Anup Surendranath is the director of Project 39-A, a centre at the National Law University, Delhi. The project’s mandate is to employ empirical research to re-imagine the practices and policies of the criminal-justice system in India. It conducted India’s first ever empirical research on capital punishment and released a report on it in 2016. Since then, every year, it has put out data concerning the death penalty in India. The research considers nearly every death-row convict in India, across parameters such as their economic and social background, the charges under which they were convicted, their experience of the investigation, the number of sentences that were upheld or commuted in higher courts, and the state-wise prevalence of death sentencing, among others. Each year, the centre’s research has found that the convicts who are sentenced to death and who remain on death row are predominantly from poor and lower-caste communities, with little access to proper legal aid.
In mid December, Surabhi Kanga, the web editor at The Caravan, met Surendranath. The conversation is a part of The Caravan’s short series on the death penalty, “Killing in the Name of.” On 1 December 2019, the Delhi government recommended to the lieutenant governor that the mercy petitions filed by the accused in the Delhi gang-rape case of 2012 be rejected. Barely a week later, the Telangana police killed four men in an alleged encounter—the men had been arrested for the rape and murder of a veterinarian. Surendranath discussed these developments, as well as findings and insights from his years-long research into the death penalty in India.
The 2012 Delhi gang-rape case has progressed quickly since the conversation took place—in the past month, a Delhi court issued a death warrant for the convicts in the case; the president Ram Nath Kovind rejected the mercy petition of two of the convicts, who then challenged it in the Supreme Court, which dismissed both the pleas. Four of the six convicts—one died in prison, while another, a juvenile, served three years—are due to be hanged on 1 February 2020. This will be the second case of execution for sexual violence and murder in India—the first such death sentence was carried out in 2004, when a security guard named Dhananjoy Chatterjee was executed for the rape and murder of a 14-year-old.
Surabhi Kanga: Project 39-A’s first death-penalty report included state-wise data on capital punishment. What patterns did you discern across states?
Anup Surendranath: The data that we published in May 2016 was of a certain time, and things obviously change, as we are seeing. One of the main surprises in state-wise data was the lack of the use of the death penalty in India’s conflict zones. Be it Jammu and Kashmir or central India or the northeast, there is very little use of the death penalty. The death penalty has a certain laborious nature to it that the state has no real use for—it is more interested in other kinds of violence and killings in those regions. Most interestingly, the popularity of the death penalty is driven, in this decade at least, by concerns of terrorism and sexual violence. And as with all countries that have the death penalty, the burden of the death penalty falls on the poorest and most marginalised sections of our society.
The incidents in Kathua in 2018 and of course the Delhi gang-rape from December 2012 have fuelled the public perception that harsher punishment is somehow an appropriate response to sexual violence. [In June 2019, six men were convicted for the abduction, confinement, rape and murder of an eight-year-old girl in 2018, in the Kathua district of Jammu and Kashmir.] Despite opposition from the women’s rights movement and child-rights groups, there has been legislative expansion of the death penalty through amendments to the Indian Penal Code—in 2013 and 2018—and the POCSO Act [The Protection of Children from Sexual Offences Act, 2012], in 2019. In Madhya Pradesh, in 2018, amendments were brought in to provide for death penalty for the rape of girls below 12 years. Then subsequently, in early 2019, when the POCSO was amended to bring in death penalty for child rape, you see Madhya Pradesh taking the lead in the number of death sentences.
You can map that on to a very significant political push given by [the state’s former chief minister] Shivraj Singh Chouhan’s keenness on the death penalty. Madhya Pradesh also has a problematic constitutional practice where prosecutors are being incentivised to get the death penalty— a prosecutor that gets a death sentence in a sexual-violence case gets more points, and there are rewards for being the best prosecutor. Prosecutors are supposed to be independent, to apply their mind as to which cases should be prosecuted and what punishment to ask for. Once you start influencing that, you start chipping away at the independence of the prosecution, it takes away a very vital protection right. You are pushing them towards asking them for the death penalty and rewarding them.
SK: What do you mean by “political push?” Did the Bharatiya Janata Party in Madhya Pradesh favour the use of the death penalty?
AS: I don’t think it is just the BJP that has an un-nuanced position on the death penalty for sexual violence and that is evident from the support for the legislative expansion of the death penalty across the political spectrum. Shivraj Singh Chouhan did significantly back the death penalty for child rape, but so did [the Andhra Pradesh chief minister] Jagan Reddy by pushing through some very regressive amendments to the IPC in the aftermath of the incident in Hyderabad. And of course, we all know what [the Rajya Sabha MP] Jaya Bacchan said as well. There just isn’t that political imagination or courage to face the facts on the ground: that sexual violence is not a punishment problem.
All political parties are complicit in developing this terrible, counter-productive narrative, and feeding this public frenzy that sexual violence is best handled by punishing people more harshly. It is easy to villainise four people or a hundred rapists, rather than ask the broader, tougher question of what in our society produces sexual violence. I don’t blame the general public for the kind of views that they have, that’s in the nature of public opinion. But when you have politicians riding on that and not providing any kind of thought or moral leadership to make people realise the harsh truth of gender politics and sexual violence in our society—is it that they don’t know all of this? I don’t know. Is it that this is convenient for them? Looks like it.
The best-case scenario is that there is a level of desperation among them in seeing this violence and wanting to respond to it. But I don’t think they have the liberty to resort to that desperation. Unfortunately, they have signed up for a very difficult job: to address difficult social situations, and in addressing difficult social problems you cannot seek to manipulate social desperation. That is for the public to feel; it is not for the politician to manipulate or make political capital out of or abdicate political responsibility.
SK: If the political class’s “desperation” is the best-case scenario, what is the worst-case scenario?
AS: I think they know that, over many decades, the political class as a whole has just not done enough to address sexual violence. They don’t want to be held responsible for that. That’s a conversation they want to avoid. From the hawaldar to the Supreme Court of India, what has the Indian state done for gender justice and against sexual violence in this country? The Indian state is happy to limit the conversation to saying, “Here are a bunch of people whose sexual urges are out of control, who are evil.”
SK: You spoke to hundreds of people who were on death row for sexual violence and murder. Has this narrative of villainy borne out in your field work?
AS: The narrative of villainy, as you call it, doesn’t work because that discounts how violence is produced in society. It is not that there is some evil DNA in people and therefore it is that individual’s problem. Sexual violence is a product of many complex factors in our society, right from our homes to our friends, our relatives and our partners to workplaces, our media, our news, our politicians, and our entertainment. When we are villainising one person, we are seeking to exonerate ourselves. We say, “We are not like that.” But we are exactly like that. We participate in, contribute to, and routinely condone the spectrum of sexual violence.
SK: Can you share some examples of this complexity that you have seen on the ground during your research? Are there any particular cases that come to mind?
AS: This case came to us once: the trial court had confirmed the death sentence, the high court had confirmed it and the Supreme Court had also confirmed death once. It came to us when the case had to be done in review [when the convict files a review petition against a death sentence in the Supreme Court], which we lost. This man had taken away a two-year-old and attempted to rape her. He wasn’t able to rape her. The girl started crying; he just wanted to shut her up, so he took a boulder and smashed it on her head. In this construction of villainy, it doesn’t get worse.
After we lost the review, when we had to file the mercy petition, we met the man and his family. Over nearly fifty or sixty hours of interviewing, emerged a history of brutal violence in his own life, of serious mental-health concerns. Right from childhood, in an attempt to cure his mental-health problems, he was sent to a lot of ashrams where there were very strong suggestions of sexual abuse, and also of physical abuse by his father. As is often the attempted solution for all mental-health concerns in our society, [his family] tried to get him married. Then, there was physical abuse by his father even after his marriage, in front of his wife.
I’m not presenting this to justify what he did. That is not the point. But if we are representing fifty people who have raped and murdered adults or children, each of them has a story. It explains—not justifies, but explains—who these people are. It might be comforting for you to define them based on just that one moment, that one act—that this person is all about attempting to rape a two-year-old and killing her and smashing a boulder on her face. But people are not just that. What led that person to do that action is a complex, personal, emotional and psychological history. I’m not saying everybody who has raped and murdered a minor has a history of sexual or physical abuse. Each person has their own particular narrative that leads them to that. It’s about whether we want to understand that or not.
SK: Is there space in our legal and judicial process for this background to be presented?
AS: Actually, our law is great on this. It says that life imprisonment is a default punishment and if you want to give death, you have to give special reasons. That’s great positioning. The courts said, in 1980, in the Bachan Singh case, [referring to Bachan Singh vs State of Punjab, where the Supreme Court examined the constitutionality of the death penalty] that when judges make this choice [of whether to sentence someone to death], they have to look at both aggravating factors and mitigating factors. It says the justice must be individualised. That’s such a wonderful, progressive position to take—if you are punishing me, you must individualise justice to who I am.
This is where I’d like to map on my findings of the death-penalty report. Most death-row convicts are people who are incredibly poor, who don’t have decent lawyers at any point in the system. Even if they have someone, they are paying such a pittance that the lawyer is not interested in constructing this complex personal history of them. Lawyers are trained as professionals to talk to you only about things they imagine as mattering in the case. So, you have a legal system that is not capable of meeting the requirements of a very progressive law.
The story we built of the person who attempted to rape and murder a two-year-old is based on forty to sixty hours of interviewing. We made multiple trips from here to Nagpur and in different parts of Maharashtra to meet the convict and his family—it takes a certain level of skill and expertise. It certainly costs money. In a completely broken legal-aid system, this is not going to come through. And therefore, the only thing the judges have before them is this villain. All that they know about this person is this heinous, brutal crime they committed, because that is the prosecution’s case. Today, if you ask people, of the four remaining convicts in the Delhi gang-rape case, how much do you know about them, who they really are, what were their lives like? Despite the opportunity, why was this not presented in court sufficiently?
One of the requirements that the law says you should consider is the capability of being reformed. How have the courts looked at it? It’s this mind-boggling, circular argument—the law says that for people who have done these heinous things, you have to determine if this person is capable of being reformed. The court’s answer is, “If this person has done this, how is he capable of being reformed?” The capacity of being reformed is meant to be a forward-looking consideration. If you have come to the Supreme Court seven years after the offense, shouldn’t it be relevant what you have done in prison, to show that you are capable of being reformed?
But the court is not interested in eliciting this information. Despite knowing that most people being sentenced to death belong to a certain economic profile, that the legal-aid system is broken, that the investigation mechanism is a violent, corrupt, brutal system; I still don’t see the proactiveness in judges to elicit this information.
If you want to extinguish a life, isn’t it relevant who this person was? I’m not saying that what this person did is somehow irrelevant. But if we are so interested in taking someone’s life, we have to be quite sure that there is nothing redeeming about them. You might say, “Oh how is this practical, will anyone ever get sentenced to death then?” If you don’t find anyone who is not capable of reform, then so be it. If the state is so interested in taking a life, it must bear this higher burden. The idea is to make it as difficult as possible for the state to take life. The older judgements of the Supreme Court are very clear on that.
SK: What kinds of arguments do prosecutors use when arguing for the death penalty in cases of sexual-violence?
AS: A big favourite is that society’s confidence in the law will be shattered. Judges also adopt this argument, that collective conscience has been shocked or public confidence in law will be shattered. Whose public? Which public? Public in Mysore district? Public in southern Karnataka? People in Karnataka? People in south India? People in India? How is this public coming to this determination?
This has always been an issue in death-penalty cases. References to “collective conscience” or a “public outcry” are the ways in which even the Supreme Court brings in public opinion. But the court has to decide cases on legal considerations, not by a popularity contest, or by “society’s cry for justice”—another favourite phrase. When five judges decided the constitutionality of the death penalty in Bachan Singh—with one of them dissenting—they made it very clear that public opinion is irrelevant. The majority judgment captured this point so well—“Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion.”
I urge you to imagine if this country had the death penalty for corruption. The kind of details and jurisprudence we would have developed would have been amazing. All these prosecutions would suddenly see the greatest lawyers the country has to offer; judges would suddenly find value in these due-process arguments. If you had a senior bureaucrat being sentenced to death, suddenly you’d have these lawyers waiting to present, as the law requires, mitigating factors. But that’s the reality of this—it’s the poor, it’s the damned and nobody cares about it.
SK: As you said, most death-row convicts belong to a certain economic profile. Does your research include a caste census of death-penalty convicts?
AS: As you go up to the pyramid, from trial court to high court to Supreme Court to mercy petition, and those whose mercy petition has been rejected, the caste composition starts intensifying. You have more Dalits remaining on death row. Different states have different stories, but Dalit death-row convicts exist in higher proportion than their population ratios. As you go up the system, if out of every 100 people who get the death penalty, only five remain, the people remaining are mostly Dalits.
SK: What do you think is the state’s responsibility towards the “poor and the damned”? What should its role be?
AS: This narrative that we will protect victims better if we take away the rights of the accused is a false dichotomy. For me, victim rights and the rights of the accused are on the same spectrum. The Indian state fails both, equally. It is very difficult for a woman, as a survivor of sexual violence, to file a first information report or get a fair investigation in this country. We are also a criminal-justice system where there is rampant torture of the accused, where there is corruption. Both of those are systemic realities; both of those are the state’s failures. A crime happens when state and society have failed both, the perpetrator and the victim.
Sure, crime is partly an individual failure. But there are also undeniable elements of social failure in crimes. We routinely communicate our acceptance of certain extremely problematic practices and beliefs: how do you treat women, how do you look at questions of gender? There is a certain social conditioning that happens in our families, our schools and in our workplaces. Social conditioning will affect one person in a different way than it might affect another person. When we say we should look at a person’s background, very often, we are asked, “Are you saying that all poor people commit crime?” I’m saying we all have vulnerabilities in our lives—social, economic, psychological and emotional factors. These factors interact with our personal and psychological make-up, our emotional and psychological well-being, for us to decide what is okay to do and what is not.
What are the systems that the state has built to address the vulnerability of say, mental health? There is hardly any infrastructure the state provides for people to effectively meet their mental-health requirements. When the state doesn’t provide for such vulnerabilities, it forms a toxic mix, with a certain social perception of the issue and social taboos, which produces this extreme vulnerability. There’s also a much broader narrative of what poverty and unemployment do.
We must avoid making sexual violence [out to be] a problem that occurs in a certain class. I think there’s much more of a taboo and silence around sexual violence within what you might call the upper classes. The reality of offences involving sexual violence is that a vast proportion of such crimes are committed by people known to the survivors, not strangers.
SK: The latest data released by the National Crime Records Bureau showed that the accused were known to the victim in 93.1 percent of the rapes reported in 2017.
AS: Absolutely. This imagination that the rapists in India are from a certain class or section from society, that they are these demons waiting to attack us—it’s just not true. It’s morally comforting for you to think that this doesn’t happen in our houses, in our offices or where we go, but it does. We just don’t want to talk about it. Even in sexual violence, there is this distinct othering that happens. You construct the rapist and the survivor in a certain way. In this kind of discourse there is very little space to imagine sexual violence in the broader contexts of caste, religion, sexuality, class and state impunity.
SK: How has the state fared on providing education on gender and sexual violence?
AS: Do we talk or educate our children or our students in university enough about issues of sexual violence? We are talking about governments who repeatedly didn’t want to have sex education in schools. All these are tough, long-term, high-investment ideas—both in terms of intellect and resources. Nobody wants to do all of that. We just want quick solutions. Who is going to educate our people? What is the plan we have towards ensuring that sexual violence will not occur in this country? There is no plan. I think the state wants us to believe that the best plan is to have harsher and harsher punishments.
SK: You have said that this retributive approach does not work. What sort of justice should the victims receive?
AS: When people read about a child who has been brutally sexually abused, there is somehow this assumption that justice means putting the perpetrator in jail. From society’s perspective, that might be the case. But from a victim’s perspective, I think the narrative is a lot more complicated. Child sexual-abuse cases are the perfect example. Most children who suffer sexual violence are suffering it at the hands of known people—their relatives, their friends, their neighbours. I was exposed to some excellent research done by organisations like the HAQ: Centre for Child Rights [a research and advocacy group] and the Centre for Child and the Law [a research centre of the National Law School of India University, Bangalore] when the death penalty was being introduced for child rape. If a mother is looking after a child who is being routinely abused by the father, what justice means for them is so complex. The mother often feels that all she wants is the child and her to be taken away from the physical proximity to the abuser, to a space where they are safe and can survive. In the current system, we are asking them to choose either punishment or a threat to their existence.
The state seems to say it has schemes to help at-risk children, but research shows none of it works. The state has not even been capable of building child-friendly courts. It’s not just about building a court and having a play area. Are there sufficient judges who are trained in dealing with children? Are there prosecutors who are specially trained to prosecute child-rape cases, and social workers to help a child through the process?
SK: Another aspect your report highlighted was the arbitrary nature of death sentencing. The 2016 report noted that between 2000 and 2015, only 4.9 percent of the death sentences by trial courts were confirmed by the Supreme Court. How do the trial courts approach the death penalty?
AS: It is a very local operation. They say, “We will give you death, you may not deserve it, but you go get the remedy in the appellate courts.” Trial-court judges don’t want to be seen as soft on crime. That’s why you see such an exaggerated use of the death penalty.
Sometimes it is asked, “Isn’t it good that only 5 percent are getting confirmed?” Not in our system. You should be more worried that you have given death sentences unnecessarily in 95 percent of the cases, that you have made people sit on death row for that long [referring to the period of imprisonment before the sentences are confirmed or commuted].
SK: Your research also revealed that the people being sentenced are often unaware of the judicial proceedings in their cases.
AS: During the interviews conducted for research, very often, people had very different ideas of what was happening, how far they had to go, and how many options they had. Very often, people lived in the fear that if the government wanted, they could be executed the next day. That is, for me, the suffering of the death penalty—not that moment when your neck breaks or you choke to death by hanging. Some people on the other side say this is nothing compared to the suffering inflicted on the victim—you can get into this nasty comparison and be none the wiser for it. These people don’t know if they will be executed in six days, twenty days, a month, six months. I’ve spoken to enough number of prisoners to know that that kind of fear is paralysing. That is the real suffering of the death penalty, which is inflicted on a daily basis.
SK: Is that the state’s intention?
AS: I would say the state and society are indifferent to that suffering. With the Delhi gang-rape [convicts], even if we didn’t want to hold a mirror to ourselves, it would have been so much better to accept that we are doing this for revenge, and drop any pretence that this will somehow stop rapes in India. It boils down to our feeling of revenge in such cases. Take ten of your family members, for instance, and ask them: “Do you think the four convicts in the Delhi gang-rape case should be executed?” I am sure ninety percent of them would say yes. Take another ten members and ask another question: “Rank the following measures in terms of their potential to address sexual violence”—say, better sex education, better public-safety measures, effective police reform, better prosecution, more scientific investigation, and the death penalty. I assure you that the death penalty will rank very low when you put the question like that.
SK: Every case of rape does not result in the accused getting the death penalty. Why has the Delhi gang-rape case of 2012 become so prominent in this regard?AS: As somebody who has watched the death penalty for a few years now, I think it was a foregone conclusion in the first few weeks of protests, in December 2012, that these people would get executed. I don’t think anybody had a doubt.
There is a certain political mileage that is derived from it. There is a certain social movement, an outrage, an outburst. It became a symbol of the ineffectiveness of society to deal with sexual violence. Unfortunately, the lottery fell against them—these six came to represent the mess that we are in. In villainising them, we have sought to assuage our own social consciousness by saying, “Well, sexual violence is not true of our society, only true of these four. Let’s get rid of them,” forgetting that we produce sexual violence and those who commit such crimes on a routine basis.
SK: Can you explain the importance of a mercy petition in the death-penalty process? How is it envisioned in the law?
AS: The Constitution acknowledges granting mercy [as a power of] both the governor and the president. The court has repeatedly said that this not a benevolent act like [that of a] monarch, it has a certain constitutional basis, and a constitutional way of exercising that power. You cannot do it arbitrarily; you have to take into account relevant material. In that context, President Kovind’s statement—that people who are given death for inflicting sexual violence against children should not be given the option to file a mercy—is outrightly unconstitutional. For the bearer of the highest constitutional office to say that, to reveal his mind and show his prejudice, is shocking. If a mercy petition comes before him of a person who has been convicted and sentenced to death for child rape and murder, because the president has already stated his view, what is left of the constitutional provision for that prisoner? I would think it raises a very significant constitutional question the next time President Kovind rejects the mercy petition of somebody who has been sentenced to death for child rape and murder, that he [should] not have decided that mercy petition once he expressed this view.
SK: The popular perception of the mercy petition, however, is that it is an act of benevolence. How is the constitutional process different from this idea? What does it involve?
AS: There are certain kinds of material that have to be placed before the president. The jail conduct, health conduct, the judgments, the kind of applications that may have been filed, the materials that the prisoner himself or herself submitted to the prison—all of this is material that a president has to consider. The president or the governor may have to take the opinion of the state government; the state government in turn might have to take the opinion of the prison. The mercy petition that the convict files might raise some concerns with the legal proceedings, which the president might have to consider. The president can take a view that it does not matter, but that’s not the point. The point is, did they consider it? Were these materials even placed before them? If there was a mental-health concern, was that material even sent to the president? Did the state place that material before the president? A challenge to the mercy petition is not that they should have reached a certain conclusion once they saw it, but whether they considered it. That is why it’s not a personal act; there are constitutional requirements for how this constitutional authority must exercise this discretion given to them.
The manner in which the Supreme Court has dealt with the challenge to the president’s rejection of Mukesh Kumar’s [one of convicted men in the 2012 Delhi gang-rape case] mercy petition is shocking to say the least. The reasoning of the court, in light of some extremely serious concerns raised in that proceeding, is extremely weak and is not befitting of a constitutional court.
SK: In the recent past, many questions have been raised about the credibility of the Supreme Court, too. How do you view this?
AS: In the last twelve to fourteen months, the Supreme Court has decided a fair number of cases on the death penalty. Under [the former chief justice of India] Ranjan Gogoi, benches were created where the priority was to clear death sentence cases and quite a few were decided. A large proportion of the death sentences were commuted, only two or three were confirmed. It’s a very interesting time, where the Supreme Court’s own confidence in the death penalty seems to be diminishing, but you have a legislative rampage to expand the death penalty. Trial courts are giving more death sentences than before—last year [2018] saw the highest number of deaths sentences being given by trial courts in the last twenty years, and yet the Supreme Court seems sceptical of the manner in which death sentences are being given. I don’t know how this current set of events around Hyderabad and Unnao and the Delhi gang-rape case will affect that. The Delhi gang-rape case is going to be an interesting test for the Supreme Court, of what actions it takes when all the remaining options come before it, and how strictly it will guard due process [for the convicts].
SK: What do you think of the public discourse surrounding the Hyderabad case? The incident surfaced in early December, and was soon connected and compared to the 2012 Delhi gang-rape case.
AS: It certainly fast tracked the executions in the Delhi gang-rape case. More broadly, for the death penalty, we are now debating whether encounters are a good thing or not—death penalty is now like a five-star luxury. We are debating whether “arrest and kill” is an option. In that context, the trial court, the high court, the Supreme Court, mercy, a challenge to the rejection of mercy, all seem luxurious in terms of the rule of law—that’s the effect of this. That’s exactly how you move conversations to the right: you keep pushing it so that you can’t even have a conversation on the death penalty. Should the Delhi gang-rape convicts be executed? The answer seems so obvious from a public-opinion perspective, given the terms of the public conversation after the Hyderabad encounter killings. For a public to imagine a “no” would be shocking.
SK: Who is the beneficiary in this entire process? A woman was raped, and now four people will be hanged.
AS: Neither are the victims any better off, neither are women safer, neither are we doing anything with the rapists who are in jail—not everybody who committed a rape is on death row, so some of them will come out some day, but we are not doing anything meaningful with them. The people who are supposed to be doing something about this are not doing anything about this, and this entire process has served them very well—to take away attention from them and distract us. It is an easy way to cover up political failure. There is no real benefit of this entire process.
Asha Devi and Badrinath Singh [the parents of the victim in the 2012 Delhi gang-rape case] have fought a tireless battle to get justice for their daughter’s violent death. None of us can really imagine their suffering and grief and neither can we really understand what these executions might mean for them. And I don’t think we, as a society, should pretend that we are doing this for them. That would just be hypocritical because we do not have the courage as a society to acknowledge the role we have played in causing that suffering.
SK: Does anyone benefit from this economically?
AS: Execution is great business for the news channels—how is this rope made, how is the arrangement [for the execution], where hangman is going to come, what did [the convicts] do in the last minute. That grotesque voyeurism of death is great business, everybody loves that.
This interview has been edited and condensed. The conversation is part of The Caravan’s series on the death penalty, “Killing in the Name of.”