On a rainy morning in July 2017, Anand* sat across a table from a young woman in the prayer room of Bherugarh Central Jail in Ujjain, Madhya Pradesh. Of average height and build, the 28-year-old, from a scheduled caste family of landless labourers, shivered intermittently. He had been in prison for 18 months now, 13 of them on death row, 12 days in solitary confinement. He had not yet seen his son; he couldn’t even remember his name. When he started to talk about his family, he began to cry. Then his interviewer asked him about life on death row, and he looked up at her and said in Hindi:
“It is better to die than live as a death row prisoner. The punishment is not only given to the person but also to the family…And even if the person goes home after being acquitted, their life would already have been spoilt by then. Then the person would resort to more crime.”
Months later, he was acquitted of the murder he had been charged with, now preparing to negotiate a return to the living – or at least to the ‘spoilt’ life that he had once almost feared.
For years, the conversation around the death penalty in India has rested on legal and procedural discussions–what crimes should get it, how long is too long, and how many avenues of appeal should there be? We know very little, meanwhile, about life on death row. Who are the men and women modern India has condemned to death, what were their lives like, and what are their days and nights like? There are reasons this matters – from a legal reform perspective and a moral – or simply a human – perspective.
From 2016 to 2018, Project 39A at the National Law University Delhi set out to interview people on death row in India and their families. Along with students, teams of lawyers and psychologists, like the young women who Anand opened up to, obtained permissions and then fanned out across the country to interview 88 death row prisoners and 110 families of death row prisoners on the record. Led by Project39A’s Director of Mental Health & Criminal Justice and Death Penalty Mitigation, Maitreyi Misra, and with the guidance of senior psychiatrists and psychologists at NIMHANS, the interviewers also administered psychometric tools and clinical interviews to estimate the extent of intellectual disability and mental health concerns among death row prisoners.
Taken together, these investigations, for the first time, shed light on four important findings on India’s death row prisoners:
(a) the near-ubiquity of deprivation and abuse, as well as other disturbing life experiences in their backgrounds (Parts 3 and 4 of this article)
(b) widespread intellectual disability among prisoners sentenced to death, much of it unaddressed through their encounters with the legal system (Part 5)
(c) the astonishingly high rates of psychiatric illnesses among death row prisoners and the high rates of suicidal ideation (Part 6) and
(d) the psychological consequences of being sentenced to death and on death row (Part 7).
This is not an attempt to litigate the legality or morality of the death penalty. It is, however, an attempt to open a window into the lives of India’s death row prisoners; their past, present, and negotiations with the future. Much of this back story, including potentially important information on intellectual disability, never made it to the judicial process – it was never made known to judges, and those on trial were rarely asked about their lives.
“Our death penalty sentencing practices need to be overhauled given that in contrast to the wealth of data that we could get, information on people being sentenced to death is barely brought to the court’s attention,” Misra told me; in essence, India’s current legal calculus of who is “deathworthy” is flawed.
Once incarcerated, their state of mind became of virtually no interest, despite signs of a mental health crisis–including attempted suicide—that call into question whether the state can be said to be upholding the right to life and dignity of those on death row. Anand’s agony implicates not one person but the state itself.
The Project
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The Project 39A team interviewed prisoners sentenced to death in five states–Chhattisgarh, Delhi, Madhya Pradesh, Karnataka and Kerala–between 21 December 2016 and 13 February 2018. The 88 death row prisoners the team got access to were largely representative of India’s death row prison population in terms of demographic characteristics.
Fifty-one of the 88 were under the age of 30 at the time of the incident, and 31 were under the age of 25. Two prisoners claimed to be below 18 years at the time of the incident, which, if true, would mean that they would have been ineligible for the death penalty in the first place. The median age of death row prisoners at the time of the incident was 28 years. Three were women.
Nearly six out of 10, like Anand, belonged to the scheduled castes, scheduled tribes or Other Backward Classes. One in three belonged to religious minorities. Nearly one in five had never been to school.
A majority had to assume an adult's role and duties during adolescence and entered the unorganised work sector as teenagers. Thirty of the 88 prisoners interviewed had worked in the unorganised sector as manual labourers (agricultural and non-agricultural). Six did farming on either their own or leased lands (marginal and small cultivators).
Thirty-three interviewed were on death row for murder, 26 for sexual offences, and five for terror offences.
Of the 88 prisoners interviewed, 46 had been sentenced to death by the trial court, with their confirmation proceedings pending before the High Court. While the High Court had confirmed the death sentences of 33 prisoners, there were nine prisoners whose sentences had been confirmed by the Supreme Court. Seven prisoners had their mercy petitions rejected by the President after the Supreme Court confirmed their death sentence. Anand was one of 19 among the group acquitted following the interview. Another 33 have since had their death sentences commuted. One was since executed.
Some interviewed had spent over 20 years in prison and up to 15 years on death row.
Who Are These People?
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Those were the numbers. But who are these people, and what were their lives like?
There are at least two reasons why the back stories of the lives of those on death row before they were incarcerated matter. For one, they provide insight into a little-known population group. And then, from a legal perspective, adverse life experiences are meant to be factored into judgements and sentences as mitigating factors.
Ramanand (50) spent his entire childhood in extreme poverty in a village in Kerala. His parents separated before he was born, and his grandparents brought the child up. His grandmother physically abused the child; “People say that when food is served by mother it tastes [better]. I have no such experience,” he told an interviewer. He had enjoyed his early days in school—nearly four decades later, he could still fondly remember his favourite teachers’ names— but from the age of around ten, he had to start working in a paddy field. Daily wages couldn’t even cover the cost of each day’s food, and the rice was often infested with worms. He couldn’t afford to dress well for school, and as he grew older, he became aware of the harsher punishments being meted out to him due to his social status. This discrimination affected him emotionally and mentally.
These are not exceptions; this is the norm. Twenty-four of the 88 prisoners had never had a parental figure. Forty-six had been abused as children, 64 were neglected, 46 had to drop out of school early, and 50 had at least one parent using substances. Seventy-nine prisoners were exposed to three or more adverse childhood experiences, including poverty, neglect and social adversity. Fixity-six prisoners had experienced three or more potentially traumatic events, including witnessing a violent death, being in serious accidents, experiencing physical assault, and living through natural disasters. It is a potent mix of negative experiences that, for many, explodes.
Suryakant (24) grew up in an impoverished region in Karnataka and never went to school—he learnt to read and write in jail. When Suryakant was five years old, his parents and two brothers were murdered. The child and his brother were brought up by their paternal uncles and worked as farm labourers.
Suggesting that these experiences could have played a role in their mental, emotional and social development and could have impacted the circumstances they found themselves in. The choices they made are not a leap of faith–a vast body of research says this is almost typical, particularly in the absence of role models, social networks or state support to offset the violence they endured.
Padmanabhan (35) had a troubled childhood and lived in extreme poverty. He had an aggressive father who would beat him for the smallest of reasons. The abuse was not just directed towards him/ It also meant witnessing his father beating his mother without any regard for what he had in his hand, whether it was a scale or an iron rod. “Once my father had beaten my mother, and her hand broke. Because of these experiences, we decided to die. We bought some pills and consumed them,” he said, but the young children and their mother survived the attempt. He goes on to say that he did not have anyone to guide him, and he started smoking and drinking from a relatively young age and associating with people who had a negative influence on him.
Neglect and abuse during childhood, poverty and deprivation can be underlying determinants of violence and mental health issues later in life. Exposure to stress and trauma during childhood can have direct consequences on healthy brain development, resulting in conduct problems as adolescents and aggressive behaviour as adults, poor social attachment and increased emotional reactivity. Linked with adverse childhood experiences are also issues of early onset of substance abuse, lower educational attainment and poor engagement in employment, thus furthering the risk of violence.
These pathways play out with grim predictability; multiple studies have found direct links between adverse childhood experiences and violence later in life, including those resulting in convictions for violent and sexual offending. For instance, research has shown that persons guilty of sexual abuse are likely to have been victims of sexual abuse as children, P39A research shows.
“In the context of punishment, conversations on accountability and responsibility are fixed on the individual. But in those conversations, we forget that the person before us is also a product of a society which failed to respond to their needs when they were children,” Misra told me. “I’m not saying let’s not have accountability,” she clarified, “but I think the data suggests that the question of accountability and responsibility is much more complex (and diffuse) than holding one person so completely responsible as to sentence them to death.”
The prisoners lived difficult lives, with violence, neglect and deprivation, and it is clear that their circumstances were direr than the courts considered.
Life Experiences In The Criminal Justice Process
The mechanism for an accused to communicate his or her life experiences fully is far from properly structured yet in India. Are these boxes to be checked, or is there a way for the judge to know what these circumstances truly meant for the accused—how they affected their ability to grapple with circumstances and seek support?
On paper, it would seem that the modes for these life experiences to make it to death penalty sentencing now exist. The seminal Bachan Singh judgement formalised the structure of the death penalty sentencing framework, for the first time explicitly mentioning the critical role mitigating circumstances play towards determining whether the accused should be sentenced to death, and listing some of these, including age, mental and emotional disturbance at the time of the offence, the probability that the accused would not constitute a continuing threat to society, probability of reformation, and any ‘mental defect’ that the accused may have at the time of the offence. The landmark Manoj & Others judgement spoke the language of reformation rather than retribution as an ideal and laid down practical guidelines to collect data on mitigating circumstances. However, considering these mitigating factors have not been consistent and have lacked a cogent line of reasoning in their acceptance and rejection, leaving much— perhaps too much—in the hands of individual judges, P39A finds.
“The only way to ensure that life histories, information on mental illness or disabilities are presented before courts is when people trained in skills of identification and collection of this nature of information are part of this system. It requires the formal recognition of mental health professionals, social workers etc., as a necessary part of capital defence. The justice system needs a lot more resources (financial and human) to be infused into the system if we want to continue with the death penalty and if we want to go about imposing it fairly,” Misra said“I think the legal implication is that the fair imposition of the death penalty is unsustainable in a resource-starved justice system like ours,” she added.
There is an ‘evil criminal’ construct that underpins most discussions of crime at the moment, Misra said—a fully-formed personification of pure evil, with no background or life story or founding circumstances, a blank canvas on which to paint black-and-white binaries of good and bad. It makes quick solutions and vengeance easier to justify.
A more nuanced portrait is harder to look away from.
“The data is also telling us that it is very possible that there exists no one so fully and individually responsible as to warrant their lives being taken and no one so beyond the dignity of redemption that the majesty of the law has to be lowered to take their life,” she added.
The Unseen Vulnerability Of Intellectual Disabilities
How do we then ‘see’ more fully a person who could be sentenced to death? Judges’ enquiries can unearth some parts of the convict’s life story. However, there are also unseen challenges that must be examined—not least of all because this is a factor meant to be considered as a mitigating factor in sentencing a person to death.
The Project39A team assessed the extent of intellectual disability among death row prisoners. Intellectual disability is defined by the DSM 5 (the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, which is the tool for the diagnosis and classification of mental disorders published by the American Psychiatric Association) as “a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains”. Borderline/low intellectual functioning can mean that, without support, the person can face barriers in reasoning, judgement formation, abstract thinking, and decision-making. Research shows that people with borderline intellectual functioning also have support needs in executive functioning, which includes working memory, planning and problem-solving.
Some factors may impact an individual’s development during the prenatal, perinatal and postnatal periods of their life, thus increasing their risk for intellectual disability, P39A’s research shows. Most death row prisoners belong to backward socio-economic communities and were exposed to multiple adverse experiences during their developmental stage.
Dharmaketu’s (48) parents were farmers and sheep herders. He attended school for only a few days before dropping out as he could not study and concentrate like his classmates. He would often forget instructions. When he was asked to buy something from the market, he would often forget what he was supposed to do and simply wander off, and the child found simple, practical tasks like bathing challenging as well. He also could not make friends and would aggravate those who interacted with him. His behaviour appeared reckless as he could not assess risk in various social situations.
As a young adolescent, Dharmaketu experienced multiple incidents of sexual abuse from those in his neighbourhood and his workplace. In prison, he could not read, write or do simple arithmetic. He experienced frequent memory lapses and sometimes forgot to eat his meals or wandered around because he had forgotten what he was doing.
But beyond what might seem like poor choices or simply bad or criminal behaviour, there could be a cognitive or mental disability at play. Project 39A’s clinical assessment for Dharmaketu indicated that he met the diagnostic criteria for intellectual disability, with moderate deficits in intellectual functioning and varying levels of support needs.
He was not alone. Nine out of 83 prisoners (approximately 11%) were diagnosed with intellectual disabilities. Sixty-three prisoners had low intellectual functioning. Twenty prisoners had borderline deficits in intellectual functioning, 32 prisoners had mild deficits, and 13 had moderate deficits.
Both intellectual disability and low intellectual functioning are vulnerabilities which put individuals without support—as all of the interviewed persons on death row were—at risk of harm in and even from the criminal justice system. Persons with intellectual disabilities are at a heightened risk for confessions, including false confessions, P39A’s research finds. In the courtroom, they face challenging language and themes that may be inaccessible to them. “Prisoners with intellectual disabilities are at serious risk of harm due to their susceptibility to abuse, exploitation, manipulation, misunderstanding of what is expected of them, and inability to benefit from rehabilitative and reformatory activities,” P39A researchers note.
Intellectual disability is particularly important to death penalty sentencing because of potential implications for decision—making pathways and judgment formation when needs are unsupported. The Indian sentencing framework after Bachan Singh v State of Punjab allows the accused to show as a mitigating circumstance “that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct”. Additionally, the UN has repeatedly called for the prohibition on the imposition of and execution of the death penalty on persons with mental and intellectual disabilities.
Yet, not once during their long journeys through the Indian justice system had the prisoners diagnosed with an intellectual disability ever had their disability recognised or their needs supported. Three of the prisoners diagnosed with intellectual disabilities by Project 39A had been sentenced to death by the trial court. The High Court had confirmed the death sentences of another three prisoners. The Supreme Court had confirmed the death sentences of three prisoners, and their mercy petition had already been rejected by the President of India at the interview.
Right from the stage of the investigation to trial and through the appellate process, their intellectual disabilities were never addressed at any level of the judicial process.
Mental Health Of Death Row Prisoners
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Alongside their inquiry into the prevalence of intellectual disability among the death row population, the Project 39A team also attempted to diagnose the extent of mental illness among the prisoners clinically.
Their findings indicate a crisis. Fifty-one out of 82 prisoners, or nearly two in every three, were diagnosed with at least one mental illness. These are rates far, far over those found among the broader Indian population, Pratima Murthy, director and senior professor of psychiatry at NIMHANS, who worked with the Project39A team, said. They indicate a silent unaddressed epidemic of mental illness among India’s death row population, with significant implications for the justice system and the Indian state’s response more broadly.
Among the 88 prisoners interviewed, the main psychiatric illnesses found were Major Depressive Disorder (30 prisoners), Generalised Anxiety Disorder (19 prisoners) and Substance Use Disorder (18 prisoners). Three prisoners reported having psychotic episodes in prison—one of whom had a psychotic episode while in solitary confinement. Thirty-seven prisoners had sub-clinical mental health concerns. Eight prisoners had attempted to die by suicide, and close to 50% had thoughts of dying by suicide.
Even death row prisoners not diagnosed with a mental illness had symptoms of poor mental health. Approximately one in five of these prisoners had attempted suicide at least once. Out of these, two had attempted suicide in prison.
Are those with mental disorders more likely to find themselves on death row, or is prison the cause? P39A’s research indicates that both might be true; prisoners come from vulnerable communities, have had multiple difficult and negative experiences and may already have mental health issues pre-incarceration. Adverse childhood experiences and exposure to traumatic events are correlated to the onset of mental illnesses later in life. Additionally, prison conditions can further lead to mental health concerns. The extremely restrictive conditions, the isolation from support systems, and the completely different and strictly controlled environment are some features of prison systems that create conditions rife for a mental health crisis, P39A found.
Drupad (34) shared a very close relationship with his grandfather because of their shared interest in wrestling. When a rumour began to circulate that his grandfather had died, Drupad attempted to take his own life. Eventually, his grandfather died by suicide—something Drupad blames himself for. On death row for over five years, he slept only 2-3 hours a night, had recurrent nightmares and was frightened of when he might be hanged. During the interview, he mentioned that he felt he had lost control of his life and did not want to live anymore. “Sometimes I think of going to the kitchen and pouring hot oil over me. I want to burn myself.” Following P39A’s assessment, Drupad was diagnosed with Major Depressive Disorder.
Rivan (61) had spent 12 years in prison, out of which 11 were on death row. Throughout the interview, he complained about how other prisoners would trouble him to get his land. He believed that others had implanted a ‘scientific device’ in him to usurp his land.. He had requested people to remove it from him. Following the assessment for the report, Rivan was diagnosed with Major Depressive Disorder, Generalised Anxiety Disorder and psychosis.
Dharmaketu began hearing voices that others could not during late adolescence. In his early 20s, he tried to die by suicide twice. In prison, he continued to experience intrusive thoughts and hear disembodied voices. Dharmaketu had been diagnosed with psychosis while his trial was going on. He was found unfit to stand trial, and his trial was suspended for five years. Despite it being on record, his history of psychiatric illness was not considered by the trial court or the High Court at the time of sentencing. He was sentenced to death in 2013 by the trial court.
Dr Murthy said there is a strong class element to the diagnosis and treatment of mental health in India, with the poor far less likely ever to have access to mental health practitioners. Given the background of deprivation that most prisoners come from, the rights of the accused would be better served if an inquiry into the presence of any issue or concern which has an impact on an individual’s mental, cognitive and volitional functioning were available to all accused, she added.
Life On Death Row
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Despite the often retributive and vengeful tone in which the death penalty is often discussed in India, the purpose of punishment—even while awaiting the death penalty to be executed—is not meant to be negative physical and mental health outcomes; the Supreme Court has itself rejected suffering as an aim of the death penalty. Yet Project 39A’s interviews show that negative health outcomes seem to be a foregone conclusion of death row incarceration.
The Project 39A interviews show that violence in its many forms is entrenched in the prison system, whether as a means of discipline, to establish hierarchies between the prisoner and prison administration or even between classes of prisoners, or as a means of subjugation. Many prisoners reported violence at the time of entry into prison as if like an initiation ritual in which every prisoner gets beaten up in prison.
One of the most important and invisible modes of violence was psychological and directly related to the prisoner being on death row.
“When I asked them about how my family was doing, the officials said, ‘Your family already considers you dead. They have performed your antim sanskar (last rites), they are not even interested in seeing you,” Diya (28) said. This was far from the truth—her family continued to visit her regularly, and in interviews with the Project 39A team expressed their love for her and their belief in her innocence.
Constant reminders of being condemned to death included being shifted to the “phansi yard”, being shown photographs of the gallows or being told that a hangman was being scouted for. This kind of continuous violence has near-fatal consequences, P39A found. One prisoner was driven to attempt suicide because a prison official told him he “did not deserve to live.”
The sensory deprivations enforced through solitary confinement took a special toll on prisoners. When Shehryar (35) arrived for the interview, he was blinking and rubbing his eyes because he was unused to sunlight. He had spent most of the previous five years in solitary confinement, not allowed books apart from religious books despite being a keen reader, and not allowed to perform any chores or work. “I couldn't smell flowers. Once I held a rose in my hand. After seeing that, the jail officials uprooted all the rose bushes in the jail since they had become suspicious. Post that incident, I never went close to any plant because of the fear that it might get chopped the next day,” Sheheryar told interviewers.
Many of those who attempt to retain a flicker of hope for self-betterment find it snuffed out: Mahadev (29) said that he wanted to earn more money and even take an exam in an open university, but as a death row prisoner, he was not permitted. In addition to the financial incentive, however minimal, work is an opportunity for prisoners to mingle with others and build support systems to help them cope with the reality of their life under the death sentence. However, almost all prisons had an official embargo on paid work for death row prisoners, which has had disastrous consequences for them.
Compounding the isolation and agony of death row are the barriers—many violating prisoners’ rights—to support from their families. In some prisons, death row prisoners were not allowed to use the prison phone facility to contact their families because of the penal provision they were charged with, such as murder. Sometimes, even where these facilities were available, they proved too expensive for death row prisoners, particularly because they were denied paid work in prisons. When families called the prison, many reported facing multiple difficulties in getting through.
“Punishment is a tricky territory because it's a legally permissible way of restricting rights and dignity-affirming experiences,” Misra acknowledged.
But that is precisely why any restriction which is more than strictly necessary and experiences which further disempowers and makes incursions into the already reduced sphere of dignity must be avoided, she said. “The state is the direct custodian of prisoners, and it becomes imperative that the State ensures that the rights of death row prisoners do not become illusory. This is what our jurisprudence repeatedly states,” she added.
Concluding–We Cannot Look Away
Identifying what the criminal justice system is currently missing from this data is relatively simple. The prisoners led difficult lives, and the impact of often inter-generational poverty, discrimination and abuse on the growth and development of the individual is being inadequately examined by courts. Questions of brain injury, cognitive impairment or intellectual disability have not even entered the lexicon of Indian death penalty jurisprudence, yet, they have direct consequences on responsibility attribution and put a person at higher risk of being vulnerable to the harshness of the criminal justice system.
The data on mental illness in the death row population presented in the report could be used to design effective preventive and curative care intervention strategies in prisons. But beyond these immediate and practical solutions, P39A’s investigation warrants a deeper inquiry into ideas of punishment, conditions of incarceration and life on death row in Indian prisons. There are implications here for the state’s responsibility in violations of the right to health, a fundamental right guaranteed under the right to life, and its effect on the continued application of the death penalty in cases where these violations occur, P39A researchers argue.
We can argue about the rapid recent extension of the death penalty in an apparent attempt to satiate public opinion. We can argue about life imprisonment and what that should mean for prisoners. We can argue about judges and judgements and judicial decisions. What we cannot do anymore is simply look away.
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Rukmini S is an independent data journalist based in Chennai.
This article was commissioned by Project 39A.