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Report No. 262

(ii) Economic and Educational Vulnerability

5.3.11 Shibbanlal Saxena, a member of India's Constituent Assembly, had spent over two years on death row before Independence. In that time, he saw several other prisoners executed, among whom were seven he believed were innocent. During a debate in the Constituent Assembly, Saxena said:

I have seen people who are very poor not being able to appeal [their convictions] as they cannot afford to pay the counsel. [T]he Supreme Court may grant special leave to appeal from any judgement, but it will be open to people who are wealthy, who can move heaven and earth, but the common people who have no money and who are poor will not be able to [appeal in this way].627

627 Constituent Assembly of India, Vol. 8, 3rd June 1949, available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm, visited on 25.08.2015

5.3.12 The implication of Saxena's statement was that it is much harder for an accused with limited economic means to defend himself than it is for richer prisoners to do so. If that is an obvious observation that holds across the board, it is also indicative of the possibility that a capital punishment trial, by its very nature, disadvantages the economically vulnerable, especially in an adversarial system. It is also a reminder of a serious conundrum every death penalty trial is faced with: how do we ensure that the accused has reasonable legal representation throughout the lengthy process? often he is too poor to afford a lawyer.

In such cases, the government is obliged to appoint lawyers for the defence. However, lawyers so appointed are paid absurdly low amounts for their work. Legal aid lawyers are generally paid in the range of Rs. 50.- Rs. 1500 per trial, and Rs. 100.- Rs. 3000 per appeal. Delhi is an exception where legal aid lawyers are paid Rs. 12,000 for a Sessions trial where the death penalty is a possible sentencing option.628 And yet even this number remains significantly lower than the fees a private advocate would generally charge.

628 Data provided to the Commission by Dr. Yug Chaudhry, as obtained from the respective State Legal Services Authorities (on file).

5.3.13 Empirical evidence also suggests that the majority of death row convicts in India are from economically vulnerable sections of society. Data presented by NLU Delhi's Death Penalty Research Project shows that nearly 74% of convicts were economically vulnerable (vulnerability judged in large part by their occupations and landholdings).

In terms of being sole-bread winners, the Clinic could not find information for 25% of the convicts. of the remaining 75% of the convicts, 63% were sole breadwinners,629 which would certainly have an impact on whether their families could afford retaining competent counsel through the legal process. The competence of counsel would also impact the entire trial and appellate process.

629 Data presented by the Death Penalty Research Project at the National Consultation organized by the Law Commission on July 11, 2015.

5.3.14 The issue of ineffective legal aid, especially in death penalty cases has been debated across the world. It has been argued that "whether one ends up in death row is usually determined not by the heinousness of the crime but by the quality of trial counsel."630 Ineffective assistance of counsel has a higher tendency to lead to wrongful convictions.631

Take for example, the case of Mohd. Hussain @ Julfikar Ali v. State, 2012 (8) Scale 308 where the accused was convicted and sentenced to death by the trial court and high court for a blast that killed 4 persons. The Supreme Court remanded the matter back for a fresh trial, noting that the accused had been denied fair trial because of the denial of effective legal representation. At this fresh trial Mohd. Hussain was found innocent of all charges and was acquitted. He was in prison for 15, out of which he was on death row for 7 years and 2 months.

630 Kenneth Williams, Most Deserving of Death? An Analysis of the Supreme Court's Death Penalty Jurisprudence 17 (2012).

631 Kenneth Williams, Most Deserving of Death? An Analysis of the Supreme Court's Death Penalty Jurisprudence 18 (2012).

5.3.15 Interestingly, in the recent case of Surendra Koli v. State of UP, Review Petition (Crl.) No. 395 of 2014 dated October 28, 2014 where the convicted person filed a review petition against his conviction and sentence by the Supreme Court on the ground that he had lacked effective legal representation before the trial court, the Supreme Court rejected the petitioner's contention because "at this belated stage of review in the present proceedings, this argument would not come to the respite of the petitioner," but observed that "the learned District Judges while assigning the defence counsel, especially in cases where legal aid is sought for by the accused person, must preferably entrust the matter to a counsel who has an expertise in conducting the Sessions Trial.

Such assignment of cases would not only better preserve the right to legal representation of the accused persons but also serve in the ends of ensuring efficient trial proceedings." Surendra Koli v. State of UP, Review Petition (Crl.) No. 395 of 2014 dated October 28, 2014

5.3.16 The empirical data on error further substantiates the discriminatory impact that poverty, and consequently, possible ineffective assistance of counsel has on people charged for a capital offence. The Supreme Court in Bariyar, Sangeet, and Khade, acknowledged error in 16 cases, involving death sentences imposed on 20 individuals. Disturbingly, in over half these cases in which the Court later found error, the accused were represented by amicus curie.

Data from a study titled Hanging in the Balance: Arbitrariness in Death Penalty Adjudication in India (1950-2013) shows that out of the 281 persons who were awarded the death sentence by at least one level of court between 2000 and 2013, and whose cases went up through all the tiers of the judicial system, 128 persons were given the death sentence only by the Trial Court.635 Both the High Court and the Supreme Court either commuted the sentence or acquitted the person in these cases. 7.03% of such accused were represented by Amicus Curie.

In the same time period, 79 persons were given the death sentence by both the Trial Court and the High Court but were either acquitted or had their sentences commuted by the Supreme Court. The Amicus Curie representation of this group was 22.8%. And finally, of the 69 persons who were given the death sentence by the Supreme Court itself, 36.2% has amicus representation.636

635 Aparna Chandra, Mrinal Satish, Vrinda Bhandari and Radhika Chitkara, Hanging in the Balance: Arbitrariness in Death Penalty Adjudication in India (1950-2013) [forthcoming 2015] (on file).

636 Aparna Chandra, Mrinal Satish, Vrinda Bhandari and Radhika Chitkara, Hanging in the Balance: Arbitrariness in Death Penalty Adjudication in India (1950-2013) [forthcoming 2015] (on file).

5.3.17 The over-representation of amicus curie in cases relating to error and to the imposition of the death penalty is a cause for caution, not least because it may signal the impact of structural and systemic biases on the imposition of the death penalty. Merely because a person is represented by amicus before the Supreme Court of course does not imply that the person did not get good legal representation before the Supreme Court.

However, the fact that an accused is represented by amicus does indicate the person's economic circumstances. The ability to hire quality legal representation before trial courts, and to ensure that a robust record is created at the trial court level, is likely to be compromised in such instances. The impact of the lack of access to quality legal representation, particularly at the trial stage is also likely to be compounded by the existence of inconsistencies in the death penalty jurisprudence, which result in ill-trained lawyers having to argue before inadequately guided judges on an incoherent area of law.

5.3.18 This may be partially responsible for the higher presence of amicus representation in cases in which the death penalty is upheld by the Supreme Court. Be that as it may, this data indicates that of the persons who are given the death sentence at the trial court level, those who cannot afford to hire their own legal representation are more likely to have their death sentences confirmed by the high court, and/or the Supreme Court.

This was in fact acknowledged by the Supreme Court in Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641 where the Court observed that the inherent imperfections of the criminal justice system lead to "swinging fortunes of the accused on the issue of determination of guilt and sentence." Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para 169. It noted that "leading commentators on the death penalty hold the view that it invariably the marginalized and destitute who suffer the extreme penalty." Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para 169

5.3.19 Echoing a similar sentiment, though in the context of the US, public interest lawyer Bryan Stevenson, Executive Director of Equal Justice Initiative,640 once said "the reality is that capital punishment in America is a lottery. It is a punishment that is shaped by the constraints of poverty, race, geography and local politics."641

640 Equal Justice Initiative, available at www.eji.org.

641 Hugo Adam Bedau And Paul G. Cassell, Debating The Death Penalty : Should America Have Capital Punishment?, 78 (2004).

5.3.20 Similarly, in his dissenting judgement in the Bachan Singh case, Justice P.N. Bhagwati wrote:

[The] death sentence has a certain class complexion or class bias [because] it is largely the poor and the downtrodden who are the victims of this extreme penalty. We would hardly find a rich or affluent person going to the gallows. Capital punishment, as pointed out by [San Quentin State Prison] Warden [Clinton Truman] Duffy, is a "privilege of the poor. Bachan Singh v. State of Punjab, (1982) 3 SCC 24, at para 81

5.3.21 He then summed up his argument with the following and forthright denunciation of the penalty:

There can be no doubt that death penalty in its actual operation is discriminatory, for it strikes mostly against the poor and deprived sections of the community, and the rich and the affluent usually escape from its clutches. This circumstance also adds to the arbitrary and capricious nature of the death penalty and renders it unconstitutional as being violative of Articles 14 and 21. Bachan Singh v. State of Punjab, (1982) 3 SCC 24, at para 81

5.3.22 This pronouncement of unconstitutionality found favour with South African Constitutional Court in 1995, when all eleven judges on the Bench agreed that race and poverty were factors in the outcomes of death penalty cases, as was "the personality and particular attitude to capital punishment of the trial judge." State v. Makwanyane and Another, Constitutional Court of South Africa, CCT/3/94, June 6 1995, at para 48. On these and other grounds, they pronounced that capital punishment violated the Interim Constitution of South Africa. It has since been abolished in South Africa. State v. Makwanyane and Another, Constitutional Court of South Africa, CCT/3/94, June 6 1995.

5.3.23 These concerns regarding the excessive, uncertain, and disparate application of the death penalty are compounded by the fallibility of the system as a whole, especially for an irreversible punishment. This issue is discussed next.



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