Death sentences¶

Death sentences fell from 103 to 77 between 2019 and 2020. Project 39A partially attributes this development to the delays to judicial activities during the COVID-19 pandemic. Nearly 60% of death sentences in 2020 were imposed before the first health measures were implemented.

In 2018, 162 death sentences were imposed by the courts of first instance, the highest number in 19 years. The majority of these were pronounced in the State of Madhya Pradesh (22 out of 162). The number of death sentences imposed by courts of first instance fell by 67% in 2019 compared to the previous year.

Any death sentence must be examined by every level of the judiciary, all the way up to the Supreme Court. Most death sentences are commuted to life sentences over the course of the judicial proceedings. The Supreme Court confirmed three out of the 14 death sentences it heard in 2018.

According to the law, minors cannot be sentenced to death. Project 39A stated, in their 2016 report, that 18 prisoners facing the death penalty claimed to have been minors at the time of their offence. They added that this is often difficult to prove due to a lack of official documentation.

The majority of death sentences in 2019 were imposed for murder and sexual assault (53%), murder (27.5%) and terrorism (9%).

Amendments to the 2012 POCSO Act in 2019 and 2020 increased the maximum punishment for aggravated penetrative sexual assault on a minor to the death penalty. Almost 65% of death sentences passed in courts of first instance in 2020 were in cases of sexual violence, the highest proportion in the last five years.

Executions¶

Four executions were recorded in 2020, the first since 2015. The individuals were sentenced to death for the gang rape and murder of a young woman in 2012, all as part of the same case.

Prisoners sentenced to death awaiting execution¶

The average time between the death sentence and the execution is unknown. Project 39A provided several estimates in 2016. Persons with appeals pending in the Supreme Court reported a median incarceration period of more than six years. Prisoners whose petition for a presidential pardon was rejected served a median period of almost 17 years. The longest such period of incarceration lasted 25 years.

In 1983, the Supreme Court deemed it illegal to exceed a two years-period between the death sentence and the execution. (T.V. Vatheeswaran v. State of Tamil Nadu). Then, in 2014, a delay of 14 days was imposed between notifying the prisoners their mercy petition was rejected and the execution in order to allow time for relatives to visit (Shatrugan Chauhan v. Union of India). However, Yakub M. was hanged in 2015 just hours after the Supreme Court rejected his final mercy petition.

Pardons and commutations¶

The president of the Republic of India and the state governors have the power to grant pardons. Prisoners condemned to death can file a mercy petition, but the procedure can take several years. An excessively delayed or unjustified response time is recognised as a form of torture and can constitute grounds for commutation. Project 39A reported that in 2016, 28 prisoners’ mercy petitions were rejected by the president seven years after they were filed.

The commutations granted by the high courts and the Supreme Court in 2019 and 2020 fell from 58 to 22 and 16 to 4 respectively. As in the case of sentences, delays to judicial activity during the COVID-19 pandemic could be partly responsible for this decrease.

Due to the poor quality of the court-appointed legal assistance provided, the majority of prisoners sentenced to death hire a private lawyer. Most families, who are usually already in precarious financial situations, borrow money, sell their jewels, their livestock or their houses to pay for their loved ones’ legal representation. They often have to seek legal assistance when their case comes before the Supreme Court as they have already expended all their financial resources. Prisoners sentenced to death scarcely meet with their lawyer before hearings, whether they are court-appointed or not. The lawyers have often failed to study the case files sufficiently, and prisoners and their families frequently complain that they do not keep them informed on the progress of the case.

In addition, the Code of Criminal Procedure states that the evidence and arguments presented at hearings must be translated into a language the defendant understands. Yet, several prisoners facing the death penalty said they did not have an interpreter and consequently did not understand what was happening during their trial.

Women¶

Women are segregated from men in prison. Those sentenced to death are held in the women’s section of Tihar Jail, New Delhi. This is considered the largest facility in South Asia, with an occupancy rate of more than 200%.
The Cornell Centre reported that the men’s quarters were generally larger than the women’s facilities, which were “contained” and “restrictive”. The infrastructure in female prisons was considered worse than that in those for men; they were outfitted, at most, with small clinics and prisoners had to request secure transport arrangements from prison guards to convey them to a hospital for even the most basic kinds of care.
Women sentenced to death have no access to sports or to a library.
The law requires that all prisoners receive a similar amount of calories. Yet, in practice, women receive meagre rations and are forbidden from performing the physical work that would give them access to better quality, more nutritious food.
All women sentenced to death are required to wear a sari.
Children are allowed to live with their imprisoned mothers until they reach the age of seven.

Prisoners sentenced to death are held either in district or central jails. Most states prefer central jails as they are more secure. The State of Uttar Pradesh incarcerates prisoners in one of its 17 district jails or five central jails. Karnataka is the only state that holds prisoners sentenced to death in a single facility: Hindalga Central Jail. This prison has the highest number of prisoners facing the death penalty in the country (45).

By law, prisoners sentenced to death must be separated from the rest of the prison population once a high court has confirmed their sentence. Only the states of Maharashtra, Kerala, Karnataka, Jharkhand, and Bihar enforce this separation. Those awaiting confirmation of their death sentence by a high court are, in most states, placed in cells, barracks, or units shared with other sentenced persons.

The law also requires that persons sentenced to death should only be subject to a distinct regime of detention following the confirmation of their sentence by a high court. In practice, most are treated differently from the moment they are sentenced in a court of first instance. This leads to serious consequences for their life in prison; they are not allowed to work or participate in activities, and their interactions with other prisoners are limited.

Accommodation. Cell allocation varies by state. Some prisoners are placed in solitary cells in “death barracks” reserved for prisoners sentenced to death. They reported that they were allowed to move around the death barracks for between three and 12 hours a day, depending on the prison. Several prisoners sentenced to death said their cells were permanently illuminated. In some states, prisoners sentenced to death are housed in “common barracks” with the rest of the prison population. They are allowed to live under the same conditions: they can play cards, watch television, and participate in certain activities.
In India 30 out of the 67 prisons are equipped with gallows. Several prisoners sentenced to death described experiencing psychological pressure from their presence. One of them reported that the head prison guard showed the gallows to each prisoner sentenced to death upon their arrival. Another said that the guard showed him a photograph of the gallows on his mobile phone. Several guards reportedly asked the prisoner to designate them as his executioner in his “last wish”. This task fetches a sum of ₹20,000 (approximately $270).

Hygiene. Prisoners sentenced to death endure deplorable sanitary conditions. One prisoner, who had been incarcerated for 12 years, revealed that the facility did not have toilets before 2010. They had to use steel buckets which were not emptied daily and consequently gave off such an unbearable and persistent stench that it stopped them from eating or drinking. There were no means of securing any privacy. Prisoners hung their shirts across the bars of their cell to let others know they had to relieve themselves.

Food. Meals are small and of very poor quality. As prisoners sentenced to death are often forbidden from working, they have no access to the more nutritious meals that are reserved for their counterparts who perform physical labour.

Activities and work. Prisoners sentenced to death do not, in principle, have access to the activities provided for other prisoners. Access to education and training is especially unequal. Some prisoners reported having access to education for the first time in their lives. Datta was arrested at the age of 20 and had never gone to school, yet he said that in prison he had been studying daily from morning to evening and can now read and write in Hindi. Another prisoner sentenced to death said he obtained several advanced diplomas and had undertaken a Master in Sociology.
Those whose death sentences have been confirmed are forbidden from undertaking work. This stipulation is almost universally adhered to. This ban endeavours to minimise contact between this “at-risk” group and the rest of the prisoners. Those whose trials are still in progress are allowed to work in most facilities. Their work or training is terminated as soon as the death sentence is pronounced. Nevertheless, some facilities look the other way. One prisoner sentenced to death said they worked making soaps or weaving carpets every day as well as helping to maintain the vegetable garden.
Project 39A reported that many facilities deny access to work and education to those sentenced to death while their appeals process is still ongoing, a process with an average duration of eight years. ¹

Discipline. The law mandates that prisoners sentenced to death be searched twice a day and that they must be kept under constant surveillance. The Supreme Court prohibits placing them in solitary confinement outside of disciplinary measures, which are limited to 14 days. It states that they must be allowed to socialise and take their meals with the other prisoners. In reality, they are frequently confined in isolation for long periods. Project 39A has documented several cases of persons kept in solitary confinement for up to ten years. Testimonials have revealed that some cells are devoid of natural light and the prisoners have to eat their meals there. They are let out for just 20 minutes every day. One of them said he only interacted with lizards which found their way into his cell. He recalled how he bonded and shared his food with them.
The convicted persons are placed in isolation once the court issues the execution warrant. All objects that can be used to inflict self-harm (cords, belts) are removed from the cell. Prisoners who are to be executed at the same time are not allowed to communicate. They do have the right to meet with a mental health professional and can request that a chaplain be present and pray for them before the execution.

The policies around maintaining family ties differ from one prison to another. The mulaqat refers to the system of organising visits. Most facilities apply a common mulaqat regime to all their prisoners; they are entitled to two visits a month following administrative approval. The prisoners are conveyed to the visiting area in a group. Guards are present the whole time and visits last for 20 to 30 minutes. The prisoners and their families are lined up on either side of a grill. The families are not separated from one another. As a result, each family attempts to speak the loudest in order to be heard. Project 39A reported that the families of prisoners sentenced to death occasionally pay bribes to prison officers to prolong their visits, or to remove the grill between them and their relative.

At least four states have reportedly adopted a different mulaqat for prisoners sentenced to death; in these prisons they are allegedly entitled to longer visits than the other prisoners.

The remoteness of prisons and the short visiting hours prevent most families from visiting their loved one sentenced to death regularly due to their meagre financial resources. These problems are exacerbated in Karnataka. This state is larger than 190,000 km2, and all its prisoners sentenced to death are lodged in Hindalga Central Jail. Transferring a prisoner sentenced to death to this facility in the extreme northwest of the state often entails a steep decline in visits. Some families only visit once or twice a year. They bring bread (chapatis) and rice (curd rice), and sleep in shrines (dargah) to cut their travel costs.
Some families reported not visiting their relatives in detention for fear of the repercussions. The father of a prisoner sentenced to death explained that as the victim came from a powerful and influential family, he feared he would be expelled from his village if anyone discovered he was in contact with his son.

The law provides for medical care for prisoners within the facilities and, if necessary, in external hospitals. According to Project 39A, prisoners sentenced to death were denied even the most basic medical care. It reported that fatal illnesses were diagnosed with extreme delays. Many prisoners sentenced to death described discrimination by prison staff: “Nityanand was told by the prison authorities that he will not be treated for his stomach ailments for the sole reason that he was a condemned convict, and therefore, did not deserve medical attention as he was ultimately to be executed.”.

The mental health of prisoners sentenced to death is neglected. Many report receiving medication for their mental conditions without a diagnosis.

• Project 39A, Annual statistics.

• Project 39A, Death penalty India report — Vol I & II, 2016.

• Project 39A Podcast, In Conversation with Justice Kurian Joseph on the Death Penalty - Episode 3, 2019.

• The Cornell Centre on Death Penalty Worldwide, Judged for more than her crime, 2018.

• Scroll.in, 404 prisoners are on death row in India, with Uttar Pradesh leading the list, 2021.

• Scroll.in, India is increasingly handing out death penalty to rapists and most cases are stuck in court, 2020.

• Times of India, What families of death row criminals go through, 2020.

• DT Next, Nirbhaya case: From ‘Isolated cell’ to ‘Gallows’ - Here’s how death convicts will be treated, 2020.

• IndiaSpend, Death Penalty In POCSO Act Imperils Child Victims Of Sexual Offences, 2019.

• The Oxford Human Rights Hub, RightsUp - A Theatre of Death: Challenging the Death Penalty in India (with Anup Surendranath), 2018.

• Centre for Child Rights, POCSO: Why cases of child sexual abuse mostly end in acquittal, 2017.

• BBC, India: why death penalty is not the answer to sexual violence in India, 2017.