A Group of Lawyers Wants to Make Sure India’s Most Hated Criminals Aren’t Hanged

Imagine spending five years of your life on death row. Then one day, the Supreme Court decides that you were wrongly convicted based on dodgy evidence and inconsistent testimony, including that of a nine-year-old who wasn’t even an eyewitness. 

After spending most of those five years in solitary confinement, possibly in a cell that overlooked the gallows, and living in constant fear of your impending state-sanctioned death, it’s likely you’ve developed significant mental health distress.

Imagine being released now and told to move on and pick up the pieces of your life. 

Now that you’re free, where do you go? Whom do you return to? What kind of life will you live?

This is what happened to labour workers Digamber and Girdhari Vaishnav from the central Indian state of Chattisgarh. They were sentenced to death in 2014 for robbery and the murder of five women, and later acquitted by the Supreme Court – thanks to the efforts of Project 39A, an advocacy group that provides high-quality, pro-bono legal representation to death row prisoners in India. 

Project 39A, inspired by Article 39A of the Indian Constitution, was founded in August 2014 by lawyers and researchers Anup Surendranath, Shreya Rastogi, Maitreyi Misra, Lubhyathi Rangarajan and Nishant Gokhale to help prisoners on death row. Their work aims to help solve the injustices caused by India’s often dysfunctional criminal justice system. Based in New Delhi, the group also runs free legal aid clinics in the cities of Nagpur and Pune. 

One of their key objectives is to change the conversation around the death penalty itself. They believe many who favour the death penalty see it as a form of violent retribution, and not so much as a deterrent to crime. In fact, studies have shown no link between the death penalty and murder rates. 

Surendranath, the group’s director, said that Indian society needs to move away from baying for blood and demanding harsher punishment as solutions to crime. 

“People need to acknowledge that society and circumstances have just as much a role as the individual when crimes happen,” Surendranath told VICE. “When a crime happens, society and the state have failed both the perpetrator and the victim.” 

A more meaningful way to think about crime and justice, the group says, is addressing the “systemic and institutional failures” that plague Indian society. 

Surendranath remembers exactly where he was when the idea of assisting death row prisoners first came to him: in a cab in New Delhi, listening to the news of Kashmiri separatist Afzal Guru’s 2013 execution on the radio. 

“How could somebody be executed in that manner, without telling anyone, lacking the most basic human dignity of even allowing a last meeting with the family?” Surendranath said. 

“There was significant satisfaction, joy and celebration at the execution, and I wondered if much of that was because we know so little about the death penalty in India. We just don’t know how they’re sentenced to death, how they’re kept, who these people really are,” he added.

Knowing this kind of basic information is crucial before handing out a final, irreversible sentence, Surendranath said.

Many of the lawyers at Project 39A earned their degrees from some of the world’s best universities. Why are they using their prodigious skills to help people who’ve committed heinous crimes, on whom society itself has practically given up?

In a country where "hang the rapists" is a commonly heard refrain when discussing sexual violence against women, they get asked this question frequently, and they’ve learnt to calibrate their answers depending on who’s asking, and why. 

“The difficulty is there is no five-minute answer; these are discussions that can spoil social events or a nice dinner,” said Surendranath. When confronted with such questions, he tells people it’s important to move away from the individual “crime master” narrative that society so readily accepts when thinking of death row prisoners. 

“Our intuition proceeds on the assumption that we’re individuals whose decisions are based entirely on free will. But so much of what we do depends on other factors we’ve gone through: what you experienced as a child and adolescent, your peers, your family – so many factors. Fundamentally, I try to show them that individuals are not atoms who function on their own, and that you and I as [part of] society have contributed to allowing it to happen,” he added. 

Misra elaborated: “When you hear about children being sexually abused on the street, you feel rage, but what are we doing about that? When I tell you someone is sentenced to death but also that they were sexually abused, beaten up for days as a child, you say you don’t care now. How do we calibrate our care like that?” 

Back in 2013, even the most basic information on the subject of prisoners condemned to death, like the total number of inmates on death row, didn’t exist. Given this cavernous gap in information, Surendranath decided to compile a socio-economic profile of nearly every prisoner on death row, based on interviews with them and their family members.

That report’s findings revealed that death row prisoners are some of the most isolated and vulnerable people in the criminal justice system. Their families, meanwhile, are some of its most pitiable unintended victims. 

The group found that 74 percent of the prisoners were economically vulnerable, and 63 percent of them were the primary or sole earners in their families. Seventy-six percent belonged to so-called “backward classes” and religious minorities. Many of the prisoners had been abandoned by their families. 

What’s more, Project 39A researchers found that, often, the families of these prisoners had themselves been ostracised from their villages and even forced to relocate, sometimes in haste. In some cases, the families would ask researchers to meet a few kilometres away from their homes, possibly to avoid appearing conspicuous. 

“I wasn’t prepared for the kind of experience it would be,” said Surendranath. “You jump into it thinking there’s so much to do, and it gets to you over time: how helpless you are, to hear all this suffering and helplessness repeatedly, in conditions of unimaginable poverty, and you’re not able to do anything for them.” 

Their conversations with prisoners revealed the custodial mistreatment and routine dehumanisation that death row prisoners face, and the near-total abandonment even by their own lawyers. Seventy-six percent of prisoners in the study reported that they never met their lawyers outside the court, and their interactions in court were “perfunctory.” 

The economic status of the prisoners also raised questions about the quality of the legal counsel they could afford. 

Providing quality pro-bono legal representation to these prisoners was the obvious next step. In 2014, the group of lawyers officially formed a permanent death penalty research centre and pro-bono legal services clinic.

Today, the project involves 50 lawyers and inter-disciplinary researchers whose work is aimed at solving inequalities and injustices within the system. They address problems involving custodial torture, mental health and criminal justice, forensics, sentencing and mitigation, in addition to pro-bono litigation services.

In February, they released a book of anonymised short stories based on the experiences of death row prisoners and their families, called The Punished, by Jahnavi Misra (HarperCollins), in order to bring their work to a wider, non-academic audience. 

The group also makes sure to stay in touch with death row inmates themselves. Project 39A’s interns even write letters to the prisoners to remind them that they haven’t been abandoned and aren’t alone.

It’s altogether demanding, delicate and emotionally draining work. Interviewing death row prisoners involves obtaining permissions from state prisons, and travelling to those distant places to conduct personal and often painful interviews in less-than-ideal research settings.

“It’s a prison setting, so you don’t know if they even really want to talk to you. You don’t know if [prison officials] have told them ‘they’ve come from Delhi and you have to talk to them,’” Surendranath told VICE.

He recounted how, in many prisons, the officials would refuse to provide a chair for the prisoners to sit on, until the researchers threatened to sit on the floor themselves, at which point a stool might be called in for the prisoner as well.

Misra found that, often, the prisoners would initially not be quite sure why someone would come and talk to them about their feelings, families and childhood experiences – or even talk to them at all – but that it gets easier once they’ve built a certain rapport. 

“If there’s no judgement, then you’re talking to them as with anyone else. Once you start speaking to somebody, you relate to their experiences, you laugh at similar things, find similar things sad, and relationship-building happens,” Misra said.

So what do a researcher from a premier institute in Delhi and a death row prisoner find to laugh about in jail? “Well, it could be a funny memory from their childhood, like when one prisoner narrated to us how he and a group of friends methodically ate their way through a whole field of kharbooja (muskmelon) in the quest for the perfect one,” Misra said. “Even serious issues: Many would say they can’t remember anything anymore: They leave their sandals somewhere and forget; they’ll wander off somewhere. The clouding of memories is a common effect of being on death row, and they’ll laugh at that.”

Misra emphasised the dehumanisation death row prisoners experience daily. One prisoner she was interviewing was repeatedly referred to as “fansi” (“execution,” also “hangman’s rope”) by a prison official. Death row prisoners are held in solitary confinement for most of the day, and Surendranath said many are housed in a way that ensures they can see the gallows from their cells. 

In some states, death row prisoners weren’t allowed to work in prison because they’re high-risk inmates, and officials didn’t want them to get hurt. “Like fattening them to be executed,” Surendranath said. 

A major result of the group’s work was the Supreme Court ruling that death row prisoners reserve the right to work, and that their segregated confinement was unconstitutional. 

Robin M. Maher, a law professor at the George Washington University Law School and former director of the American Bar Association Death Penalty Representation Project, said she admires Project 39A’s “innovative and groundbreaking” work. 

“One of the most important contributions a defense lawyer can make in a death penalty case is to show the humanity of their client by telling the story of their life experiences,” she told VICE via email. “[This] mitigation evidence helps explain criminal behaviour by placing it in the larger context of a defendant’s life. This understanding is critical to determining a defendant’s personal responsibility, which in turn affects how severely they should be punished.”

Their work has also led the court to acknowledge the role of mental health professionals in evaluating death sentences, and to recognise how being on the death row affects a person’s mental health. 

Rastogi, who deals with litigation and forensic research, said that there’s often a lack of scientific insight when the court deals with forensic evidence. 

“You sometimes find judges making guesses about, say, how DNA works. When we do judicial training sessions on forensics with trainee judges, it gives us hope when we see them understanding our research and asking questions about it, because in a few years, these judges will be on the bench,” she said.

After noticing that the court sometimes appointed pro-bono lawyers with no criminal law background at all, the group made a successful plea to the Supreme Court that only experienced advocates with a track record of handling criminal cases should be assigned death penalty cases by the court.

Supreme Court senior counsel Gopal Sankaranarayan told VICE that in his experience, Project 39A handling a death penalty case makes a substantial difference. He said the group’s lawyers are able to wade through and demystify the reams of paperwork, and help defense lawyers present the sharpest arguments in court.

Of course, the depressing and often harrowing nature of the group’s work also begs the question of how they manage their own mental health. Misra said some tools she’s picked up in therapy have helped her, such as knowing how to prepare for a certain interaction, or reminding herself that while she may empathise deeply with a prisoner’s situation, she is not in fact going through the same experience. 

But is all the hard, harrowing work worth it?

Project 39A has so far secured 28 commutations, four acquittals and six losses. It’s quite impressive, but Surendranath feels it’s not enough. 

“Is it really a victory, is it really justice, if we’re able to commute someone’s death sentence to life in prison with no possibility of parole?”

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