Project 39A is an initiative and a formal part of National Law University, Delhi (NLUD) which aims to develop conversations around the mental health of prisoners, death penalty, forensics, police brutality and custodial torture. With an upsurge in cases of police brutality coming to light (in India and the US), and rising public anger against the same, it has become all the more important to confront the excesses and the failures committed by the criminal justice system which was never designed to protect the marginalised in the first place. Be it the fake encounter of the Hyderabad police last year which killed all of the rape accused, the custodial rape, torture and murder of Jayaraj and Fenix or the slapping of false charges of UAPA on student activists, the nexus of the State-Police has revealed the impunity with which they can continue to operate without accountability.
I speak to the team at Project 39A to navigate these questions, and also think about a way forward in which we can re-imagine alternative justice policies, and fairly represent prisoners on trial for death penalty, especially in cases of sexual violence.
Q: What was the idea and the vision behind starting Project 39A?
Project 39A: Criminal law and criminal justice are areas where the coercive power of the state is at its most intense. And yet, policy and law-making and interventions in these fields are seldom evidence-based. Inspired by Article 39-A of the Constitution of India, Project 39A at National Law University, Delhi is an attempt to deepen evidence-based conversations on criminal justice issues and also design pro-bono criminal defense interventions.
Working with the criminal justice system has forced us to confront its deep-rooted structural flaws which exacerbate the oppression inflicted on the marginalised. Lack of access to competent legal representation, inadequate judicial scrutiny and political apathy combine to render meaningless the rights of the marginalised. This abdication of constitutional guarantees is further aggravated for those accused of the most serious offences owing to the structural imbalances within the criminal justice system.
Therefore, Project 39A strives to secure fair and equal access to justice by challenging discriminatory and unjust standards and practices within the legal system. Towards this objective, we focus on issues relating to legal aid, torture, forensics, mental health and criminal justice, and the death penalty. In order to find effective responses, Project 39A adopts an interdisciplinary approach to its work involving lawyers, legal researchers, social workers, forensic psychologists and forensic scientists.
Since its inception in August 2014 (first as the Centre on the Death Penalty till 2018), Project 39A has made consistent efforts to examine the functioning of the criminal justice system in India and ensure access to competent legal representation to persons under trial and those sentenced to death. The Death Penalty India Report (2016), a Project 39A’s flagship publication, was a unique pan-India study which highlighted the disparate impact of the death penalty on those belonging to economically and socially vulnerable groups in India. We also published an opinion study with 60 former Supreme Court judges on the criminal justice system, and death penalty in 2017.
In May 2020, we published a study on sentencing practices in death penalty cases adopted by trial courts in three states, from 2000 to 2015. Another study on the mental health of death row prisoners across five states is in the report writing phase. A study on the functioning of forensic science laboratories and the use of forensic evidence in India’s criminal courts has been initiated. We have also been involved in legal representation of over 100 prisoners sentenced to death in the last six years.
Currently, we represent over 65% of prisoners sentenced to death whose cases are pending before the Supreme Court. Apart from the work on assessing legal aid system, Project 39A has also established the Fair Trial Fellowship Programme in Pune and Nagpur to represent undertrials in those districts. Legal Fellows and Social Work Fellows work in close association with the prisons and district legal aid authorities to provide effective legal representation to undertrials. Our team of lawyers and social workers have assisted legal aid lawyers in over 1800 cases involving bail matters and criminal trials.
Also read: Sexual Violence And Rape: The Anatomy Of Reaction
Q: How does one navigate advocacy work, like your Project’s, in a society that is conditioned to have faith in retributive forms of justice? What challenges have you had to face, if any?
Project 39A: The fact that the public discourse on crime and punishment is deep rooted in ideas of vengeance with portrayal of offenders as ‘demons’ who do not deserve any rights, poses significant challenge for Project 39A’s communications and advocacy work. This strong belief in retribution comes from our collective reluctance to introspect on the socio-cultural, economic and political dynamics that produce crime in our society along with an acute lack of understanding of the realities of the criminal justice system.
Project 39A is also an effort to blunt the extremely sharp edges of this conversation using qualitative and quantitative evidence. In doing so, we rely on data and knowledge acquired from our research on criminal justice issues in the last six years and the experience of providing pro bono legal representation to accused persons from marginalised backgrounds at all levels of the judicial system—from the trial courts to the Supreme Court of India. To trigger new conversations and broaden engagement beyond the legal fraternity, Project 39A is also making significant investments in developing a public communication strategy on crime and punishment using different mediums and platforms. A good example of such efforts is a short video on our YouTube channel on the introduction of the death penalty for child rape.
Q: How do we move forward in creating and sustaining alternative forms of justice, especially for victims and survivors of sexual violence?
Project 39A: The foremost step towards even beginning to think about alternative forms of justice requires us to break away from the hegemony of punitive criminal justice. This need is even more immediate and urgent in sexual violence cases where as many as 94% of the perpetrators are known to the victims. This is not to say that punitive justice is not justifiable or that it should not be pursued. We have to understand that the meaning of justice can vary across survivors. For some, justice may very well be the infliction of punishment on the perpetrator through a criminal justice system. And for certain others, it might be found in restorative processes where they come together with the perpetrators to repair the harm that has been caused to them.
Also read: Infographic: Sexual Violence In Conflict
In imagining alternative forms of justice for survivors of sexual violence, we need to have more conversations about the concept of restorative justice. Unlike criminal justice where crime is the violation of the law and the state, restorative justice understands it as a violation of people and relationships. The focus in a restorative justice model is to restore a sense of justice by talking about who was harmed, who did the harm, what are their needs, and how these needs can be met. The concept is at a very nascent stage in India. Child Rights organisations—Counsel to Secure Justice in New Delhi and the Enfold Trust in Bangalore are one of the first few organisations in India that have taken the initiative to develop restorative justice as a response to children harmed by violence.
Featured Image Source: Project 39 A