article.

107
AIR 1952 SC 75: 1952 SCR 284.
108
(1980) 2 SCC 684: AIR 1980 SC 898.
109
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 995: 1962 Supp (2) SCR 769.

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 CHAPERT -IV

4.1 THE COURT SYSTEM IN INDIA

During the British rule in India the traditional Indian judicial system was reorganised by the
British authorities on the basis of Anglo-Saxon jurisprudence. Mayor’s courts in the
Presidency towns of Madras, Bombay and Calcutta was established in 1726. The Regulating
Act, 1773 established the Supreme Court at Calcutta in 1773. The Indian judicial system
during this period consisted of two systems of courts: Supreme Courts in the Presidency
Towns of Calcutta, Madras and Bombay and Sadar Courts in the provinces. In 1861, three
high courts were established. In tune with the changing times, a legal and judicial system
developed into a well-organised modern system of law and administration of justice, which
India inherited on its becoming independent.

The court structure in India is pyramidal in nature. Unlike the American model of dual court
system, federal and state, India has a single monolithic system. Hence, the Supreme Court is
the highest Apex Court and its verdicts are final in the constitutional matters, customs and
tradition and earlier decisions of the various courts. The judicial system of a country takes up
disputes and gives judgment based on the laws. Both the judiciary and the laws play an
important role in the society. The court of law performs the important task of protecting the
life, property, dignity and the rights of the citizens. They are not controlled by either the
Legislature or the Executive. They are expected to function impartially and independently.
The judiciary plays the role of interpreting and applying laws and adjudicating upon
controversies between one citizen and another citizen / State – to maintain Rule of Law and
to assure that the government runs according to law – in a country with a written
Constitution. Judiciary has an additional function of safeguarding the supremacy of the
Constitution by interpreting and applying its provisions and keeps all authorities within the
constitutional framework. The judiciary in all the states in India has practically the same
structure with variations in designations. The designations of courts are derived principally
from the Code of Civil Procedure, 1908 (CPC) and the Code of Criminal Procedure, 1973
(CrPC) further embellished by local statutes. These statutes also provide for their functions
and jurisdiction. At the top of the judicial systems is the Supreme Court of India, followed by

32 | P a g e
High Court at the state level. There are about 21 high courts in the country. At the district
level, there are subordinate courts.

4.2 THE SUPREME COURT OF INDIA

The Supreme Court of India is the Apex Court at the national level, which was established on
28 January 1950, under Article 124(1) of the Constitution of India. In this context Article
124(1) reads as “there shall be a Supreme Court of India consisting of a Chief Justice of India
and, until Parliament by law prescribes a larger number, of not more than seven Judges.”
Through the (Amendment) Act of 1986 the number of Judges in the Supreme Court was
raised to 25. All proceedings in the Supreme Court are conducted in English. The seat of
supreme court is in Delhi and the proceedings are open to the public. Except for the chamber
judge who sits as a single judge, benches of two or more judges hear all matters. Five judges
hear constitutional matters and, in special cases, larger benches are constituted. In addition to
the judicial autonomy, the Supreme Court has freedom from administrative dependence and
has the power to punish for contempt of court. India has an independent judiciary to interpret
the Constitution and to maintain its sanctity. The Supreme Court of India has the original
jurisdiction to settle disputes between the Union and the States. It can declare a law as
unconstitutional, if it contravenes any provision of the Constitution.

4.3 HIGH COURTS

The highest court in a state is the High Court, constituted under Article 214 of the
Constitution of India, which reads there shall be a high court for each state. There are at
present 21 high court in the county, having jurisdiction over more than one state/union
territory. In few states due to large population and geographical area benches have been set
up under the high courts. Each high court comprise of chief justice and such other judges as
the president of India, appoints from time to time.

4.4 SUBORDINATE JUDICIARY/THE JUDICIAL SERVICES OF THE STATE

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The subordinate courts represent the first-tier of the entire judicial structure. It is the focal
point on which the goodwill of the entire judiciary rests. Under the Indian Judiciary, there are
several Subordinate Courts. The High Court functions under the Supreme Court. The
Subordinate Courts, which function under the High Courts, include District and Sessions
Judges Courts, City Courts, Taluk-level / Munisiff Courts, Judicial Magistrate, Metropolitan
Magistrate, and Nyaya Panchayats. The Subordinate Courts are of two types: (1) Civil Court:
It takes up matters such as money transactions, property & contracts, and passes judgment.
(2) Criminal Court: It takes up matters such as murder, theft & robbery, and passes
judgments. The High Court has the power to admit appeals in civil and criminal cases from
the Subordinate Courts. Hence, appeals may be made to the High court against the judgments
given by the Lower Courts. Similarly, appeals may be made to the Supreme Court against the
judgments given by the High Courts.

The powers and functions of the criminal courts are governed by the Code of Criminal
Procedure (CrPC), 1973 and the civil courts by the Code of Civil Procedure, 1908
respectively. The CrPC provides following classes of criminal courts: courts of session,
courts of judicial magistrates, courts of executive magistrate and, courts constituted under the
laws other than the CrPC like, Prevention of Corruption Act, 1991, Terrorist and Disruptive
Activities (Prevention) Act, 1984 etc. Every state is divided into a sessions’ division and
every sessions’ division into districts. The state government in consultation with the high
court alters the limits / numbers of such divisions and districts. There is only one Court of
Sessions for every session’s division, though it may have several judges. Further we move on
to see the safeguards for detainees during arrest, interrogation and also safeguards against
torture.

4.1.1 prosedure of courts

4.1.2 Trial court

After the completion of proceedings as prescribed by the Code of Criminal Procedure, the
judge pronounces the judgment in a case under Section 235. In case of conviction of the
accused, there shall be a mandatory pre-sentencing hearing as according to Section 235(2),
Code of Criminal Procedure. The Code of Criminal Procedure, 1973, also contains a
provision regarding special reason for death sentence. Section 354(3) of the Code provides
that the court must record "Special reasons" justifying the sentence and state as to why an

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alternative sentence would not meet the ends of justice in the case, according to the principle
‘Life imprisonment is the rule and death sentence is the exception’110.

4.1.3 Confirmation by High Court

After the decision and sentencing by the Court of Sessions, a high court needs to confirm it
for the death sentence to be valid. The high court may confirm the death sentence awarded by
the Court of Sessions, pass any other sentence warranted by law, annul the conviction,
convict the person of any offence for which the Court of Sessions might have convicted them,
order a new trial on the same or amended charge or acquit the accused person under Section
368,111 Code of Criminal Procedure. The High Court may also enhance the sentence awarded
by the Court of Session to death sentence according to Section 386 (c), CrPC. The High
Court shall not enhance the sentence awarded to the accused without giving them a
reasonable opportunity of showing cause against such enhancement and while showing such
cause, the accused may even plead for acquittal or reduction of sentence awarded by the
Court of Session. Additionally, the State Government or the Central Government under
Section 377,  CrPC may direct the public prosecutor to appeal to the High Court against the
sentence granted by the Court of Session on grounds of inadequacy. Further, exercising of its
suo-moto revisional powers under Section 397, CrPC read with Section 401, CrPC, the High
Court may, even in the absence of an appeal enhance the sentence awarded by the Court of
Session.112 The High Court may also in accordance with Section 367 of the Code conduct or
direct further inquiry into or additional evidence to be taken on any point bearing upon the
guilt or innocence of the convicted person.113 Unless directed by the High Court, the accused
need not be present during this period of this inquiry or when additional evidence is taken.
The High Court also has the power under Section 407 of the CrPC to withdraw a case
pending before a subordinate court and conduct the trial, and may award the sentence of
death.

4.1.4 Special leave petition

After the death sentence is confirmed by the High Court, an appeal by Special Leave
Petition(SLP) under Article 136 of the Constitution may be filed.114 The Supreme Court may

110

111

112

113

114

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in its discretion after considering the issues grant special leave to appeal under Article 136 of
the Constitution. Exercising its power under Article 136, the Supreme Court decides whether
the special leave petition deserve to be heard as appeals. Correcting an earlier trend of
dismissal of SLPs involving the death sentence in limine (dismissal of Special Leave Petition
at the threshold without giving any detailed reasons) it was held in two cases of Babasaheb
Maruti Kamble v. State of Maharashtra, November 2018 and Jitendra @ Jeetu v. State Of
Madhya Pradesh & Others, July 2020 that special leave petition filed in those cases where
death sentence is awarded by the courts below, should not be dismissed without giving
reasons, at least qua death sentence115. It was opined that in such cases a deeper scrutiny
coupled with reasons in support of death penalty should be given by the Court.

4.1.5 Review and reopening of a review

A petition seeking review of a judgment or order passed by the Supreme Court may be filed
under Article 137 of the Constitution before the Supreme Court within thirty days from the
date of such judgment or order116. As per the Supreme Court in Mohd Arif @ Ashfaq v. The
Registrar, Supreme Court of India & Ors, September 2014,117 review petitions for death
sentence cases should be heard in open court, but there would be a time limit of 30 minutes
for oral hearing. Such a procedure would be just and fair. The cases would be heard by a
bench of three judges, and the special procedure would apply to all cases of death sentence
where the review had been dismissed but the sentence was yet to be executed, including cases
brought under Terrorist and Disruptive Activities (Prevention) Act.118 Various cases such as
M.A. Antony @ Antappan v. State of Kerala, April 2009,119  Md. Mannan @ Abdul Mannan
v. State Of Bihar, April 2011, Ambadas Laxman Shinde And Ors V. The State Of
Maharashtra, October 2018 were reopened after being dismissed earlier to be heard in the
open court after the above judgement, which resulted in commutations and an acquittal.

4.1.6 Curative petition

As per the Supreme Court judgment in Rupa Ashok Hurrah v. Ashok Hurrah & Ors, April
2002 after the dismissal of the review petition,120 the Supreme Court may allow a curative
petition to reconsider its judgment or order if it is established that there was a violation of
principles of natural justice or apprehension of bias on part of a judge. The Supreme Court in
115

116

117

118

119

120

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the said case held that in order to prevent abuse of its process and to cure gross miscarriage of
justice, it may reconsider its judgements in exercise of its inherent powers.121 The curative
petition would be circulated before the same bench which decided the review petition, if
available, or the three senior-most judges of the Supreme Court. The curative petition would
be disposed of without oral arguments, unless ordered otherwise by the Supreme Court.[32]

4.1.7 Mercy

Articles 72 and 161 of the Constitution give power to the President of India and

the Governor to grant pardons and to suspend, remit or commute sentences in certain cases.122
The president or the governor may consider the case of the convict and may pardon the death
sentence.

Various legal issues surrounding mercy petition has arisen time and again, one of them being
delay. In V. Sriharan Murugan v. Union of India, February 1947,123 the Supreme Court
reiterated that the clemency procedure under Article 72/161 provides a ray of hope to the
condemned prisoners and his family members for commutation of death sentence into life
imprisonment and, therefore, the executive should step up and exercise its time honoured
tradition of clemency power of guaranteed in the constitution one way or the other within a
reasonable time. In the case of Shatrughan Chauhan v. Union of India, January 2014,124 a
three-judge bench of the Indian Supreme Court delivered a landmark judgment on the death
penalty: holding, in particular, that an excessive delay in carrying out the death sentence was
an essential mitigating factor in a plea for commutation.125 This was also held in a previous
case Triveniben V. State of Gujarat & Ors, February 1989 stating that the Court may consider
whether there was undue long delay in disposing of mercy petition;126 whether the State was
guilty of dilatory conduct and whether the delay was for no reason at all.  Though the
inordinate delay may be a significant factor,  that by itself cannot render the execution
unconstitutional. Further, the courts have also recognised some other supervening
circumstances which should be considered during mercy petition such as mental
illness/insanity, trauma, solitary confinement etc.

121

122

123

124

125

126

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4.1.8 Death warrant

In cases where the death sentence is awarded, Form No. 42 in the Second Schedule of the
Code of Criminal Procedure, 1973 contains the form of the “death warrant” or “black
warrant”.127 It is addressed to the superintendent of the relevant prison who is supposed to
return the warrant to the court after certifying that the death sentence has been carried out. If
a sessions court issues a death warrant before the end of the judicial and administrative
process, it would amount to a serious violation of the law as laid down by the Supreme Court
in Shabnam v. Union of India, May 2015 which affirmed the guidelines laid down by the
Allahabad High Court in PUDR v. Union of India, January 2015.128 In Shabnam v. Union of
India, the Supreme Court held that the principles of natural justice have to be read into death
warrant proceedings. The convict should be allowed to exhaust all the legal remedies
available such as appeal, review and mercy petitions. The guidelines given in the PUDR case
are needed to be followed before issuing the death warrant.

127

128

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 CHAPTER -V

VOCALS OF PRISONERS ON DEATH ROW

5.1. INTRODUCTION

It was hard to ignore the ethical aspect of the study owing to its very sensitive nature. Moving
from ethical concerns, the current chapter presents the findings of the study. I, as a researcher
and the prisoners themselves skipped a beat of our hearts when the prisoners voiced out their
experiences and perceptions. The data was collected over a period of five months. The
theoretical basis of the study has been mentioned in detail in the previous chapters but to
locate the study once again, the study is underpinned in the synthesis of two theories namely
phenomenology and symbolic interactionism. This synthesis has been termed as ‘experience
caption’. Phenomenology describes the experiences and perception of prisoners while
symbolic interactionism tackles the interaction between the prisoners and me.

Underpinned in these two theories, the raw data was analysed using the adapted version of
Tesch's proposed steps in data analysis. This chapter is divided into three parts. It begins
with understanding the prisoners who are on death row with reference to their demographic
profile. This includes their gender, age, education, occupation, ethnicity, religion, language
and their present stage of appeal. In addition to this there is also a description of the impact of
death sentence on the families of these prisoners. Cumulatively it forms a profile of a group
of individuals sharing similar situation from different parts of India.

Secondly, this chapter elaborates upon the process leading to death penalty. It begins with
their arrest till the time they are on death row i.e. the day of the interview. This includes
seven processes which is arrest, lock-up, production before the Magistrate, sent back to lock-
up or judicial custody, trial and being sentenced to death. This section also discusses their
experiences with various ‘actors’ in this field such as media, lawyers, judges, prison officials,
police visitors, doctors and their family members. Thirdly, this chapter presents the ‘double
jeopardy’ of prisoners being incarcerated as prisoners on death row. It begins with the
description of the physical structure of the prison and the death row, secondly the routine life

39 | P a g e
of the prisoner and the rules they have to follow being on death row and finally it culminates
to what we know as the death row phenomenon.

5.2. DEATH ROW PRISONERS IN THE STUDY

It does not seem redundant to refer to Justice Suresh while introducing prisoners on death
row that we do not know anything about the prisoner except for the crime s/he has been
alleged with or convicted for. Some of the tags that the research participants have acquired
over the years are ‘danger man/woman’, ‘hard-core criminal’, ‘fundamentalists’, ‘face of
evil’, ‘rapists’, ‘sex maniac’, ‘cruel’, ‘monkey’, ‘beast’, ‘mad man’, ‘Pakistani’ --- the list is
never ending. In an endeavour to quantify the qualitative data, there is an attempt to sketch a
profile of the research participants minus these tags. When I entered the field in February
2011, I relied on the data from 2007 which was published in October 2010. The next prison
statistics of 2008 was published in July 2011 after I finished my data collection. A total of
1,25,789 convicts were reported under various terms of sentences in the country at the end of
2010. 402 of these were awarded death penalty accounting for 0.3% of the total convicts.

DEMOGRAPHIC PROFILE OF THE PRISONERS

The demographic profile of prisoners on death row describes the age, gender, religion, ethnic
background, language, education, occupation and finally the stage of their appeals. This is
done with an aim of understanding the socio- economic background of the prisoners on death
row.

AGE

The age group of prisoners ranged from 18 years to 60 upwards. Maximum number of
prisoners (44 %) was in the age group of 30 – 40 years. The longest trial went on for 12 years
while the shortest for 1 year and 2 months. This means that the average number of years a
person spent as an undertrial is six years. When the prisoners were arrested, they were very
young; most of them in their twenties which is also a productive age group. While they were
undertrials, they were not allowed to work as only convicts are employed. After being on

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death row, they are left waiting for death in their high security yard and are not allowed to
work. All of them expressed their discontent over not being allowed to work. Age group 18-
40 years amounts to 65 % of prisoners which implies that a rather large group of young adults
are on death row. the age composition of death row prisoners.

Age
Year Number Percentage
18-29 23 21
30-40 49 44
41-50 28 25
51-60 8 7
60 above 3 3
Total 111 100

GENDER

99% of the research participants were men. There was one woman whom I interviewed.
However apart from the one woman participant there are other women on death row in India.
I was not allowed to interview them in certain states where I had the permission or they are in
states which were not in my sample. This has been explained in the research methodology
chapter. the gender composition of death row prisoners.
Gender
Type Number Percentage
Women 1 1
Men 110 99
Total 110 100

RELIGION

Classification of death row prisoners professing different faiths revealed that 67 % of them
adhered to Hindu religion while 14 % adhered to Islam. The rest were a minority of
Christians, Sikhs, and Buddhist (6 %, 5 % and 2% respectively). A few refused to disclose
their religion while two insisted on putting down their religions as Marxist and Atheist. There
was also a small percentage (4 %) of prisoners who refused to disclose their religious
identity.

Religion Number Percentage

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Hindu 74 67
Islam 17 14
Christian 7 6
Sikh 5 5
Buddhist 2 2
Marxist 1 1
Atheist 1 1
Refused to 4 4
disclose
Total 111 100

ETHNIC BACKGROUND

Indian caste system has been quite predominant in its diverse culture. Mines describes that
Caste is derived from a Portuguese term meaning "colour." The phrase "sistemas de castas"
was widely used in the Spanish colonies of the Americas to refer to the different categories of
people under the colonial government and their ranking relative to ideas of nobility:
Spaniards, those of mixed descent, indigenous peoples, and those of African descent. In
Sanskrit, the term Varna also means "colour" and refers to the textual division of persons into
four categories: Brahman, Ksatriya, Vaisya, and Sudra. The 'untouchables' or the 'dalits' are
below these categories. These names are still used by many Indians to designate their general
place in a caste-defined society. Jati, a pan-Indian term meaning birth group or genus, is the
common term for what we think of as caste. A person inherits jati from their parents. Of these
there are thousands129. Almost 37% of prisoners on death row belonged to the scheduled
castes/scheduled tribes or other backward castes. These castes include the dalits and certain
caste based on occupation (e.g. oil pressers). Also a large per cent (44%) refused to identify
the caste they belonged to. While 19% of the prisoners belonged to upper castes.

LANGUAGE

India has been a crucible for the drama of language conflict. Some 1500
languages and dialects are spoken by India's 800 million people130 . Contrary to the state-
building efforts in other empires, India remains a linguistic mosaic. No single language
stands as the authorized medium for official exchange. Citizens develop complex language
repertoires in order to interact with servants, family, merchants, colleagues and officials. In

129
Mines, Diane P. Caste in India. Association for Asian Studies, 2009.

130
Note: World Bank 2011 Present 1,241,491,960

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this study, there were prisoners speaking 14 languages. Each of these 14 languages had
different dialects. Of these 25 % spoke Kannada as most number of prisoners on death row in
this study are from the State of Karnataka. This was followed by almost 15% of prisoners
speaking Tamil followed by almost 13% speaking Marathi. The other languages were Telugu,
Malayalam, Urdu, Punjabi, Assamese, Hindi, Marwadi, Rajasthani and Gujrati. Two of the
prisoners also spoke Wadari and Banjara-Gormati. The Wadar of Maharashtra migrated from
Andra Pradesh in the early historical period. They speak among themselves in Telugu and
with others in Marathi. The traditional occupation of Wadars is stone-crushing and making
stone chips of various forms and sizes131. The Banjaras are a class described as nomadic
people from the Indian state of Rajasthan, North-West Gujarat, and Western Madhya Pradesh
and Eastern Sindh province of pre-independence Pakistan. They are also sometimes called
the "gypsies of India". In Maharashtra, they are called Banjara-Gormati 132. This Banjara class
speaks a language spoken in this community.

Language Number Percentage

Kannada 28 25
Tamil 16 14
Marathi 14 13
Telegu 11 10
Malayalam 9 8
Urdu 9 8
Punjabi 7 6
Wadari 6 5
Assammese 4 4
Hindi 2 2
Marwardi 2 2
Gujarati 1 1
Rajeshthani 1 1
Gormati 1 1
Total 111 100

EDUCATION

The data indicated that almost 53 % of the prisoners have studied till the 10 th grade which is
relatively a low level of education. Of all prisoners on death row, 17 % of them are illiterate
and have never been to a school or even registered as a child in a school. A relatively small

131
Singh, Kumar Suresh. People of India: Maharashtra. Vol. 30. Popular Prakashan, 2004.
132
Halbar, B. G. "Lamani Economy and Society in Change." Delhi, Mittal Publication (1986).

43 | P a g e
proportion (12%) of prisoners reported that they had completed bachelors, masters,
professional degree or vocational training. Again almost 15 % of the prisoners refused to
disclose their educational level. Some of the prisoners even received part of their education in
the prison as under trials or still continue their education on death row.

Education Number Percentage

Illiterate 19 17
1st to 4th grade 11 10
5th to 7th grade 23 20
8th to 10th grade 25 23
Bachelors 4 5
Masters 6 1
Professional degree 1 2
Vocational training 2 4
Refused to disclose 4 14
Total 111 100

OCCUPATION

The data indicates that 53 % of the prisoners worked as daily wage workers or casual
labourers. It reveals that around 15 % of the prisoners were unemployed. There were 5 % of
prisoners who were professionals like engineers, chartered accountants or computer
professionals. Around 13% of the prisoners had their own business such as owning shops or
having upholstery or electronic shops. Again 14 % of the prisoners refused to disclose their
occupation.

Occupation Number Percentage

Daily wage worker 59 53
Business / own shop 15 13
Professional work 5 5
Unemployed 17 15
Refused to disclose 15 14
Total 111 100

PRESENT STAGE OF APPEAL AGAINST DEATH SENTENCE

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There are the different stages of appeal against the death penalty that were awarded to the
prisoners. The lowest court hands in the punishment for death and the next stage is the High
Court which either confirms the verdict of the lower court or commutes it to life or
sometimes even acquits the prisoner. More than half of the prisoners’ (55%) appeal was in
the High Court. The next stage is the Supreme Court which follows the same procedure as the
High Court. Around 16% of the prisoners were in this stage of appeal. Once the Supreme
Court confirms their death sentence, the next stage is to ask for mercy or clemency or pardon.
The Governor of particular states and the President of India are the ones who pardon or give
mercy. First it goes to the Governor of the particular state and when the petition is rejected by
the Governor, the prisoner has the final gamble to obtain mercy from the President of India.
Around 23% of prisoners had their mercy petition before the President of India.

Present stage Number Percentage

High court 61 55
Supreme court 18 16
Governor 2 2
President 25 23
Refused to disclose 5 4
Total 111 100

5.3. THE IMPACT OF DEATH SENTENCE ON THE FAMILIES OF DEATH ROW

PRISONERS

Several research studies show that incarceration has an impact on the families of prisoners 133.
This is doubled in the case of prisoners on death row. A prisoner on death row said that other
convicted prisoners know when they will leave the prison but prisoners on death row do not
know when or if at all they will leave the prison. Some of the impact of death sentence on the
families of prisoners has emerged as a result of the interaction between the prisoner and me
and also with a few home visits that I made as a part of this study. This section discusses the
133
For example: Western, Bruce, and Sara McLanahan. "Fathers behind bars: The impact of incarceration on
family formation." Contemporary Perspectives in Family Research 2 (2000): 309-24.; King, Anthony E. "The
impact of incarceration on African American families: Implications for practice." Families in Society (1993).;
Arditti, Joyce A., Jennifer Lambert‐Shute, and Karen Joest. "Saturday Morning at the Jail: Implications of
Incarceration for Families and Children." Family Relations 52, no. 3 (2004): 195-204.
This is doubled in the case of prisoners on death row. A

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impact of death sentence on the families of death row prisoners. Though it is very similar to
the impact of incarceration of individuals, the impact of death sentence has a peculiar effect
on the families of these prisoners.

5.3.1. FAMILY IS IMPOVERISHED DUE TO THE PROLONGED PERIOD OF

INCARCERATION

The prisoners said that often their families had to sell land, house or gold to pay the lawyer’s
fees or to provide for the daily needs. All the prisoners in this study (except one woman who
was a homemaker) were bread winners of the family. Hence they left their families behind to
fend for themselves. One of the prisoners said that his mother comes very rarely to visit him
in the prison because she does not have the money to travel from the village to the prison.
The prisoner said he does not know how his mother feeds herself. He often wonders if his
mother has resorted to begging for her survival.

Additionally, prisons are located in areas that are far away from the cities. Prisons are built in
‘locally unwanted/undesirable land use’. Lulu can include prisons, dumps, factories, hospitals
or asylums. Though LULUs provide community needs it is on the periphery of cities. it
difficult for families of prisoners to visit them. The prison manual stipulates 20 minutes
visiting time. The families take more than 20 hours to reach the prison. Hence they often
bypass the judicial system by paying bribes to the guard in order to spend 10 minutes more
with the prisoner. A prisoner said that the family has to spend two to three thousand rupees
(34 – 51 Euros approximately) to meet him. This prisoner used a very powerful concept to
describe the transition period or the time that has passed by while he was incarcerated on
death row. He said that “The children are no more half ticket” indicating that they would
need more money to buy a ticket for a fully-grown child. This is a problem with most of the
prisoners because it is very expensive to travel to the prison. Hence visits from the family
become infrequent as time passes thus deepening the divide in the already broken-
relationships.

I visited a prisoner’s family in Assam. The house that the family lived in could have been
demolished by a heavy rain. The family had a hand-to-mouth existence. They informed me
that they often had to take loan from neighbours to go to the High Court which was three
hours away from their village. The mother who spoke only Assamese asked me when her son
was going to be released. His sister translated it for me in Hindi. I did not have an answer.

46 | P a g e
The sister then asked if his sentence would be commuted to life or have they found a
hangman who will execute him. I could not bring myself to lie to them because I had the
information from the prison officer that they had found a hangman from another city.

OLD PARENTS OR RELATIVES DYING AND/OR LIVING IN ABJECT POVERTY

Most of the prisoners who were interviewed lost at least one of their parents or relatives
during their incarceration. In cases where they knew of the death immediately and wanted to
attend the funeral, their bails were rejected because they were the ‘dangerous ones’ and in a
few cases they could not be informed about the death of the relative because the surviving
relatives simply did not have money to come to the prison to inform them. According to a
very young death row prisoner, the most difficult part of being on death row is that he
constantly thinks about his parents. Another prisoner who was on the death row for 10-12
years was crying bitterly and said that it was the first time that someone was talking to him
and enquired about his family and so all his hidden grief emerged all of a sudden.

Yet another prisoner mentioned that his mother is 60 years old and father much older than the
latter. He used to write letters regularly but there were no replies to the letters so he stopped
writing to them. He said that he has not talked to or met his family members for the last two
and half years. I also conducted a home visit in Bhokardan District, Aurangabad, and
Maharashtra. The day I visited the family, the sister of one of the death row prisoners had
died. When asked about the cause of the death, the relatives said that she was ill for a long
time but they did not have the money to treat her or admit her in a hospital. The sister who
died was survived by a one year old child and an alcoholic husband. I stayed behind for the
cremation. The houses that they lived in were in the border of the village. It thus once again
proves the social theory of marginalisation that it is the poor and the daily who live in the
border of any village or society as they are ghettoised or socially excluded.

One of the other prisoners told me that his mother died and he was informed several days
after her death because his relatives did not have the means to travel to the far away prison.

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According to him, she died of the burden of his impending death sentence. Yet another
prisoner narrated that when his death sentence was confirmed, his father died of grief. His
mother was very sick. The frequency of the family visits lessens as years pass by because of
abject poverty or deteriorating health. Besides, some of the other reasons for families losing
contact with the incarcerated are when the latter has murdered their children or wife or when
the family feels the stigma of visiting a prison. One of the prisoners said that, “Reena,
families visit in the beginning of our incarceration, however as time passes, they get used to
the fact that we are not there and in the maximum period of seven years, we lose all
contacts.” This was narrated by a prisoner who has been on death row for 16 years.

5.3.3. PARTNERS FORCED TO RE-MARRY OR ABANDON THEM

Prisoners on death row have a trial which is ‘quite sensational’ in the print and the visual
media. Hence all the proceedings and stages of the trial are often found in the media which
then becomes a point of discussion among the relatives according to the prisoners. One of the
prisoners said that he was married for three months when he was arrested. After he was given
death sentence, his wife’s family started forcing her to re-marry telling her that her husband
will not come back. He said that she wrote a letter to him saying that she will kill herself if
she is forced to re-marry. However the prisoner is now clueless whether his wife is dead or
alive because she has not been coming to the prison for months. Another prisoner on death
row had his wife in the women’s prison. During a meeting I had with her, she cried
inconsolably. She kept saying that her husband was innocent and that the system could keep
him in the prison life-long if they wanted to but they should commute his death sentence to
life imprisonment.

THE PROCESS OF DEATH PENALTY

The process of death penalty has emerged from the narration of the prisoners about their
experiences and perceptions from their arrest till they were sentenced to death. The data
revealed seven processes that a prisoner has to go through while being sentenced to death. It
begins with their arrest, being in the lock-up, production before the Magistrate for the first
time, either sent back to lock-up or sent to judicial custody (prison), being in judicial custody,
trial and death sentence. In this process, prisoners meet various actors like media personnel,

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doctors, lawyers, Magistrates and family members. These actors play a significant role in the
process of prisoners being sentenced to death. This will be elaborated in various processes.
While these actors play a role in the sentencing of prisoners, they do not necessarily stick to
one process but are woven in the process of being sentenced to death.

This section has to be read bearing in mind the laws and safeguards which are mentioned in
chapter two. To brief the seven processes, it begins with the arrest of a prisoner. The prisoner
is then housed in the police lock-up. Within 24 hours of the arrest, the prisoner has to be
produced before the Magistrate of that jurisdiction. The Magistrate either sends the prisoner
back to the lock-up or sends the prisoner to judicial custody which is the prison. If the
prisoner is sent back to the lock-up, s/he is again produced before a Magistrate after a week
or so and then sent to judicial custody of that particular jurisdiction. The next process is when
the trial begins. The trial usually should begin within two months of the arrest - after the
chargesheet is produced. A chargesheet is a formal document of accusation prepared by the
police. During this period the prisoner also has a lawyer either provided by the state or a
private lawyer. The last process is pronouncing the death sentence. This is after the cross -
examination of the witness and the final arguments in the case are presented during the trial.
In the court, the magistrates usually asks the prisoner for their opinion before the sentence is
pronounced and once the sentence is pronounced the prisoner is taken back to the prison.
Usually on the same day or the next day the prisoner is transferred to a singular cell
confinement in a special yard where prisoners on death row are housed.

5.4.1. ARREST

The prisoners started their narration or rather I asked for their narration from the time of their
arrest. I found it unethical to ask them the crime they were convicted for during the stage of
this interview where I did not know them ‘well’. However after I established rapport with
them, they themselves talked about the crime or it was easier to ask them about it. Hence
‘arrest’ is the first process of death penalty. The findings for being arrested are narrated
below. Each prisoner perceived or/and experienced certain phenomenon while being arrested.
The data revealed certain characteristics which are the four C’s that a prisoner perceived or
experienced during the process of arrest. An arrest is defined as depriving of a person of
liberty by legal authority; in the technical criminal law sense, to seize an alleged or suspected

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offender to answer for a crime. The overarching characteristic of being arrested is the class
and/or caste’. It is followed by being ‘coerced’ into taking one in custody, followed by being
‘charged’ for the crime and finally the ‘confinement’ of an individual.

5.4.1.1.CLASS AND/OR CASTE

The study retreats on Wacquant’ s argument that prisoners belong to a marginalised and
socially excluded category. It is the poor, marginalised and socially excluded who often end
up in the prison. Education is an indicator of their chances of getting a high salaried
employment. Most of the prisoners - 70% of the prisoners had education till 10th grade of
which 17% were complete illiterates. This indicates the low level of education which further
pushes them to take up menial jobs which do not provide adequate income to sustain a
family. Thus most of the prisoners in this study (53%) were daily wage workers or casual
labourers who earned Rs. 120/- (2 Euros) or less per day. This is not sufficient for a family to
survive. A large number of prisoners (around 15%) were also unemployed when they were
arrested. Hence it proves that most of these prisoners came from economically poor
backgrounds.

Concurrently, 41% of the prisoners belong to lower caste or ethnic minority. People from the
lower castes often are trapped in the circle of poverty because of their social and spatial
exclusion. Prisoners themselves said that they were arrested because they belonged to an
oppressed class or caste. Also prisoners from religious minority claimed that they were
arrested because of their religion. In caste violence where prisoners are arrested, they claim
that in spite of the fact that there was a mob attacking the victims; they were arrested because
of their caste identity.

5.4.1.2.COERCED

Coerced is the characteristic where individuals are arrested by informing them a different
reason for the arrest. In most cases, prisoners were taken to a police station by telling them
that they will be sent back home immediately. However in reality, they are never let out even
on bail and finally ended up serving a death sentence. For instance, one prisoner who was

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arrested in the evening was told that, ‘We will do an enquiry and send you in the morning.’ In
another case,

the prisoner said that he was with his family and at 7:30 a.m. a guard came and told him that
the Circle Inspector has summoned him to the police station. The guard also informed him
that there was no complaint lodged or a First Report Information (FIR) reported. So this
prisoner went to the police station alone and he was taken to a completely different district.
He said that he was kept in the lock-up in this district for 17 days without being produced in
the court even once.

It is also a common practice to arrest the family members along with the so called ‘main or
prime’ accused. Thus there are a lot of auxiliary arrests along with the main accused who is
arrested. In some cases, the family members are released but in most cases where family
members were arrested, they spend time on death row together. According to the prisoners,
this is a tactic by the police to get the ‘main’ accused ‘confess’ her/his crime. Once the
accused signs a ‘confessional statement’, the family members are released. Also in another
instance, the police uses strategies such as, “Your brother has accepted the crime, what is
your problem? Just sign the paper.” When family members are arrested, they are either
arrested from their homes or at times when they come to visit the prisoner in the judicial
custody (prison). According to the prisoners, it is the prison officials who inform the police
about these visits. Thus there exists a nexus between the prison officials and the police
officers. It was most evident in the recent Arun Ferreira case where he was abducted outside
the prison in front of his family members by the police in another case. The family saw him
being taken away in a van by persons in civil clothes. The police knew the date and time of
his release through the prison officials.

In a similar case of nexus between police and prison officials in the process of arrest, a
particular prisoner who was accused of 45 murders had a visit from his wife. This prisoner
told his wife that, “My grandfather said, whenever we are in trouble go to Indira Gandhi (ex-
Prime Minister of India) and now that she is no more please go and meet Sonia Gandhi
(Daughter-in-law). She will definitely help us.” This woman set out to the capital city – Delhi
to meet Sonia Gandhi. According to this prisoner, she could not meet Sonia Gandhi but she
met Margaret Alwa, the then head of Women and Child Welfare. The wife told Margaret
Alwa that if they do not stop the injustice, she and her children will commit suicide. Margaret
Alwa according to him assured his wife that they will look into the matter. He said that since
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the government had given an assurance that they will look into the matter, the wife came
back. As promised, this minister issued a letter to the state informing them about the situation
and making an enquiry. The next time the when the prisoners’ wife came to the prison to
meet him; she was arrested in the meeting room. The prisoner said that he felt helpless
watching her being arrested on his account. He did not know about her custody for a long
time and had to put a fight with the Magistrate to know the whereabouts of his wife. This has
been recorded in the trial section.

Another aspect of coercion in the process of arrest is that even though the prisoners are
arrested by ‘force’, the police record it as ‘the individual surrendered’. Another prisoner said
that when the crime occurred he was not in his village but saw his photo and news in the
daily newspaper. He was afraid to go back to his village yet he went back and when he was
there, he was immediately arrested. Prisoners are coerced to speak in front of the Magistrate
to fit the ‘police version’ of the arrest. One of the prisoners was asked to tell that he was
arrested in a particular state and not the other state where he was originally arrested. This has
been recorded in detail in the coming sectio

5.4.1.3.CHARGED

Charged is a characteristic in the process of the arrest where a prisoner is arrested for a
certain crime but charged with some other crime. Many prisoners reported that they were
involved in petty crimes such as theft earlier, but they clearly were not involved in the crime
they were charged for. For instance, one prisoner said, “Madam, we had a criminal record
earlier for theft or dacoity. However, when there was an unsolved murder in a particular
jurisdiction we were arrested and charged for those unsolved murders.” In a particular case, a

whole family was arrested. A prisoner from that family said that a young boy 246

from the family stole a silver article from a house. In order to get ‘rid’ of it they sold it.
However the shop owner intimated the police and the whole family was arrested. According
to the prisoner, they were later shown as a big gang and all those cases which were
‘unsolved’ in that jurisdiction were charged on this family. Similarly another prisoner said
that he was involved in ganja (drug) cases earlier but he was charged with murder.

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5.4.1.4.CONFINED

The last characteristic of the process of the arrest is ‘confined’. This simply means that they
were ‘confined’ in another location instead of the police lock- up where an accused is housed.
Many of the prisoners were taken to lodges or bungalows or secluded construction sites or
empty houses. All these places served a ‘perfect atmosphere’ to intimidate or torture or
extract confessions from the ones who were arrested or detained. Prisoners who were
‘confined’ in these different locations were not produced before the Magistrates within 24
hours of arrest as the law prescribes. Some of the prisoners said that they were produced after
45 or 22 or 17 or 14 days of confinement. For instance, one prisoner said that two of them
were arrested together and housed in a particular police station for 15 days. Thereafter they
were taken to a new building and were ‘confined’ in this new building for over three and a
half months. Another one said, “I was arrested on so and so date from my house. I was first
taken to a police station but later to a lodge and from there to a bungalow.” This prisoner
even remembers the name and room number of the lodge that he was taken. Later he was
taken to the Magistrate but was told that he should not speak there.

When prisoners are confined in other places than a police lock-up, the family members are
not informed about this. Even when the family members enquire with the police, they are not
given any information. In one particular case, the prisoner narrated how his father ran from
pillar to post to enquire about him. He said that his father even went to the Tehesil [district]
office to lodge a complaint but the Tehesildar [district collector] did not take the complaint
and drove him away. He said that if the District Collector would have enquired, the

police would have been forced to take him to the court the next day. He that his father also
went to the police station with a written complaint that the son is missing but the officers
refused to take this complaint.

These were the four characteristics which have been termed as four C’s of the process of
arrest The next process is the description of ‘being in the lock-up’ once an individual is
arrested.

5.4.5. SENT TO JUDICIAL CUSTODY

Subsequently the prisoner is transferred to what is termed as 'judicial custody' or 'prison'.

While continuing to remain in prison (also referred to as 'jail') during the period of trial, the

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individual's legal status is that of an 'accused person'. To distinguish this category of
prisoners from sentenced prisoners, the term commonly used by the administration is
undertrial. Judicial custody is the phase in the process of death penalty where the accused is
eventually entrusted in the hands of the Magistrate. Wacquant, however, puts it more
radically saying that the ones who should not be seen outside in the society are the ones sent
to the prison. This is also the phase where the accused receives the chargesheet which is a
document that record all the criminal sections that the person is booked under. Once the
chargesheet is filed, the case is committed to a sessions court or lower court or district court.

5.4.5.1.PRISONS

There are different categories of prison. The three main ones are: Central Prison, District
Prison and Sub-jail. Central prisons are intended for prisoners with long sentences while the
district prisons are for those with short sentences. Central prisons house prisoners who have
been sentenced for over three years, and some central prisons have adjoining but separate
areas for female undertrials or convicts. The long term prisoners are usually employed in
organized industries. District prisons house prisoners sent to less than three years detention
and also general undertrial prisoners. District prisons are of various categories, differentiated
according to their capacity (prison population). Prisoners in district prisons are made to do
skilled work such as tailoring or carpentry or other work which does not require much skill,
viz., cooking, farming, gardening, scavenging, etc. The reason for giving prisoners such kind
of unskilled labour is that during their short stay in prison it is neither profitable nor possible
to teach them any trade or industry. But if there are among them men who are already skilled
in some industry or other, they are usually put on work they are best qualified to do. In some
states, the smaller district prisons are also known as sub-jails. The three types of prisons vary
in terms of their capacity, facilities and location. District prison is a larger prison but smaller
than central prison while the sub-jail is the smallest in terms of capacity and facilities. Central
prison is usually located outside a city. In addition to this broad structure are the special
institutions, i.e. women’s prison, prisons for young offenders and institutions for mentally
disturbed and diseased prisoners.

When prisoners are given death sentence, they are transferred to a central prison because
these prisons have the gallows and the high security yard where death sentence prisoners are
housed. The experiences or perceptions mentioned in this section account from the time when
the current prisoners on death row were undertrial prisoners. As an undertrial, the accused
have to adapt to the ‘working’ of the prison. They have to follow certain discipline; they
belong to the category of individuals who have lost their agency. They interact or
come in touch with various ‘actors’ such as the journalists, doctors, lawyers, fellow
undertrials, convicted prisoners, prison officials, prison visitors and their own family. These
actors play a role in shaping the further process of their incarceration.

When the prisoner is first transferred to a judicial custody, s/he has to undergo a medical
check-up. This is in accordance with the rules that govern the prison that whenever an
accused is taken from the police custody into judicial custody, there has to be a health ticket
issued and stored in the files of the particular prisoner. A prison officer said that it is mainly
done so that in case the prisoner has undergone torture in police custody and dies in judicial
custody, the prison does not want to take the responsibility of the death of this person. Hence
this medical check-up is an ‘anticipatory bail’ in case of death due to torture. According to
prisoners, this medical check-up is just a formality because in reality, the prison doctor does

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not record any injuries sustained from torture. However, one prisoner reported that he was
thoroughly checked because his co-accused consumed cyanide capsule and died.

5.4.5.2.PRISON OFFICIALS

While the prisoner is an undertrial, s/he is taken to the court for the trial. A court date comes
after every 14 days in Indian courts. However, there are always problems with escorts. The
police remain the escorts of prisoners. The prison hands over the accused to the police, they
take them and bring them back after their court dates. According to the law an undertrial
should be treated as ‘innocent till proven guilty’. However, the reality was a bit different for
these prisoners. Prisoners narrated their experiences of being humiliated by the prison
officials, prison visitors, fellow prisoners and their families as well. Prison visitors and
officials discriminated them on the basis of the crime they were accused of for the concept of
“innocent till proven guilty’ according to prisoners only exists in legal documents and texts.

Another process that takes place while in judicial custody is an ‘identification parade’.
Identification parade is the process where witnesses [cases where there are eye-witnesses] try
to identify the accused. Prisoners describe this process as a very humiliating experience one
reason was that police or prison officials influenced the witnesses. For instance, the police or
prison officials ask the witnesses, ‘Isn’t this the same person that you saw?’ In instances
where the witnesses say that it was not the same person, the witnesses would be taken to
another room and after a while they would say, ‘Yes, it is the same person we saw.’

Prisoners also said that their photos were already published in the newspaper which did not
help them. These photographs are given to the media by the police. One of the prisoners said
that the police and the media are hand-in-

glove and the police tell the journalist that they will give them ‘juicy’ crime

stories for their newspaper but they should turn a blind eye to the torture in custody. During
the identification parade, prisoners also reported that they were called various names based
on their crime especially the ones who were accused of rape and murder. Most of the
prisoners who are on death row were involved in cases which were already hyped in the
media. A lot of them were hence already considered ‘dangerous’ even in the prison and were
placed in maximum security prison even as an undertrial. Hence there was not much
interaction with co-prisoners. In addition to this, there is also a very peculiar process as they
are in judicial custody which is called ‘body warrant’. Prisoners reported that the court issues
a ‘body warrant’ against them and thus they are taken out of the judicial custody, once again
to the lock-up. This makes their situation vulnerable. This is done in order to ‘investigate’ the
crime, however the ones against whom the body warrant is issued becomes vulnerable to
torture or threatened and/or tutored.

A few prisoners had resorted to hunger strike while they were in prison as undertrials. This
was mainly to awaken the officials to meet their demands. The prisoner told that they had to
go to 15 different courts for their cases. Hence they organised a hunger strike to club all the
cases together and also to seek a CBI enquiry. He said that their demand for clubbing all the
cases together worked out but the CBI enquiry never happened. He added that none wanted to
listen to the poor. Prison officials interacted with them on a daily basis. Many reported that
they were beaten by prison officers while they came to judicial custody. While beating one of
the prisoners who was arrested for murder, the prisoner officer told, “You have a big body.

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Why do you have to come to the prison? Why did you make this mistake?” In another case of
caste violence, the prison officer who belonged to the same caste as the victim beat the
accused who belonged to a different caste and said, “How dare you kill a person belonging to
my caste? We will make sure that you get the harshest punishments even death penalty.”

Prison officials are also aware that prisoners are intimidated by the ‘prison’ itself. One of the
prison officers told me that when prisoners come to the prison, they lose half their smartness.
Prisoners also perceived that the prison

officers did not act in the interest of the prisoners; instead they supported the police officers
in ‘handling’ the prisoner. Prisoners who were Muslims and were arrested for ‘terrorist’
activities narrated experiences of how they felt discriminated against because of their
religious identity. One of them said that while he was an undertrial, the Superintendent of the
prison was so angry with them (him and his co-accused) that the officer burned their ‘Holy
Koran’ (Holy Scriptures of the Muslims). He also said that they were placed in an ‘anda cell’
(egg cell) which can accommodate only one person at a time. However they were five in that
cell. This prisoner said, “We must be given animal rights and not human rights because
animals are treated better than us”. Besides this, the Muslim prisoners narrated that whenever
they asked for an Urdu newspaper, they were called Pakistanis.

In another case, a high ranking police officer came to the prison and interrogated the accused
whereas by law this would not be possible. This prisoner was accused of kidnapping for
ransom and murder. The officer asked the prisoner if the victim he had kidnapped was still
alive. This prisoner said that if the officer brings back his sister’s dignity which was lost
when police officers molested her or if the officer would bring back the days his old mother
spend in police lock-up, or take away the false charges of the brother who is accused of the
same crime or bring back the other accused whom the police killed calling it an encounter;
then he will tell the officer if the victim is alive or dead.”

5.4.5.3.PRISON VISITORS

Another set of actors that prisoners interact with while in custody are the prison visitors. In
India, prisons are a state subject. The prison visiting system in all Indian states has two types
of visitors - The Official Visitors (OVs) and the Non-official Visitors (NOVs). The official
visitors include the Inspector General, Director of Health Services, District and Sessions
Judge, Additional District and Sessions Judge, District Magistrate, Deputy Inspector General
of Police, Additional District Magistrate, Sub Divisional Magistrate and Civil Surgeon or
Medical Officer. NOVs include members of civil society or human

rights commission.472 One of the prisoners said that the State Human Rights Commission’s
President who was a retired judge came and told, “I can only listen to you but do not have
any powers to change anything.”

Another prisoner who was arrested for rape and murder accounted that the prison visitor who
was an executive Magistrate asked him, “‘Mr. Z tum hai? (Are you Mr. Z?) How many more
people have you murdered? How many more rapes have you committed?” This prisoner said
that at least five Magistrates have asked him questions like these. He blames it on the media
which portrayed him as a beast. The prisoners also said that they sometimes do not know who
visits them. One of them said that they do not know that Human Rights Commissions come
to the prison or not. He said that they are not introduced to them. If they are introduced, they

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are prepared in advance about what to tell the visitors. One of the prisoners who belonged to
a case where the trial was delayed for four years complained to the prison visitor about the
delay of four years. The visitor asked him regarding the stage of the case. When he heard that
the cross- examination was going on he told the prisoner, “Oh in four years, 66 witnesses
were examined, it is a great thing. So be happy and don’t complain.”

However, one of the positive accounts of judicial custody from a prisoner was that judicial
custody was not as intimidating as the police lock-up. This prisoner said that if he had known
that he was going to be sent to judicial custody, he would have told the Magistrate about his
actual experiences in the lock-up. He now knows that the judicial custody is different from
the police lock-up and that he should not have been afraid to tell the Magistrate about his
plight in the police custody. At the same time, he said that there was no assurance that one
would not be sent back to the same police against whom one complains.

5.4.6. TRIAL

The next process leading up to death penalty is the ‘trial’ process. The trials of death row
prisoners have sometimes taken over seven years or sometimes it has finished in two years. In
this process they also meet various ‘actors’. Some of them are government/state lawyers,
public prosecutors, media personnel, Magistrates or judges, police and escorts. Prisoners
narrated their interplay at various junctures with all these actors at some point in time. Further
to set this process in context, it is imperative to comprehend their experiences and
perceptions of court proceedings while they were undertrials. This section begins with a
narration on the escorts following their experience and perception on court proceedings. This
process discusses the experience and perception of prisoners about lawyers,
Judges/Magistrates and finally the media too.

5.4.6.1.ESCORTS

Escorts are the police who take the prisoners to the court. As mentioned earlier, a court date
typically occurs after every 14 days. Prisoners have reported that they were not taken to
courts regularly. One of the reasons for not being taken to courts was lack of police escorts.
As a student social worker in the prison, I have observed the absence of escorts which was
due to ‘bandobast’ or ‘nakabandi’. Bandobast literally means ‘preparation’ which is
providing security and preparing the ground for a politician. Nakabandi literally means
‘stopping at the junction’. Naka (junction) bandi (stop) is conducted at junctions to stop
vehicles and check them because the police receive information about criminal activities.
First, priority is usually given to bandobast or nakabandi and hence there are no more police
left to escort the undertrials to the prison thus cancelling the court hearing. This is one of the
reasons that prolongs the undertrial period. Prisoners often resort to hunger strike if they are
not taken to court regularly over a period of time.

The prisoners have shared the experiences that they had with the police while being taken to
the court. A police escort takes all the prisoners who have their court-dates on a particular
day. So, that could mean around 50 prisoners or more. The escort comes at 10 a.m. The court
timings or the case hearing for prisoners are in different court rooms although in the same
location. Hence once they are taken out, they remain in the court the whole day and they
remain hungry because food was not provided to them by the police until very recently. A

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recent judgment said that prisoners have to be provided dry food if they are in the court the
whole day. However , most of the prisoner on death row were undertrials before this
judgment was passed and have remained hungry on their court dates. They also did not eat
food in the evening because food is distributed at 4 p.m. and prisoners are not physically
present to collect their food. Generally their co-prisoners take food for them but that is not the
case always. Families of prisoners also bring some food to the court but they generally have
to pay bribes to the escorts for this food to be given to the prisoner.

Another occurrence reported by some prisoners was being chained while being taken to the
courts. These prisoners already were known to be ‘dangerous’ criminals because of the crime
they were arrested for. Hence the police ‘justified’ themselves when they chained these
prisoners. For instance, one of the prisoners said that he was chained the whole day from
morning till evening because he was a ‘dangerous’ prisoner according to the police. He said
that his sister wiped sweat off his brow. He said that it was difficult for him to climb into the
police van. This went on for a year as his case was in a fast-track Trial Court. One of the
other methods used by police escort while taking undertrials to court was to tie hands of
undertrials with a rope – two prisoners tied on one rope thus forming a human chain of
approximately 4-6 prisoners. This is done to prevent them from ‘escaping’ and I have seen
this when I was in the field and prisoners perceived that the cattle are treated with much more
dignity than them in this situation.

5.4.6.2. COURT ROOM EXPERIENCES

While describing courts, one of the prisoners said, ‘A Court is like a machine. It could be
very well a computer instead of being a human being. No one wants to listen to you.’
Prisoners said that in the court they were mute spectators and did not understand most of the
proceedings. English seemed to be a major trouble-maker for the prisoners. For instance, a
prisoner said that when the death sentence was pronounced he did not understand as it was in
English. Another one said that the proceedings in High Court were in English and he did not
understand anything and a guard translated it to him at the end of the proceeding. Yet another
prisoner said that when he was brought to the court, 14 witnesses were already examined.
The proceedings were in English and it was very difficult for him to follow that. According to
him, his case went to seven different judges.

Prisoners felt there was a loss of agency and autonomy in courts and at the same time they
also called themselves ‘invisible’ in court rooms. For instance one of the prisoners said that
no one asked for my opinion about the case in the High Court, not even the judge before
pronouncing the judgment. Prisoners said that they were present but they remained invisible
because no one asked them their opinion. Prisoner’s opinion about Lower/Sessions Court is
different. One of them said that the proceedings in lower courts took place in the local
language. One is able to follow it most of the time but they are not asked anything. Besides
that the lawyers ask them to be quiet. At the end of the trial, the prisoners are asked if they
have anything to say. One of the prisoners on this aspect of the court said that there is no
point in giving them a chance to speak in the end while during the whole proceedings one is
invisible and mute.

One of the other actors is the public prosecutors (PP) who according to the prisoners leaves
no chance to humiliate them in the court room. It was generally in the last argument that
death penalty was demanded. One has to bear in mind that the prisoners who are on death
row belonged to the category of ‘rarest of the rare’ crimes. Their crime ‘stories’ were

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gruesome and have been published vastly in the media. According to the prisoners this was
exactly what the PP picked up during the last argument. For instance, one PP said that the
prisoner should not be left or acquitted or given life imprisonment or else he will kill many
more people. In another case, two prisoners argued their case themselves because their
lawyer failed to appear in the court on important dates. In this case the PP said when two of
them can actually defend themselves so brilliantly what is the guarantee that they cannot kill
someone thus demanding capital punishment for both of them. They said that they were given
death penalty based on other evidence but this was one of the arguments made by the PP.
Another very ‘common strategy’ used by PPs, according to the prisoners is to convince one
of the accused to become a ‘pardon witness’ which means that this particular accused would
witness against the other accused and therefore would be pardoned and given a lesser
punishment. One of the prisoners said that pardon witness has to be produced within 90 days
of the arrest, however, in most of the cases, this time period is not observed and sometimes a
pardon witness is used even after three years of the trial. Also prisoners have mentioned
about PPs being present while they were interrogated by the police/CBI for the first time. In
some cases PPs also ask the Magistrate to include certain Indian Penal Code sections in the
middle of the trial and the Magistrates agree to it. These newly inserted Penal Codes are the
ones which could give them death sentence. According to the prisoner on such important
dates, their lawyer was ‘missing’ from the proceedings.

5.4.6.3.LAWYERS

This leads me to the next section which is about lawyers and the prisoners’ perception and
experience of their interactions with the lawyers during the entire process. More often than
not, the prisoners would have legal aid/state/government lawyers because hiring a private
lawyer was beyond their financial capacity. One of the criteria for a good lawyer according to
a prisoner was that the lawyer did not take any money from them but what the prisoner did
not realize was that since he was a legal aid lawyer, s/he is not supposed to take money from
the prisoner. Most of the prisoners said that the lawyer’s assistant would come instead of the
lawyer for the hearing. One of the legal aid lawyers asked a prisoner for Ten Lakhs rupees
(18,000 Euros approximately) but when the prisoner said that he or the family had no money,
the lawyer agreed to a sum of Rs. 500/- (9 Euros approximately) per date he appeared. When
the family could not bring this money, the lawyer did not appear for the hearing but his
assistant came and took another date. Another prisoner narrated

how he had to sell his property and his wife’s jewellery to pay the lawyer. Also many
prisoners said that their houses were sold during the trial period to pay the lawyer and their
families either lived on the street or in some relative’s houses. One of the prisoners informed
that his lawyer suggested that he should pay the public prosecutor Five Lakes Rupees to
dissuade him from arguing in favour of death sentence. . This prisoner informed the lawyer
that he and his family were very poor and could not bring this huge amount of money from
anywhere. There were prisoners who were arrested for dacoity and murder. The court did not
verify if they really were dacoits or not. Had they possessed the money, they would have at
least had good private lawyers.

Apart from being deliberately absent because of the non-payment of fees, lawyers also went
to the extent of blaming the prisoners for signing blank papers as ‘confessional statements’
while in custody. One of the lawyers told the prisoner that he should not have signed those
blank papers. The prisoner said that instead of arguing in the court that the statement was
extracted from the prison under pressure and intense torture, the lawyer would make the

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prisoner feel guilty about signing the blank paper. Another classic behaviour of lawyers
according to the prisoners is that most of them do not respond to the letters of prisoners or
would lose important case-files or other documents. Prisoners said that they have written
plenty of letters to their Supreme Court or High Court lawyers but they never respond to the
letters. Additionally, lawyers have managed to lose crucial documents of prisoners which
could have eventually even released them. They have evaded the responsibility of obtaining a
duplicate copy of these documents.

Another experience of the prisoners with the lawyers was that the lawyers did not argue in
their cases. For instance, one of the prisoners said that his lawyer did not argue the case in the
end and conducted the cross -examination of witness for only ten minutes. Yet another
prisoner said that the lawyer did not cross - examine the witnesses at all. While narrating
about the absence of the lawyer, a prisoner said that during the court proceedings, the lawyer
never listened to him and was absent during the argument and the judgment. Yet another
prisoner accounted that he was taken to the court on the last day of the trial and when his
death sentence was pronounced the lawyer did not come and he was all alone there. Another
prisoner said that just before lunch-time, the judge pronounced his sentence in English and
left immediately. Since the judgement was pronounced in English, the prisoner could not
comprehend the sentence. The lawyer was not present and it was the ‘awaz lagane wala’
[court announcer] who came and asked him to sign the judgment copy and told him that he
had received [phasi saza] death penalty.

Contrary to the above, some prisoners also reported about being satisfied with their legal aid
lawyers. One of them said that the lawyer appeared for every hearing. Another prisoner said
that the Supreme Court lawyer he had was extremely proactive and replied to letters that he
wrote. In another case of private lawyer, the prisoner said that he was very happy with the
lawyer but this lawyer was attacked by the family member of the victim and hence had to
discontinue. The prisoner had to therefore take a legal aid lawyer because he could not afford
to pay another private lawyer the second time.

5.4.6.4. JUDGES/MAGISTRATES

Judges/magistrates also play a crucial role in the process of the trial. Foucault says that the
sentence that condemns or acquits is not simply a judgement of guilt or a legal decision that
lays down punishment. This sentence bears within it an assessment of normality and a
technical prescription for a possible normalisation and continues that today the judge –
Magistrate or juror –does more than ‘judge’. This encounter with the one who is more than a
judge is for the second time after their initial production ‘within 24 hours’ of arrest. This
second encounter is when they are committed to a Sessions Court and assigned a judge. This
is also the judge who pronounces the sentence. In most cases, the judges do not speak to the
accused asking for incidences of torture. For most of the prisoners, judges depicted
‘authorities’ who were on a higher platform both literally and figuratively. One of them said
he never got a chance to speak to the judge even though he wanted to say something to the
judge. Some prisoners were however given chances to speak in the end.

Many a times these judges are transferred before they can pronounce the sentence because of
the routine transfer. According to the prisoners, some cases are influenced by political parties
and some judges are deliberately transferred out of certain cases. In one case of transfer, the
prisoner narrated that the Magistrate wanted to talk to him alone but the police man told her,
‘Madam he is a dangerous Muslim fundamentalist.’ The Magistrate replied that he might be

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dangerous for the policeman but not for her and insisted that she wanted to talk to him alone.
She enquired about his treatment in the police custody. This prisoner said that this incident
restored his trust in the Judiciary again. He was not treated as a ‘terrorist’, ‘someone to be
scared of’ just because he had a Muslim name or had a beard. In this case, the Magistrate was
transferred to another court immediately after this incident. In another case a certain group of
prisoners were acquitted in 45 cases due to lack of evidence, therefore this judge was
transferred. His crime was he had acquitted the prisoners in 45 cases. The prisoner said that
the next judge who came was ‘not good’. This judge gave them death penalty in almost all
the other cases. The lawyer even argued that they have already spent ten years in prison and
could be released but the judge went on to give them death penalty.

While prisoners said that their lawyers were corrupt, this allegation also extended to the
Magistrates. For instance, a prisoner said that everything in the court was pre-planned
because before the case began; the Public Prosecutor, Magistrate and police met in the
Magistrate’s chamber and decided beforehand. Another prisoner said that the case was in
their favour however in the end, the judge was bribed and hence the decision was not in his
favour. Many prisoners said that there was political influence in the decision -making
process. For instance one of them said that Kasab’s 475 trial affected their cases negatively.
These prisoners were also in the ‘terrorist’ groups and they claimed that their cases were dealt
with strictly because of the pressure of the State’s right-winged ruling party. Another prisoner
who claimed that his occupation was robbery said that he had robbed all his life and would
not mind being imprisoned for robbery. However he has been imprisoned for a crime he has
not committed. According to this prisoner, the court clerk informed him that the judge had
taken a bribe therefore he was going to get a death sentence. According to him, he knew
beforehand, that he was going to be given death penalty.

Prisoners have also been ‘angry’ with their judges. In one case a prisoner was very upset with
the judge for not ‘listening’ to him. He beseeched the judge that he should finish their case at
the earliest because he wished to go back to his family. According to him the judge did not
listen to him which made him very upset. In that state he took his slippers and hurled it at the
judge. The first slipper fell on the table and the second hit the judge’s shoulders. An FIR [first
information report] was registered but the judge recorded that the slippers hit the judge’s
clerk and not him (most probably to avoid the ‘shame’). The next day he told the judge that
he wanted to speak to him however, the judge told him that the court would not listen to him
anymore instead he ought to listen to the court. This judge continued with the evidence and
pronounced the verdict. The prisoner said that since he disrespected the person who was in
the honourable chair, which is one reason why this judge should morally not continue to
remain the judge in his case. When this prisoner went back to the prison after the slipper
incident, he was not given food for a few days and was denied visits from his family. When
he enquired with the superintendent of the prison the reason, the superintendent said that the
Magistrate told him orally to punish him this way. The co-accused in this same case said that
the judge was in an ‘angry mood’ when he wrote the sentence and if this incident had not
happened, they would not have probably received death sentence.

Prisoners are allowed to speak in the end before the judgement is pronounced. In one instance
where a group was arrested for murder case, they told the judge that they did not have any
connection with these cases and that they were framed. According to them the judge did not
pay any attention to that. Then one of them said that if the judge was going to book them for
the 45 cases of murder and robbery and if they have really done it, they should at least have
the money. He said that they did not have money or ration cards or their names on the voters

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list. Again the judge did not pay any attention to this. Another prisoner said that during the
court proceedings, the judge dozed off. He said that those who have money are not targeted
because they bribe the system and are set free within a year or two. He lamented that it was
the poverty-stricken ones like them who received the death penalty. In one case when the
prisoner was given a chance to speak in the end. He appealed to the court that he should be
given a chance to live a good life and be a good citizen, because he had an aged and widowed
mother and a young wife to look after. However the judge pointed out that it was a shame
that he had killed someone and wished to lead a normal family life with his wife and children.
In another case, the judge asked the prisoner if he wanted life or death sentence. He said that
he had a little daughter and hence the judge should give him a smaller penalty but he
eventually received the death sentence.

The prisoners talked about unfair trials and one of the prisoners said that he asked for an in-
camera trial so that it would be evidence later. It would have ensured transparent proceedings.
Instead the court issued a ‘contempt of court’ notice because the prisoner had asked for an
‘on-camera-trial. According to the prisoner, the system did not want an on-camera trial.
Another prisoner said that the Magistrate did not allow his lawyer to cross- question. Yet
another prisoner asked for a Central Bureau of Investigation (CBI) enquiry into his case – 93
murder cases charged against this prisoner and his family. However the court rejected the
demand for a CBI investigation into this prisoner’s case.

There were also instances where prisoners felt justice was restored. For instance, a prisoner’s
wife was arrested along with her children when she came to visit him in the prison. He said
that for one month and five days his wife was in police custody he did not know anything
about her whereabouts. When this prisoner was taken to the court he told the Magistrate that
he has not seen his wife after she was arrested and does not know where she was. The
Magistrate told, “Take him back.” He was taken back to the prison and brought to the court
14 days later and it was the same Magistrate. He reported again that it was 14 days since
heard from his wife and again the Magistrate said, “Take him back”. This time he stood there
and told the Magistrate, ‘This is the place where we can tell our sorrows and pain but nobody
wants to listen to us.’ He banged his head on the wall. Then the Magistrate asked what was
wrong and he told the incident. After this ‘drama’ the Magistrate immediately enquired with
the police and found that they were indeed in police lock-up. He ordered them to be presented
before the court and they were then transferred to judicial custody the next day. So even
though the prisoner had to go to the extent of banging his head, he perceived that he finally
found justice in that situation.

5.4.6.5. MEDIA

Media is another actor in the process of death penalty. Journalists, newspapers, TV channels,
films all play a role in the trial of a prisoner. The cases of ‘high profile’ prisoners are often
written or broadcasted widely in the media which makes it a biased-trial from the beginning.
It often turns out to be a trial by the media. This is an experience which can be studied in
detail again on how media influences the trial and finally nails the prisoner to death.
However, the prisoners mentioned their experiences with the media very briefly. According
to the prisoners, media is not independent of the ruling political government, the opposition
or other state machineries like police and prison. Prisoners said that media never wrote
anything ‘bad’ about judges or lawyers or the police. According to the prisoners, the media
writes the police version of the ‘crime’ in the newspapers. Some prisoners narrated that their

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case was so sensationalised that there was a television series made of it. Some prisoners filed
articles written about them while some did not bother to read it.

One of the prisoners said that the journalists wanted to take his photograph but did not want
to listen to what he had to say. Another prisoner showed me a report about him in the
newspaper which was his ‘daily routine’ in the prison. He said that he did not give the
information to the journalist yet they had a version of what he did in the prison on a daily
basis. He said that the prison official leaked his information to the journalists. He told the
prison officer, “You did not do justice to me”. This prisoner further said that he was
demoralized because of this incident and that this report further made it

difficult for him to cope with the burden of death penalty.

Another prisoner had very many sleepless nights thanks to the way the media portrayed him.
His photo was published in the newspaper the very next day of his ‘shown’ arrest-date. The
media branded him as a ‘rakshas’ (a devil). He said that he feels restless about it and blames
the media and the police for portraying him as a ‘bad’ person. The children of prisoners are
susceptible to the impact of the parents’ arrest as they are very vulnerable. The only woman
on death row said that the journalist not only photographed her but also her children. Their
photographs appeared in the newspaper and the television the next day. This act of publishing
their photographs in the media created a huge stigma for them in their schools and the society
they lived in. Similarly another prisoner said that the newspapers only wrote negative things
about him – that he was fashion-conscious and showed interest only in wearing fashionable
clothes instead of being bothered about the crime he had committed.

It was not just printed reports that did a lot of damage to the prisoners, it was the video
coverage of the investigation as well that compounded their plight. They were forced to
confess their crimes to the journalist. Similarly another prisoner said that he was forced to
give an interview for a television. He said that everyone could have seen that he was beaten-
up and injured however no one came to his rescue. In a similar case another prisoner who was
held in detention for three months said that when the police wanted to go public with their
case, there was a TV reporter who came to the police station. This reporter asked him ‘Did
you commit the murder?’ The prisoner said that he wanted to touch the journalist’s feet and
tell her that he has not done anything and that she must help them. Then he looked at the
inspector and the inspector showed a signal that he should say ‘yes’. This prisoner was forced
to admit to the journalist that he had committed the murder. According to the prisoner, then
the inspector joined in and said, ‘Pakka [For sure] he has done it, Madam’. This prisoner said
that the inspector publicised about them as being wild lions hungry enough to kill and happy
when they would hear the sound of blood trickling from the person’s body whom they
murder. In this particular case, I made a home -visit to this prisoner’s house. They were
extremely poor and did not earn enough even to afford two meals per day. The wife of this
prisoner looked into my eyes and asked me, ‘Do you think we are dangerous people wanting
to kill other human beings?’ Another person from this same gang asked me, ‘Madam you sit
with us and interact with us, do you think we are dangerous people ready to drink other
people’s blood?’

Crimes are often committed in an act of rage but the media reports project such a gruesome
picture about the prisoners that everyone forgets that the crime was an act of rage. Trial by
media is always conducted in cases of prisoners on death penalty. Prisoners echoed this
perception that if the media did not put so much pressure in their case may be they would

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have been free now. They said that most of them received the death sentence based on media
pressure and circumstantial evidence. Further another prisoner said that media and IPC
(Indian Penal Code) should be separate. The only positive account about the media was when
one of the prisoners said that his family came to know through the newspapers that he was
transferred to a central prison after the death sentence was pronounced. They could thus
immediately come to the central prison to meet him.

5.4.7. SENTENCED TO DEATH

In the previous process of the trial there was an interplay with actors like the media, police,
prison officials, lawyers, judges, and their families. The next process is the final process of
being sentenced to death. Once prisoners are sentenced to death they are transferred to the
high security yard. These high security yards only exist in central prison which typically
would have the gallows. But some prisoners also reported that since they belonged to the
‘rarest of the rare’ category or are the so-called ‘fundamentalist’ or ‘terrorists’, they were
housed in the high security yard from the time they were transferred to judicial custody.

During the trial, death penalty is usually ‘demanded’ or ‘spoken out’ in the final argument.
For instance, a prosecutor in the final argument said, “These are wild beasts who cannot be
reformed”. Another prosecutor argued, “They are cold-blooded murderers and if let off free,
they would commit murder and rape again.” Some prisoners knew from the beginning that
they would receive death penalty while some were caught unaware. One set of prisoners said
that their lawyers advised them to ‘demand’ for death sentence on their own because it would
be easier to acquit them from a death sentence than a life imprisonment in the High Court.
Another prisoner said that the public prosecutor did not demand for death sentence but the
judge handed over the punishment anyway. He said that death sentence should be eliminated
from the Constitution because the law is biased against the minority in India. He said
that the minority never gets justice and RSS , BJP think that every Muslim in India is a
‘terrorist’. He continued that it is not only India that is so unjust but also USA where the
Blacks are more likely to be convicted than a white person.

After the final arguments, the judge writes the judgment which takes a week or two and after
that the judgment is pronounced. Some prisoners did not expect a death sentence at all. In one
instance, a prisoner said that if he knew that they were going to be given death sentence, he
would have never gone to the court at all on that day and would have stayed in jail. Another
prisoner said that he was completely shattered upon hearing of his death sentence because
contrary to his expectations of a ten year imprisonment, he got death sentence. . The jailor
consoled him in the evening saying that he need not worry and that he could appeal in the
High Court.

After the judgment when the prisoners are brought back from the court, they are immediately
transferred to a high security yard if they are already in a central prison. If they are in a
district prison or sub-jail, then they are taken to the central prison the next day or sometimes
even the same evening. The prisoners do not know the procedure after the death sentence is
pronounced and many of them thought that when they were taken to the central prison, they
were going to be hanged immediately. One of the prisoners, who was housed in a district
prison where there were no singular cells, said that in order to place him in isolation he was
placed in the kitchen because the prison did not have singular cells. He said that he was not

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allowed to meet any of the fellow prisoners however, when his father came to the prison, he
was allowed to meet him in the superintendent’s office.

The prisoners narrated the reasons they thought gave them death sentence. Some said it was a
political case while some blamed it on their poverty and some others their religion or caste.
One prisoner said that there is no justice in this country and that it is a shame to live in a
country like this. There were prisoners who perceived that they were given a death sentence
because they were illiterate and poor. One of them asked me if crime has reduced because the
state has given death sentence to a number of people. He said that the criminal nature of
people must be dealt with in the prison rather than giving everyone death sentence and legally
killing them.

One prisoner said that he is not scared of death sentence but he is worried about his mother.
He perceived that he received death sentence based on the media pressure and circumstantial
evidence. He continued that he does not want to run away from death but he is the only son in
the family and wants to support his family. Many of them questioned the arbitrariness of
death sentence because prisoners who have committed similar crimes were given life
sentences and not death penalty. Another prisoner said that death sentence should be the same
for everyone and not arbitrary and the terms of life sentence should be clearly mentioned as
whether they have to be inside the prison for 14 or 20 years and be released after the
completion of the term.

However there are also prisoners on the death row who opine that death penalty should not be
removed from the law. This prisoner said that when someone plans and does a heinous crime
like raping and murdering a person, then that person should be given death penalty. Another
prisoner who opposes death sentence said that nobody has the power to kill another human
being. He said that judges are not Gods and even they can make mistakes. He continued that
the whole concept of death penalty is to frighten people and it is not practical. He says that
there is a hope that he will live tomorrow and that is what keeps him going. He is just worried
that the procedure would take too long. While there are conflicting opinions among death
penalty prisoners themselves, let us move to the next section to see how they live on the death
row.

5.5. ‘Double-jeopardy’: INCARCERATED ON THE DEATH ROW

A certain prisoner from the study described being on death row as ‘double jeopardy’. He says
that being incarcerated in a prison is a pain but at the same time being on death row is a
double pain and calls it a ‘double jeopardy’. Being incarcerated in the prison has been well-
expounded by sociologists like Sykes, Liebling, and Goffman. They have talked about the
pains of imprisonment. In India, as a rule, death row prisoners cannot be held in solitary
confinement till all their appeals are exhausted which means that till their mercy petition is
rejected by the President of India. None of the prisoners, I interviewed had reached this stage
of their petition being rejected by the President of India. Except 12 prisoners, the rest of the
111 prisoners were held in solitary confinement.

Considering the above description as a backdrop this section essentially describes three
elements of being incarcerated on the death row. Firstly, I attempt to give a glimpse into the
physical structure of the 'institution' the prisoners are housed in. This has been derived from
my observation in the prison and the narration by death row prisoners in the 15 central
prisons and one district prison I visited. Secondly, this section describes the everyday life of

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prisoners which includes their daily routine, the rules they have to follow, their perceptions
about prison officials, prison visitors, prisons as an institution, co-prisoners, their relatives
and finally the 'experie-ception' of the treatment they receive as prisoners on death row.
Finally, it concludes with the analysis of death row phenomenon where prisoners confirm to
the facts stated in the existing literature on death row phenomenon/syndrome.

5.5.1. PHYSICAL STRUCTURE OF DEATH ROW

This section begins with an overview of the physical structure of a typical prison in India. It
further moves on to the ‘High Security Yard’ that a prisoner on death row is housed in.
Finally it describes the cell in which a death row prisoner is placed. The figure (Figure 10)
below represents the structure of this section.

5.5.1.1. PRISON

When one reaches a prison, one cannot overlook the tri-colour (the Indian Flag) hanging in
front of the prison which symbolises the State power over this institution as any government
structure in India. In spite of wanting to be like Elizabeth Fry, the 19th walk in the dungeons
where even prison officials were afraid to walk; I must admit that the prisons intimidated me
in the beginning. The fear eventually wore off but it is intimidating in the beginning. Most
central prisons were built during the Raj (British Era). All the prisons that I visited were built
in the early 20th century. Prisons are typically located in the LULUs which are 'land
unacquired land unused'. This meant that they were far away from the city limits. It confirms
Wacquant’s argument that ghettos and prisons both belong to the same class of organizations,
namely, institutions of forced confinement: the ghetto is a manner of ‘social prison’ while the
prison functions as a ‘judicial ghetto.’

He says that both are entrusted with enclosing a stigmatized population so as to neutralize the
material and/or the symbolic threat that it poses for the broader society from which it has
been extruded. And, for that reason, ghetto and prison tend to evolve relational patterns and
cultural forms that display striking similarities and intriguing parallels deserving of
systematic study in diverse national and historical settings. He further notes that the structural
and functional homologies with the prison conceptualized as a judicial ghetto: a jail or
penitentiary is in effect a reserved space which serves to forcibly confine a legally denigrated
population and wherein this latter evolves its distinctive institutions, culture, and sullied
identity. It is thus formed of fundamental constituents of stigma, coercion, physical enclosure
and organizational parallelism and insulation that make up a ghetto, and for similar purposes.
Much as the ghetto protects the city’s residents from the pollution of intercourse with the
tainted but necessary bodies of an outcast group in the manner of an ‘urban condom,’ the
prison cleanses the social body from the temporary blemish of those of its members who have
committed crimes, that is, following Durkheim, individuals who have violated the socio-
moral integrity of the collectivity by infringing on ‘definite and strong states of the collective
conscience’.

Whenever I went to a prison for the first time; I have always requested to visit the whole
prison with an objective to observe the structure and function of different units of the prison.

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I have been taken to all the places in a prison where ‘normal’ visitors are taken. So I have
observed the kitchen, workshops, and barracks where undertrials or convicts are placed. The
prison is also divided into various age groups and criminal background e.g. A hard-core
criminal is never placed with a first time offender and that young offenders between the age
of 18-21 are placed in ‘Baba’ (baby) barrack and offenders who are older 55 are housed in
‘Buddha’ (old) barrack. The following section describes the various parts of the prison which
includes the main gate, cells, latrines; bathrooms so on and so forth.

Main gate: The minimum dimension of the main gate and the second gate of most of the
prisons, I visited was approximately three meters in width and four metres in height. An
officer informed me that the dimension of the main and rear gates should be wide so that in
case of fire exigencies, a fire tender or a lorry for transporting raw materials/logs for factory
and ration articles could pass through these gates. The gates are made up of strong steel frame
with vertical round or square steel bars of 25mm. diameter or thickness. Each gate has a
wicket -gate which is 0.6 meter in width and 1.5 metres in height. The main gate and the
wicket-gate have strong locking arrangements from within. Both gates have arrangements for
easy opening and closing of shutters. The gates are usually covered with iron sheet from
outside up to the height of 2.5 metres. The wicket-gate has peepholes covered with lead at
eye -level. The main gate is usually painted with colours identical to that of the departmental
flag if prescribed by the State Government. One has to bend to enter the prison through the
wicket gate, yes even me. The main gate is opened only when an official of high rank enters
the prison. Officials such as superintendents, magistrates, judges have the privilege of
entering the prison without bending down. This has been a custom since the British Raj
which exists till today. Guards told me that "officers cannot bend down because it is a
dishonour to bend down; that is the reason the main gate is opened for them". This for me
implies that everyone else can be dishonoured or made to bend to enter the prison. This
further leads me to say, "Each time a prisoner enters the prison; s/he is dishonoured".
Dishonouring begins with an entry into the prison. One of the prison officers told me, “No
matter how smart a prisoner is, when s/he enters the prison, the prison kills half of his/her
smartness.” I was also informed by the guards that the wicket gates from the main gate and
second gate are never opened at the same time. That is a rule that all prisons follow to prevent
prisoners from ‘escaping’. Entry into the prison is only through a single point, that is the main
gate, and all other entry points, even if they exist are closed permanently.

Outside the main gate where one enters the prison; there is no guard. One has to knock on the
main gate and the guard opens the peephole. I passed my identity card and told the purpose of
my visit. The guard came back after a few minutes (in some cases half an hour or an hour
even when you have a prior appointment). This could be because the prison superintendent
has gone for 'rounds and the guard unable to verify with the superintendent. Once when I
was literally inside the gate, I was asked to write my name and address in the register which
maintains the records of everyone going ‘in’ and ‘out’ of the prison. When I left the prison, I
had to sign the same register against my ‘in’ timing. This shows the number of hours I was
inside the prison and also to make sure that I ‘left’ the prison. One is also asked to leave
mobile phones with the guard before meeting the superintendent.

Every prison has tall main gates and huge walls separating them from the normal population
but especially made high so that no one can 'escape' the prison; yet when I visited the prisons,
there was at least one person who had managed to physically escape the prison. In the front
desk, there is a blackboard which records the prison population for each day which is called
as 'counting' the number of prisoners each morning and each evening.

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The space between these two gates is usually around 12-14 metres in length and 5 metres in
width to facilitate gate operations. In between the space there is a reception desk for the
purpose of admission and tracking of prisoners and visitors who enter and leave the prison.
On one side of the space are the offices of the prison officials. On the opposite or the adjacent
side there is generally an administrative section called the 'judicial section' where the records
of all prisoners are stored. It has office rooms, record rooms, enquiry cabins and control
rooms for efficient functioning of the administration.

The sight that I often saw between these two gates were prisoners taken to the court or
brought back from the court, or accused who were brought from police custody to the judicial
custody. Prisoners who were taken to the court were checked before leaving the premises of
the prison. Further to prevent them from escaping their hands were tied to each other – one
prisoner’s hand would be tied with a rope to the next prisoner’s hand, thus forming a chain. It
resembles animals being tied to a stable; however in this case these are human beings. When
prisoners are brought back from the court, they are asked to squat on the floor in their
underwear. This could also be the first – time - accused that are brought to the prison. They
have to go through a security check without any privacy. Everyone walking in and out of the
prison can see them. Women prisoners, if at all are housed in the same prison are checked in
the women's section and never at the main gate. Some women prisoners whom I have
interviewed reported about being stripped and searched inside the women’s section by
women officers. They described it as one of the most humiliating experiences of their lives.

Once the accused is inside the prison, they are given certain articles. It contains an aluminium
bowl for food, an aluminium glass for tea. Usually they are also given cups for taking a
shower or for using it in the toilets. Some of the prisoners (not death row prisoners) have told
me that they do not have separate cups or bowls for collecting food and going to the toilet.
Convicts are given two set of clothes or what is known as ‘prison uniform’ and undertrials are
allowed to wear their own clothes. All prisoners are also given a blanket, bed sheet and a
pillow.

All prisons had mainly four types of housing. Barracks, high security yards or the death row,
segregated confinement and a high security cell. Barracks had an accommodation capacity of
more than 50 prisoners; high security yard housed prisoners on death row; separate
confinement was for the purpose of security and contagious diseases and fourthly the high
security cell where the so - called high profile undertrials are placed. This cell resembles an
‘egg’ from outside and it is called the ‘anda’ barrack or ‘egg barrack’. A plate indicating the
authorised accommodations is always placed outside each type of housing and also at the
main gate. Ordinarily, the number of prisoners confined in a housing unit should not exceed
its authorised accommodation however prisons are always overcrowded and exceed its
accommodation capacity.

Barracks: The minimum height of roofs or ceilings in a barrack is not less than 10 feet from
the floor. The floor of the barrack is made of impermeable material such as cement concrete.
All barracks had verandas which were generally two meters in width. Though ventilation of
the sleeping barracks is of the greatest importance, prisoners are not permitted to close the
windows and ventilation openings with shutter or curtains at their discretion. The ventilation
is however controlled according to the season whenever necessary; otherwise the barracks are
too cold and damp during winter and rainy season. Where accommodation is overcrowded
and does not meet the prescribed standards, secure corridors/verandas are used for
accommodating short term prisoners and undertrials involved in minor and petty offences

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during night. The lights in the barrack are not put out during the night for security purposes.
On observing the barrack, one realises, its operation is similar to the society outside. In the
centre of the barrack, are all the economically ‘rich’ and high profile prisoners. To the
margins of the barrack, where the toilets are or where the floor is generally damp are the
economically ‘poor’ or tribal or the lower caste prisoners. This is a feature, I observed during
my visits. Also another record from a memo is that prisoners on death row have lived in these
barracks as undertrials. Only when their sentences were pronounced were they sent to the
separate yard. However, there were also prisoners on death row who were placed in the ‘High
Security Yard’ from the time they were transferred to the prison due to the nature of their
crime.

Cells: A cell is a single room with an iron gate. Hence it is well-ventilated and every cell has
clerestory window at the back of the cell. The floor of the cell is made of impermeable
material. Each cell is attached to a yard where the prisoners benefit from sufficient air and
light. Each cell is provided with a flush latrine and sleeping berths.

Latrines: Each barrack has WCs, urinals and wash places attached to it. However the ratio of
such WCs to the number of prisoners is always less. Latrines were of the sanitary type with
arrangements for flushing. They were placed on an impermeable base which was higher than
the surrounding ground. The partitions separating the latrines are high enough to provide a
reasonable degree of privacy. The doors of the latrines are only half. This is to control
prisoners and to avoid suicide or fights inside the toilets.

Bathing places: Every prison had covered cubicles for bathing with very less privacy. There
were also prisons where there was a common tub made out of cement filled with water.
Prisoners drew water from the tub and showered outside. This was the case for both men and
women section. There was also a shortage of water supply in the prison during summer.

Kitchen: In most of the prisons, the kitchen was located at the central place inside the prison
so that the distribution of food among the prisoners may be finished quickly. None of the
kitchen was built close to the sleeping barracks. There were exhaust fans installed and
artificial ventilation provided in some prisons. It had floors made of an impermeable material.
The management of kitchen or cooking of food on caste or religious basis is not allowed in
the prison. One can however study these practices. Some kitchens used firewood as the fuel
to cook while most of the prison kitchen had cooking gas. The breakfast preparation began at
2:00 a.m. or 3:00 a.m. depending on the population of the prison. Lunch preparation began
immediately after breakfast was served at 7:00 a.m. Lunch in every prison was served at
10:00 a.m. or 10:30 a.m. The evening tea and dinner preparation begins immediately and was
served at 4:00 p.m.

Hospital: Every central prison had a hospital attached to it with a limited number of beds for
indoor treatment with separate wards for men and women. The location of the hospital was
far away from the barrack. Every hospital ward was constructed to allow sufficient light and
air. The floors and walls were made of impermeable material. Latrines and baths were
provided close to the wards so that sick prisoners would not have to walk far to use them.
There was generally an arrangement for continuous supply of portable water in the hospitals.
However the prisoners do not wish to go to the hospitals because they complained that for
every illness the doctor gave the same medicine. Also according to the rules for the prisoners
on death row; there has to be a doctor coming to their yard every day to check. This visit by
the doctor at least once a week was done only in one prison that I visited. Doctors said that

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the prisoners generally do not have physical illness; most of their illnesses are psychological
in nature.

Work sheds: In different states, the work sheds for prisoners had different activities. In the
North-East where it is popular to work with canes, there were work sheds where prisoners
made cane chairs and other products with canes. In the west, prisoners made prison uniforms
and did carpentry. Carpentry was one of the main activities conducted in the prisons all over
by male prisoners.

Again there was a gender disparity. Women were hardly given any work. Their tasks were
reduced to cutting vegetables for the prison kitchen and it had to be done free of charge.
There were also workshops such as handloom for women prisoners but these were not
functional most of the time.

Recreational facilities: There were recreation facilities for prisoners in their yards. In some
prisons, prisoners used the ground space to play volleyball or other outdoor games. All
prisons had a library which the prisoners said had outdated books. There were also
auditoriums in each prison for cultural programmes and yoga.

5.5.1.2.HIGH SECURITY YARD

This section discusses the yard where death row prisoners are housed. Death row is the cell or
block of cells in which prisoners condemned to death are held while awaiting execution.
There may be within this death row one or more “death cells”, special units in which the
condemned person is kept for a period of hours or a few days immediately prior to imposition
of the sentence. Death row is a prison within a prison - physically and socially isolated from
the prison community and the outside world. Jackson who observed the prisoners on death
row in Texas Prison says that he saw how the death row differs from the rest of the prison
and that none of the usual prison counters of behaviour mattered there because the row was
the single place where the rhetoric of rehabilitation was meaningless (one was there waiting
to die, not trying to be improved) and where the rhetoric of punishment was inappropriate
(the punishment was not time served on the row but execution). He calls the death row a
prison within a prison, a place that is not covered in anyway of the usual set of rule. Wo/men
lived here for years while the legal system decided whether they could be killed or re-
sentenced to a prison term or set free. According to Jackson death row was a special city with
a life of its own, one the outsiders knew nothing about.

Death row prisoners are officially placed in high security yards which have singular cells
within the yard. It is a separate yard or could be called a ‘separate prison’ with a gate. This
yard has singular cells built on a raised platform. For instance in one of the prisons there are
five cells in a row built on a raised platform and opposite to this row would be another row
with five cells built similarly. There is usually a ground between these two rows of cells.
Their segregated living quarters are officially known by different names in different states:
Andheri (darkness) yard, separate yard, high security yard. Unofficially they are also known
as ‘phasi (hanging) yard’ or ‘phasiwale (hanging people) yard’. Officially it is called Andheri
(darkness) yard because it is a yard where condemned prisoners are housed; and the ones who
should not see the light of the day because they are condemned to death. The name ‘separate
yard’ originates because this yard is separate from the rest of the prisoners for security

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reasons or to differentiate between convicted, condemned and undertrial prisoners. It gets the
name ‘high security yard’ because the place is highly secured for they are high profile
prisoners such as death penalty prisoners or political prisoners or undertrials arrested in very
serious criminal cases. Prisoners have expressed their discontent over the nomenclature for
this yard. These have been explained further in the coming sections. High security yard is
very similar to how ‘supermax’ prisons are described in various kinds of literature. This is
generally the typical style of description of the prison.

In India, though death penalty yards are not called as ‘maximum security prisons’ or ‘super
maximum custody’ (colloquially known as supermax in the United States); death penalty
yard are often termed as ‘high security yards’ and very many times parallels can be drawn
between the both. Sykes describes that in the prison the obvious symbols of social status are
largely stripped away and one finds new hierarchies with new symbols coming into play. But
what he claims to be the most important is the fact that the maximum security prison
represents a social system in which an attempt is made to create and maintain total or almost
total social control.

Prisoners in supermax facilities are usually held in single cell lock-down, commonly referred
to as solitary confinement. Congregate activities with other prisoners are prohibited; other
prisoners cannot even be seen from another prisoner’s cell. Communication with other
prisoners is prohibited or difficult (for example, shouting from one cell to the other cell is
prohibited); visiting and telephone privileges are limited. Kings spells out essential elements
of supermax prisons. In supermax custody accommodation is physically separate, or least
separable, from other units or facilities, in which a controlled environment emphasizing
safety and security, via restricted movement and separation from staff and other prisoners is
provided for. He says that it is also for prisoners who have been identified through an
administrative rather than a disciplinary process as needing such control on the grounds of
their violent or seriously disruptive behaviour in other high security facilities.

A so-called ‘terrorist’ was placed in a high security prison in a cell called the ‘Anda’ (Egg)
Barrack. It is a barrack in the shape of an egg for the so-called ‘high profile criminals’.
According to him the Anda (Egg) Barrack is the most inconvenient thing built for human
beings. He said, “These cells are meant for one person and usually there is an average of five
persons in one cell. We must be given animal rights and not human rights because animals
are treated better than us.”

The only woman on death row whom I had interviewed for this study said that during the day
she is out with other women but at night, she is in a separate cell and feels very scared. She
said that she takes the name of God at night and tries to go to sleep. Every 15 days she meets
her husband for 5-15 minutes in the death row where the men are housed. She also told that
the lady officers asked me to remove my bangles; but she did not. She told them that her
husband was not dead and she would wear them as a symbol of her marriage. She said that
they tried to stop her from wearing the bangles but they could not manage. This lady held my
hands and asked me, “Do you think I can kill so many people? Do you think I am dangerous?
After the interview with this woman prisoner, the lady officer told me her version, “This
woman has killed so and so number of people, she is very dangerous and utterly stubborn”.

5.5.1.3. CELL OF A DEATH ROW PRISONER

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Death row prisoners are normally segregated from other convicts serving fixed terms of
imprisonment. The reason for this is somewhat obscure. One of the reasons could be that the
individual is already a “dead man” and thus no longer belongs with the living. Another
explanation could be the threat to the security of other prisoners and prison guards, from
desperate individuals who have literally nothing to lose. But this also emerges from one the
principles of prisons which Foucault describes as isolation. He says that prisoners should be
kept in isolation so that they can be reformed but it is an irony in itself when it comes to death
row prisoner because they are given death penalty on the premise that they cannot be
reformed or they are incapable of being reformed.

I would first describe the cell of death row prisoners with my observation in the yard. It has
essentially three elements – toilet, bed made out of concrete, and a ventilator. There is no
furniture whatsoever in the cell. The door is a barred door made of iron which can be locked.
The prisoners informed me that the cell is lit at night. The toilets are in working condition
according to them. Like any community outside, the ‘rich’ use the labour of the ‘poor’ in lieu
of wages. Likewise in the prison, the ‘rich’ prisoners often ask the ‘poor’ prisoners to clean
the cells and the toilets. There is a water closet and also a place to take a shower. Prisoners
often have pictures of god/goddesses on their walls. The temperature in the cell is very hot
during summer, wet during the monsoon and cold during winter. All the prisoners are
allowed to listen to a common radio, read books and write letters to their families. There is
often space in front of the singular cells where prisoners can exercise. There are no fans in
any of the cells because there is a fear among the authorities that the prisoners might commit
suicide if there is a fan in the cell. They also have a bag with their meagre belongings. The
prisoners also have their files which are found in the cell usually. There are very few
prisoners who leave their files with the prison authorities in the ‘judicial department’ at the
main gate.

Sykes describes the cells as hot in the summer and cold in the winter, cramped and barren. He
says that the stone and steel cellblock seemed to express the full nature of imprisonment as
seen in the popular fancy and that if wo/men in prison were locked forever in their cells, shut
off from all intercourse with each other, and deprived of all activities of normal life, the
dimension of the cell would be the alpha and omega of life in prison. He further says that like
so many animals in their cages, the prison population would be an aggregate rather than a
social group ,a mass of isolates rather than society.

While it is space of their own, they also reported feeling suffocated being locked 23 hours a
day. They are brought out of their cells for half an hour in the morning and half an hour in the
evening. This is the maximum period they are allowed to be out. Due to these rules many call
this situation a ‘jail ke andhar jail’ (Jail within a jail). Another prisoner said ‘There are rules
for sports, food, bathroom and toilet. We want freedom inside the jail. When we want to learn
yoga; we are harassed. The moment we are given death sentence, we should be hanged; so
that at least we don’t face this harassment.’ Nevertheless ‘jail within a jail’ are the exact
words that a prisoner from Texas described his experiences of being on death row. This
essentially draws parallels between experiences of prisoners in different continents and their
experiences of being on death row reflect the same desperation.

It is very evident that overcrowding in prisons is very common but it is truly unheard of that
death row is also overcrowded. In some prisons, a death row cell confined four people at a

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time. It is highly crowded and a prisoner told me, “Madam, it is crowded but whom do we tell
this to or who wants to listen to our overcrowding problems?” According to a prison official,
there are cases

where prisoners from the same ‘case/gang’ are placed in different prisons in the same state to
avoid fights between them or to divide them with the aim to ‘split’ their strength . Another
prisoner said that the cell and the yard resemble a ‘khandar’ (ruined fort) especially because
once a rat came and took away his roti (Indian bread).

A prisoner from the ‘Andheri’ (darkness) yard while describing his difficulty in coping with
the yard said that people are lost in darkness and distant from the world only when they are
placed in the grave. However, the prisoner opined that the death row prisoners are kept alive
in a grave. (Andheri mein gum, duniya se door tabhi hotha jab usko kabar mein uthara jatha
hai. Humko kabar mein zinda rakha hai).

The segregation of one person from the others and to be all alone in a single cell is solitary
confinement. The ‘separate system’, the ‘silent system’, ‘the hole’ and other variants possess
the same vice. The separate confinement of a person with occasional access of other persons
is also solitary confinement. In

a general sense, it means the separate confinement of a prisoner, with only

occasional access to any other person, and that would be only at the discretion of the jailor. In
a stricter sense, the complete isolation of a prisoner from all human society and his
confinement in a cell is so arranged that he has no direct intercourse with or sight of any
human being, and no employment or instruction. To test whether a certain types of
segregation is in Indian terms, solitary confinement, we have merely to verify whether
interdiction on sight and communication with other prisoners is imposed. It is of no use to
provide a view of or a conversation with jail visitors, jail officers or stray relations.

The crux of the matter is communication with other prisoners in full view. Confinement
inside a prison does not necessarily import cellular isolation. Indeed, in a jail, cells are
ordinarily occupied by more than one inmate and community life inside dormitories and cells
is common. Therefore, ‘to be confined in a cell’ does not mean that the confinement should
be in a solitary cell. A prisoner cannot be kept in a single cell or solitary confinement which
itself is a separate punishment. Solitary confinement has the severest sting and is awarded
only by Court. It is a separate punishment which the court alone can impose. It would be a
subversion of this statutory provision (Section 73 and 74 of the IPC) to impart a meaning to
Section 30 (2) of the Prisons Act, 1894 whereby a disciplinary variant of solitary confinement
can be clamped down on a prisoner, although no court has awarded such punishment, by a
mere construction, which clothes an executive officer, who happens to be the governor of the
jail, with harsh judicial powers to be exercised by punitive restrictions and un-accountable to
anyone, the power being discretionary and disciplinary.

There was a certain prisoner who said that when he was initially brought on the death row, he
was allowed outside his cell only for five minutes. Rest of the time, he used to sit and cry.
Then finally the other prisoners told the officers that he might become mad if he is not
allowed to move out freely. That is when, according to the prisoner, that the guards started

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taking him out for longer period out of the solitary confinement. However sometimes when
he cried, the guards said, ‘Oh well, he has started his daily drama.’ There were prisoners who
have been in a single cell for over 17 years.

5.5.2. LIFE ON DEATH ROW

This section describes the everyday life of prisoners which includes their daily routine, the
rules they have to follow, their perceptions about prison officials, prison visitors, prisons as
an institution, co-prisoners, their relatives and finally the 'experie-ception' of the treatment
they receive as prisoners on death row.

5.5.2.1. ROUTINE FOLLOWED BY PRISONERS ON DEATH ROW

One of the characteristics of total institutions is that there is a strict discipline of how the
institution functions. As a part of total institutions, prisoners have to follow certain timings in
the prison and follow a strict regime. Loss of agency forms an integral part of this process.
Agency is ‘the capacity, prisoner steadily lose their condition or state of acting or exerting
power. capacity to exert power and control their destiny as they serve time in prison. Prison
life is completely routinised and restricted, with few opportunities to make decisions or exert
choice in their daily routine. Some prisoner elaborated upon common rules governing them
while some spoke of exceptional rules followed in particular prisons.

The day begins with waking up at 5:30 a.m. After they are awake, the warder on duty unlocks
the cells in the presence of a jailor or an assistant jailor. This is followed by counting of
prisoners. During this time the prisoners take out their beddings and place them at their
sleeping place. They clean their cells and perform their morning ablutions. At around 6:30
a.m. breakfast is served. The food served depended on the region where the prison was
located and the food is according to the typical breakfast of that region. For instance in
Maharashtra, a typical breakfast would include flattened rice or Sabudana khichadi (sago).
Convicted prisoners begin their daily work at around 9:00 a.m. but since death row prisoners
are not allowed to work; they spend their time in their cells. At around 9:00 a.m. there is a
‘round’ by a senior prison officer.

This is the time where the officer checks if all prisoners are present and if prisoners have
petitions or grievances. After the rounds, the prisoners are in the lock-up again. In some
prisons they are unlocked separately for half an hour in the morning and are allowed to
exercise outside their cells while in some prisons, prisoners are allowed outside their cells all
day except during the bandi which literally means ‘being closed’ time which is 12:00 p.m. to
3:00 p.m. in all prisons across India. In the afternoon at 3.00 p.m. prisoners are again taken
one at a time out of their cells for walks or are opened all at the same time in the yard.

At 5:30 p.m. a bell is rung. This is the bell for the closing hour of the cells. Prisoners are
counted and are asked to go into their respective cells. If they are inside the cells like in some
prisons; this ringing of bells is redundant and does not serve any purpose to these prisoners.
After their lock-up; they are released the next morning at 5:30 a.m. and the same routine is
continued.

5.5.2.2. RULES FOLLOWED BY PRISONERS ON DEATH ROW

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Concurrently, there are certain rules that prisoners on death row have to follow. These rules
are frequently arbitrary and vary from prison to prison. In all prisons, according to the rule of
the law, prisoners on death row are not allowed to work like other convicted prisoners and do
not have a concrete way to engage themselves in any other activity. Hence it totally depends
on individuals on how they spend their time. Doing various activities revolves largely around
the status of their case. The ones whose cases are in the High Court are restless and hardly
find the motivation to do anything such as reading or writing. Prisoners’ daily routine also
includes walking, meeting other prisoners, breakfast and reading books. Some of them learn
English from fellow prisoners but most of the time they sit idle or read their case-papers.
Most prisoners said that their daily routine only had one activity apart from walking half an
hour outside their cells- ‘reading or listening to the daily newspaper read’. Some prisoners
even wrote novels, stories and also diaries. There were prisoners who have even published
their writings.

With regard to the dressing pattern, the prisoners sentenced to death had to follow certain
norms. One of the prisoners mentioned that the authorities told them that prisoners on death
row could not wear ‘coloured-dress’ after being sentenced to death but only white. Therefore
only white was the norm. White is also a colour worn for mourning in India as opposed to
black in other cultures. As undertrials they could wear civil clothes in the prison. Some other
rules that were given to them upon arrival in the high security yard were that they could not
come out of the gate of the high security yard or they should go to the lock- up when asked to
and come out when the authorities leave them. Further, they were told that they could not
move without the authority’s permission. About visitors, they were told that only blood
relatives could meet them and no one else. In some prisons they were told that they could eat
‘as much as’ they wanted. One of the death row prisoners told that, when he was brought to
the death row from a different prison, he was told by the fellow prisoners that he would not
be allowed to use his reading glasses on death row. He, therefore, did not bring his reading
glasses with him. He suffers from constant headache because of that. In some prisons, they
were allowed to listen to the radio. While some also said that prisoners on death row have ‘no
fundamental rights’ in reality. This prisoner said that when he came to the prison first he did
not know of any rules and when he and his co-accused asked, they were immediately
transferred because they were ‘trouble makers’. He continued that it was only the ‘khaki’
(police-uniform) which could make and break rules.

Another phenomenon that occurred as a routine in their prison life was being branded or
stigmatized. One of the prisoners said that the prosecution lawyer and judge called him a
‘Muslim fundamentalist’ further adding that he is a dangerous element for the society. (Samaj
ke liye khatharnak, Muslim fundamentalist). Wo/men arrested for terrorist activities were
often called by names such as ‘desh drohi’ (traitors) or ‘Pakistanis’. Another prisoner said
that he was nicknamed monkey. This prisoner said that he became slow in speech after the
police arrested and tortured him. There was a guard on duty while I was interviewing this
prisoner and this guard told me, “Madam his name is monkey and not Mr. A” and started
laughing hysterically. To that, Mr. A immediately responded, “You (system) have given me
this name monkey. I am not a monkey”.

Facilities such as phone, television, radio and books are a privilege than a right for the
prisoners on death row. In some prisons, death row prisoners are allowed to make phone calls
to their families but this facility did not come to them easily. The prisoners had to go on a
hunger strike to obtain these facilities. Some prisoners said that when they went on a hunger
strike in the prison to get some facilities like watching TV or playing games, the prison

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authorities told them that, “You want to fast? Go ahead! You will die and we will say that
you died on your way to the hospital. We do not care about your hunger strike”.

Hunger strike has been used frequently by the prisoners to express their dissent. There are
prisoners who are in the last stage of their mercy petition. They had to go on a hunger strike
to hear from the President of India. One of the prisoners was disappointed with the fact that
he had spent 15 years on the death row and there was no response to his mercy petition. He
discontinued his hunger strike after four months. He was force-fed when he fasted for the first
time but he refused to eat it. There was a second phase of hunger strike. This time the
Inspector General of Prisons and the superintendent convinced him to abandon the hunger
strike so that he could be alive and healthy to receive pardon for his death penalty, if it is
granted. Another prisoner on death row had a kidney problem and the prison officials did not
take him to the hospital even after he requested for it. One day this prisoner became seriously
ill, but he was not taken to the hospital. All prisoners on death row in this particular prison

went on a hunger strike and in consequence to that the prisoner with the kidney problem was
taken to the hospital immediately.

The prison is a social institution designed to meet a multiplicity of functions. Some of these
functions are very explicitly expressed by legislators, court

498

decisions and prison officials, whereas others must be inferred.

scenario there are various functions by prison officials. At the same time prison as an
institution carries out various functions. Prisoners have shared their experience about prisons
and prison officials while being on the death row.

5.5.2.3. PRISONS

One of the prisoners said that prison does not give you any respect or dignity and that one
needs to have dignity over oneself and no one else. Prisoners used the following words such
as shoshan, bigaad dethi hai, shaanti nahi dethi, disturb karthi hai, bhrashtachar, samaj ke
layak nahi rahatha. (Torture, destroys you, does not give you peace, disturbs you, full of
corruption, does not leave you fit to be back in society). Another prisoner said that not even
in one’s dreams should one go to a place like a prison. He said that in prison, they are not
human beings but just a number. Similarly another prisoner said that he did not know how to
survive but he is still surviving each day. He said that nobody looks into their circumstances
and as prisoners on death row they are not fighting with a single person but a whole
community. Another prisoner added “yaha rehena hi muskhil ho gaya hai” (it has become
difficult to survive in the prison). On being asked about his living on the death row a prisoner
said , “Be locked inside for a month, get third class treatment, no medication, do not meet
anyone – then you’ll know how it is to survive the death row”.

While describing about the food received in prison, all prisoners echoed this opinion that the
food is ‘ok’ but only if their minds are ‘ok’ can they eat something. Most of them said that
even when they are given good food they are not in a state of mind to eat it. Some said that
they do not have an appetite because whenever they try to eat, they think about their families
and wonder if they have food to eat or do they go hungry. Another prisoner said that he has
no appetite but he eats everything because everything is equally tasteless. He eats whatever is

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available. There were also prisoners who said that the food given to a mad dog is better food
than what they are served on the death row. He said that food sometimes had maggots and
worms in them.

Receiving education in the prison is a part of the rehabilitation and reformation process of
prison. However this argument falls short of gravity in case of death row prisoners because
according to the system, the prisoners on death row can neither be ‘reformed’ nor be
‘rehabilitated’. The attempt to have access to education has been a struggle for some
prisoners on the death row. One of the prison superintendents said, “You are prisoners
waiting to be hanged - there is no need to study.” There were also prisons where the death
row prisoners while they were undertrials were not allowed to study. However, most of the
prisons allow educational facilities to prisoners on death row. Some prisoners who are
completely illiterate learn alphabets from their co-prisoners who are literate.

There is a prison canteen in every prison and all prisoners can have access to the canteen
including prisoners on death row. They can buy various items from the canteen using their
own money. In this context the maximum amount of money that the prisoners can receive is
Rs. 200/- (Euro 3 or 4 approximately). However most of them do not receive any money
because of their family’s financial situation or because they have lost contact with their
family.

One of the prisoners died on the death row during the research period and the reason for his
death was ‘natural causes’ according to the prison. This prisoner had told me that he had a
major heart ailment, was hypertensive and diabetic. He also had a spine disorder because of
which he suffered severe backache. His eyesight was very poor due to diabetes. He showed
me the reports from the Civil Hospital attached to the central prison which ratified his
illnesses that he claimed he had. He said that outside a beggar is treated better than a prisoner
on death row. He was also the prisoner who said that when a person comes to the prison with
a death sentence, s/he should be hanged immediately and not made to wait for their death.
Out of the 16 prisons I visited, only one prison

312

had a psychiatrist who visited the prisoners on death row every week. In one prison, a
prisoner said that they were given sleeping tablets so that prison authorities are not
‘disturbed’ at night. This prisoner also told me that he stored all these tablets because
according to him these tablets are administered to ‘mad men’ and he did not want to eat
tablets given to ‘mad men’. I asked him if there was no checking in his cell anytime because
according to the prison rules, cells are checked on a regular basis. He said that there was no
checking in the cells whatsoever and even if there was a checking he managed to hide them.
Talking about fellow death row prisoners, one of the prisoners said that fellow prisoners
understand each other very well. He further said that they all received more or less similar
treatment from the criminal justice system, so there were hardly any fights between them.
Furthermore, another prisoner added that since all of them are on death row they do not fight
with each other because they do not know who dies or lives next and hence they are very
cordial with each other.

5.5.2.4. PRISON OFFICIALS

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One of the prisoners said that the way they are treated is not human. They often felt
humiliated with the way the prison officials spoke to them. Prison officials had a different
view about taking care of prisoners on the death row. One of the

499

prison officials said that in his three years of service

he hoped that he would not have to do anything that has to do with gallows and that he does
not want blood on his hands. In contrast to this, another prison official said, “We once
prepared everything for a prisoner to be hanged and then these human rights people
intervened and stopped the execution. I was so sad that the execution did not take place.” In
another instance, after an interview with the prisoners, the superintendent asked me my
opinion about the prisoners whom I had interviewed. I said that I could not assess them so
quickly. The official told me, “Madam, they are hard-core criminals who are never going to
change. You are blind not to see it.” One of the prisoners said, ‘Jail staff is like British times
jailors (British jamane ka jailors hai). They keep us in the dark and do not inform us about
our rights.”

5.5.3. DEATH ROW PHENOMENON OR SYNDROME

The “death row phenomenon” or “death row syndrome” is a combination of circumstances

found on death row that produce severe mental trauma and physical deterioration in prisoners
under those sentences. This phenomenon is a result of the harsh conditions experienced on
death row, the length of time that they have experienced, and the anxiety of awaiting one’s
own execution.500 Classic studies from Camus’s Reflections from guillotine501, Foucault’s
work on punish and discipline502 and Jeremy Bentham’s503 works demonstrate the
experiences of being on the death row. They document the nature and problems of being on
the death row. Although varied in their study approaches, each of these classical works offers
a glimpse of the wider social structures within which death row prisoners are positioned.
Apart from these classical studies there are numerous scholars who have documented this
severe mental trauma, a result of the stress associated with death sentences.

Specific manifestations include an overwhelming sense of fear and helplessness, mental

incompetence, fluctuating moods, recurrent depression, mental slowness, confusion,
forgetfulness, lethargy, listlessness, drowsiness, symptoms of senility (in the form of
rambling correspondence, misplacing objects within a small cell, and expressing
disconnected thoughts), self- mutilation, and insanity. Other associated factors that contribute
to be mental trauma include a cramped environment of deprivation arbitrary rules,
harassment, and isolation from others. The conditions of confinement also appear to
aggravate existing mental disorders. Jurists have also noted the Other associated factors that
contribute to the debilitating mental effects of sentencing a person to death. A United States
Court (California) stated the process of carrying out a verdict of death is frequently so

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degrading to the human spirit as to constitute “psychological torture.” In India, commenting
on a prisoner who had been on death row for many year a, judge noted that the person would
be more or a vegetable than a person and hanging a vegetable is not death penalty.

Death row phenomenon was first described internationally in the Soering case. This is the
case where death row syndrome or phenomenon has been discussed in depth. Very recently it
was Abu - Jamal who described the death row phenomenon. Prisoners narrated their
experiences of being on the death row row and experiencing the death row phenomenon. In
the above sections the prisoners have described the cramped environment of deprivation,
arbitrary rules prisoners on death row have to follow, the harassment they face in custody,
isolation from other prisoners and harsh conditions experienced on death row. The following
section will add about the length of time they have experienced and anxiety of waiting for
one’s own execution and how these two factors contribute to severe mental trauma and
physical deterioration. The mental agony of being on death row is manifested mainly in their
sleeping patterns. Apart from this the emotions displayed among the prisoners on death row
are the feelings of being sad, anxious, depressed, uncertain; guilty, uncomfortable, nervous,
restless, panicking, confusion and fear.

CONCLUSION

It is evident that we have too little information about the manner in which the harshest
punishment in India’s criminal justice system is administered. The political and philosophical
debates relevant to the death penalty must be situated in the context of minute details about
the processes involved and the structural realities of the criminal justice system. Those
debates must also be informed by a substantial understanding about the nature of the death
penalty as a form of punishment. Very often we limit ourselves to thinking about the death
penalty purely in terms of an execution and hardly any attention is paid to the experience of
living on death row. An attempt to truly understand that experience should inevitably lead us
to a more searching examination of the relevant processes.

This Report is a preliminary attempt to understand some of those structural realities and
processes that inform the administration of the death penalty in India. There is a wide gap
between the provisions of law and the realities of its enforcement. The flagrant violations of
even the most basic protections like those against torture and self-incrimination, along with
the systemic inability to provide for competent representation or to undertake effective
sentencing procedures in capital cases is symptomatic of the nature and extent of the crisis
within the criminal justice system. The quality of legal representation emerged as an
extremely serious concern. The absence of any real communication with their lawyers,
baffling court- room proceedings, and no real knowledge of progress in their case at the
appellate stages only intensify the fear and suffering that prisoners experi- ence on death row.

The burdens imposed by the criminal justice system in the context of the death penalty are
extremely difficult to navigate without sufficient eco- nomic, social and political resources.
Much of the discussion of the death penalty is focused on the nature of the crime without

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reference to systemic factors that are at the core of the issue. In that context it is crucial to ex-
amine on whom the burden of the death penalty falls. The socio-economic profile of
prisoners documented in this Report begins to demonstrate that these burdens have a
disparate impact on vulnerable and marginalised sections of society along the lines of
economic status, caste, religion, and levels of educational attainment. While there has always
existed an intuition about this in discussions on the death penalty, the socio-economic profile
presented in this Report is hopefully the first step towards understanding the precise burdens
that such marginalised sections bear in the context of the death penalty. It is imperative that
the socio-economic profile is read in conjunction with the various practices adopted in the
criminal justice system to understand the full import of the methods adopted by the
investigation agencies, the bar, courts, and prisons.

We need to make much more of an effort to understand the nature of the death penalty as a
punishment. It would be grossly inadequate to understand the punishment as only the fact of
‘taking of life’. The conversations with prisoners sentenced to death led to the realisation that
the suffering of the death penalty is not only about the fear of death or not wanting to die. The
dimension of the everyday uncertainty between life and death often does not get the
necessary attention it deserves. Many prisoners de- tested the uncertainty over their lives,
often citing the wait to know whether they would live or die as the worst part of the
punishment. This perspective raises many complex moral questions that we have not really
engaged with. An essential part of that journey should be a focus on the conditions of
incarceration of prisoners sentenced to death in India.

Much of the Report also demonstrates that there is a lot more to the discussion on the death
penalty than the nature of the crime. One important consideration is the persons that prisoners
have become during their time in prison. The law on sentencing people to death and affirming
the death sentences in the appellate stages takes a view of the person frozen in time, reduced
to just that moment when the crime occurred. The law does not seem to have the space and
imagination to account for the changes in the prisoners on death row while in prison. It is
hoped that different parts of the Report will help us to begin understanding the lives of
prisoners on death row beyond the crime they have been convicted for and start a process of
meaningful engagement with issues of reformation and rehabilitation. None of this is to
suggest a justification for the crimes in question but rather to prompt a reflection on the need
for a much more holistic determination of justice in these cases.

A very difficult question that we must address is the impact on families of prisoners on death
row. We do not seem to have the vocabulary and legal framework to address the violent
impact on their lives, given the manner in which such cases are reported. It is important to
recognise their vulnerability and understand how their experience of stigma, social boycott
and tremendous economic impact marginalises them further.

The Report does not seek to make a case for the abolition of the death penalty. However,
integral to the Report’s purpose is to throw light on some difficult questions concerning the
criminal justice system that is used to condemn individuals to death. These questions are not
asked often enough but concern issues that must form the very core of the discussion on the
death penalty. Whether the death penalty should remain or not requires a wider consideration
of factors apart from those discussed in this Report.

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However, a discussion on the death penalty cannot be carried out by ignoring systemic
realities. Irrespective of the sides we may take on the death penalty as a philosophical
issue, we need to acknowledge that the nature of the crime cannot be the only relevant
consideration. The Report indicates that the harshest punishment in our legal system is
administered using a criminal justice system that is in a deep crisis at multiple points.
To rely on such a system not only raises concerns of the rule of law but also asks
questions of our own humanity.

6.4. IMPLICATION, RECOMMENDATIONS AND FUTURE STUDIES

It is impossible to explore the lives of death row prisoners in a 25-minute interview.

However, bringing out the voices of these prisoners to the public seems imperative
in the face of the public opinion that has been formed in India in recent times.
Quoting Justice Suresh once again that we do not know anything about the person
apart from the crime s/he has done. Hence it is important to ‘know’ these men and
women who are on death row. At the same time it is vital too that one is aware that
it is the poverty, social exclusion and marginalization that become an antecedent to
death penalty - that death penalty is a constructed account by the state machinery
and that prisoners on death row situate dignity higher in the juxtaposition of death
and dignity. Nevertheless, there is a vast amount of literature written about the law
and death penalty with specific reference to case laws from the Supreme Court of
India. ‘Lethal lottery’ is a report which talks about the Supreme Court judgments in
India and also does a legal analysis of these judgments. However, this study does
fill the gap of prisoners being on death row and their perceptions never being
studied about. Thus this becomes a distinctive study where the prisoners are studied
and not their cases per se. This does not become a limitation instead it becomes the
strength of the study where the prisoners’ views are taken into consideration and
their experiences are talked about.

The key recommendation of the study is derived from the process of death penalty especially
the process of being in the lock-up. Prisoner have described this stage with immense pain and
humiliation. Even though the dk basu guideline exit, magistrates need to really implement
that instead of giving it a more lip-service. The very protected becomes perpetrators in this
process. However , there have been instances where magistrates have shows great integrity
and have talked to the accused alone. They have managed to elict from the prisoners whether
they were tortured or not in custody. If this happens , then a lot of incidences of torture in
custody could be prevented. The police officer concerned can be prosecuted the same day.
The accused should be sent immediately to judicial custody rather than police custody again.
Detainees should be informed about their rights as detainees in police lock-up. Police officers
need training and their curriculum need to be reviewed.

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In addition to this, the Magistrates also need to be proactive to verify the age of the prisoners
when they look younger. The police want the accused to be nailed not because they are
personal enemies, but because the system puts a pressure on the police that they have to
‘solve’ cases. Hence they go to any extent to ‘solve’ a case. Arresting juveniles, pregnant
women and old adults have been done ruthlessly and Magistrates have closed their eyes to
this cruel treatment by the police. Magistrates have to be more sensitive when young adults,
pregnant women or very old adults are brought in front of them. Also the practice of taking
detainees to a Magistrate’s home has to be stopped or if this continues, the Magistrate needs
to be proactive and talk to the detainee about their treatment in custody. Since the study also
claims that death penalty is a constructed account by the state machinery of police, prison and
court; the legislature should delve into these accounts and act towards a better system that is
fair.

Prisoners on death row have told that they have committed crimes and are remorseful about
it. But there are a few of them who claim innocence. Who looks into their matters? As a
researcher I had my limitations. When a person claims innocence, it is for the system to
review the case. No individual would say ‘I am innocent’ because they want to be free. The
range of deliberation in capturing voices of death row prisoners is extensive and multifaceted.
To generate solid research outcomes and policy changes, there is need for more research
studies in the area of criminal justice. This will further enable in exploring the gaps or
dimension that this study has not been able to capture. Exploring in detail, the link between
media reporting of crime stories and finally leading to death penalty, the relation of class,
caste and education in cases of death row prisoners; the representation of lawyers in cases of
death sentences; the experiences of prisoners in court; women on death row; lives of
prisoners whose sentences have been commuted from death to life; will shedmore light to this
unexplored category of individuals – the death row prisoners.

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BIBLIOGRAPHY:

 Statutes:
(1) The Indian penal code, 1860. 
(2) The Prisons Act, 1894. 
(3) Indian evidence act, 1872.
(4) The Constitution of India, 1950.
(5) Criminal Procedure Code, 1973.
(6) The Prison Security Act, 1992.
(7) The Prisoners Act, 1990.

 Books:
(1) Ratanlal Ranchoddas and Dhirajlal Keshavlal Thakore, Indian penal code, Published by
LexisNexis, Edition 34th, (2014).
(2) K.D.Gaur, Textbook on the Indian penal code 1860, Published by Universal Law
Publishing Co. Edition 4th (2009).
(3) Meetali Handa, Prison Administration and Reforms in India, Published by Notion Press,
1st Edition, (2021)
(4) S.R. Myneni, Prison Administration, Published by Allahabad Agency, (2019).
(5) K.D.Gaur, Criminal law: cases and materials Published by LexisNexis Publications,
Edition 7th, (2013).
(6) Mamta Rao, Law relating to women and children, Published by Eastern Book Company,
Edition 3rd, (2012).

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(7) K.N. Chandesekharan Pillai, Criminal Procedure – RV Kelkar’s Criminal Procedure, 6 th
Edition, (2018).
(8) M. P. Jain, Indian Constitutional Law, Published by Lexis Nexis, 8th Edition, (2018).
(9) T.Padma and KPC Rao, Legal research methodology, Published by New
AgeInternational Publishers, Edition 3, 2014
(10) C.K.Kothari and Gaurav Garg, Research methodology, methods and techniques
Published by New Age International Publishers, Edition 3, 2014.

 Articles:
(1) K.D.Gaur, The poor victim of uses and abuses of criminal law and process in India,
Published in Indian Bar Review by the (BCI) Trust, Vol. XXVII. (July-Dec)(2000).
(2) Vijay Raghavan, Undertrial Prisoners in India – Long wait for justice, Published in
Economic And Political weekle (EPW), Vol. LI No. 4, (January) (2016).
(3) George, Reena Mary, Voices of prisoners surviving the death row in India, Published in
Universitat Wien, (2013).
(4)
(5) Roshin Iqbal, Prison Administration in India, Published in Legal Service India.

 Websites:
(1) http://www.498a.org
(2) http://www.saveindianfamily.org
(3) https://indiankanoon.org/

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