Death penalty ‘barbaric, anti-life’: SC judge


NEW DELHI: Justice AK Ganguly of the Supreme court has termed the award of death sentence as “barbaric, anti-life, undemocratic and irresponsible” which is “legal” in the prevailing judicial system.

Describing this as his “personal view”, Justice Ganguly said the Constitutional guarantee of right to life cannot be subjected to “vague premises”. The doctrine of the crime falling in the’rarest of rare’ category in awarding the death penalty was a “grey” area as its interpretation depended on individual judges, he said, adding the “sentencing structures” should be in consonance with the goals set by the Constitution. The remarks were made by Justice Ganguly yesterday at a two-day seminar on ‘Abolition of Death Penalty in India‘. The seminar was organized by the Jindal Global Law School at Sonepat in Haryana. The sitting judge of the apex court said sending a convict to the gallows, is legal but “barbaric, anti-life, undemocratic and irresponsible”.. The guilt of an accused should be proved beyond “lingering” doubt in cases warranting the award of capital punishment, which has so far not yet been evolved.

He cautioned that before giving death penalty, a judge must be “extremely careful” and weigh “mitigating and aggravating circumstances”. The Judge said the state must adduce evidence that the accused cannot be reformed.

Is this real justice?



Capital punishment is retributive justice and abolishing it is a risk that modern states need to take, says Pamela Philipose.

Gabriel Garcia Marquez‘s classic, One Hundred Years of Solitude, begins with a line that could be read as a powerful argument against capital punishment: “Many years later, as he faced the firing squad, General Aureliano Buendia was to remember that distant afternoon when his father took him to discover ice.”

The imminent extinction of a sentient life endowed with thought and memory, linked intimately to the lives of others, is a fearsome thing. So it is entirely understandable why that angst-ridden question — Should India remove capital punishment from its statute books? — refuses to go away. Here we are, with our much-feted legacy of non-violence, with our burnished democratic Constitution and Credentials, still attached by the feet to the ever-shrinking corner of the globe which continues to defend the death penalty.

Uneasy defence

It has been an uneasy defence for sure. The umbrella formulation that the death penalty should only be accorded in the “rarest of rare cases”, put forward in 1980 by the Supreme Court in Bachan Singh v. State of Punjab, has remained an uncertain talisman with Indian courts interpreting it in an astoundingly variegated manner, but it has remained a talisman nevertheless. Indian Presidents, too, have routinely dragged their feet over rejecting mercy pleas. The country has also, incidentally, seen attempts to institutionally “reform” the administration of the death penalty. The ‘Model Prison Manual for the Superintendence & Management of Prisons In India’ (2003) recommends that all prisoners going to meet their fate at the gallows be made to wear “a cotton cap with flap” so that he/she will not be able to see the gallows — an highly ineffectual aid, surely, under such circumstances.

Internationally, India continues to remain in an ambiguous position. It is party to the International Convention on Civil and Political Rights that requires countries to move towards the abolition of capital punishment, but has desisted from ratifying the Second Optional Protocol to the Convention and last November it voted along with China and Saudi Arabia to oppose a UN resolution for a moratorium on the death penalty.

So while there may be some curling of toes over the prospect of denying criminals on death row their right to life, the Indian State has consistently balked at doing away with the hanging option. By and large, the argument put forward by the Law Commission of India in 1967 continues to hold sway. In its 35th Report, the Law Commission pronounced that “Having regard… to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”

Necessary risk

The fact is that 139 countries in the world — and their number is rising not declining — despite serious security challenges have taken this “risk”, precisely because it is a risk that modern and modernising states should take, given that not doing so would compromise the very notion of an enlightened state. Remember that many of these countries have had long and grisly trysts with capital punishment. Pre-19th century England, for instance, had over 200 “crimes” that could invite a hanging sentence. The list included thievery (goods valued at five shillings and more), maiming horses, impersonation and ‘sodomy’.

One of the justifications for persisting with the death penalty is, of course, that inchoate, arbitrary, unquantifiable and often irrational concept known as “public opinion”. Indian courts, incidentally, have been sensitive to “public opinion”. In a judgment, Dhananjoy Chatterjee v State of West Bengal, that had led in 2004 to the last public hanging India has witnessed so far, the Supreme Court stated: “Imposition of appropriate punishment is the manner in which the courts respond to society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime…”

But “society’s cry for justice” is an uncertain foundation for justice as Arthur Chaskalson, who served as Chief Justice of South Africa from 2001 to 2005, reiterated. He put it this way, “Public opinion may have some relevance to the enquiry, but in itself it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication…”

The founding fathers and mothers of post-Independence India did not ban capital punishment and retained the 1861 Indian Penal Code providing for the death penalty. But it was not as if they did not envisage the possibility of the country exercising that option at some point. Amiyo Kumar Ghosh, a member in the Constitutent Assembly, while opposing an amendment that wanted a partial ban on capital punishment, went on to say, “I think that with the growth of consciousness, with the development of society, the State should revise a punishment of this nature…”

Why persist?

The questions we then need to ask is why, despite the long decades that have intervened since those words, India still cannot countenance such a possibility. Why does it continue to perceive the hangman’s noose as coterminous with the scales of justice? Why does it settle for peremptory and irrevocable responses to heinous crimes, when the world is engaging with ideas of restorative rather than retributive justice? Can’t post-independence India not hold itself to standards higher than those set by its one-time imperial rulers, standards that had been sharply critiqued by the freedom movement?

A passage from Bhagat Singh’s last petition to the Punjab governor should give us pause: “As to the question of our fates, please allow us to say that when you have decided to put us to death, you will certainly do it. You have got the power in your hands and the power is the greatest justification in this world. We know that the maxim ‘Might is right’ serves as your guiding motto. The whole of our trial was just a proof of that. We wanted to point out that according to the verdict of your court we had waged war and were therefore war prisoners. And we claim to be treated as such, i.e., we claim to be shot dead instead of to be hanged.”

He and his comrades in arms, Rajguru and Sukhdev, were hanged on March 23, 1931.

The journey of a mercy plea


Of the 28 mercy petitions pending with the Central Government, 21 cases are pending with the President’s Secretariat while seven are with the Union Ministry of Home Affairs (MHA). Article 72 of the Constitution empowers the President to grant pardon, suspend and remit death sentences and commute the death sentence of convicts on death row. Maneesh Chhibber explains how the entire mercy procedure works.

Who can file a mercy petition on behalf of a convict on death row?

Anybody, including foreign nationals, can send a mercy petition with regard to such a person to the President’s Office or the MHA. Mercy pleas can also be sent to the Governors, who forward them to the MHA for necessary action. A convict can file a mercy plea from jail either through prison officials or through his lawyer or even his family. Mercy petitions can also be emailed to the Home Ministry or the President’s Secretariat.

Is there a time-frame within which the President has to dispose of a mercy petition?

No. The Constitution doesn’t have any maximum time-limit within which a mercy petition has to be decided. There have been instances of mercy petitions lying with the President for over a decade without any decision being taken. The MHA can’t ask the President to speed up the process.

Why is there such a long list of pending mercy petitions?

The reason for the pile-up is that successive Presidents have dithered in deciding pending mercy petitions. Most of the pending cases —- 28 in number as of today —- in the Rashtrapati Bhawan were left undecided by the current President Pratibha Patil’s predecessor, A P J Abdul Kalam. During his five-year stay in the Rashtrapati Bhawan, Kalam decided only one mercy plea —rejecting the plea of rapist Dhananjoy Chatterjee, who was thereafter hanged. Similarly, Kalam’s predecessor K R Narayanan also didn’t clear any mercy petition. The only President in recent times who diligently performed this Constitutional duty was Shankar Dayal Sharma.

What is the view of President Pratibha Patil on mercy petitions?

Like her predecessor, President Patil is not keen on clearing any pending case. She is said to be of the view that since most of the pending mercy petitions were left by her predecessor, she can’t be pushed to clear the pile. However, it is not known whether she supports or opposes the death penalty.

Can the President disregard the recommendations of the MHA in mercy petition cases?

No. Under the settled law, including judgments of the Supreme Court, the President is bound by the advice of the Union council of ministers while deciding mercy petitions. In a legal opinion, the previous Attorney General said that the recommendation of the MHA can be accepted as the view of the entire council of ministers on the subject because under the Transaction of Business Rules of the Government of India, the MHA is the Ministry charged with making recommendations with regard to mercy petitions by those on death row. In one case, then President Kalam returned the file of a convict, saying he didn’t agree with the recommendation of the MHA with regard to that particular case. He was of the view that the convict deserved to get his death sentence commuted to life without parole. However, the MHA refused to abide by his view.

Can the Central Government fast-track any particular cases?

While a lot has been said and written about how the Centre plans to jump the queue and fast-track the hanging of Pakistani gunman Ajmal Kasab, the possibility of such a thing happening is still not known. A lot would depend on whether the President agrees to decide Kasab’s case, if and when it is filed, out of the pending cases and decided the same without deciding the other cases.

Limits to the death penalty


What will ultimately be remembered about a court is not how resolute it was but how articulate and skilful it was in meshing firmness with mercy and kindness.

Judges in India award the death sentence only in “the rarest of rare cases”, a formula that works very well.

Notwithstanding my abhorrence of capital punishment, I keep track of all awards of death penalty and how they are administered by courts the world over. There have been no major problems in India in this regard. Judges in India have been commendably circumspect in awarding the death sentence to an offender and restrict it to “the rarest of rare cases”, a formula that has worked very well.

This restraint shows the maturity of our judiciary. It also at least partially placates many of us who demand the abolition of capital punishment. I am, therefore, amused whenever parliamentarians demand a change in criminal law that will extend death to rapists and similar transgressors of law and civilised conduct. However well meaning they may be, these lawmakers forget that the moment capital punishment is awarded for offences other than murder, the standard of evidence that a judge will look for goes up greatly. Given the usually low quality of our criminal investigations, many offenders, including child rapists, who deserve to be locked up for several years could go scot-free.

My immediate focus, however, is on a few judgments relating to death sentence delivered by the United States Supreme Court. I must confess my admiration for that court because its proceedings are so well documented and much discussed that they make for fascinating reading, apart from being educative. Again, the built-in transparency that marks the process of choosing its judges, however controversial, is unique in a world that ceaselessly craves to reduce injustice in judicial processes.


On November 30, 2009, in Porter vs McCollum, the U.S. Supreme Court overturned a 1987 Florida Supreme Court decision to convict Porter (77), a Korean war combatant, who had been found guilty of murdering his former girlfriend and her boyfriend in Melbourne (Florida). (In the U.S., every State has a Supreme Court with the U.S. Supreme Court in Washington, D.C., at the top of the pyramid.) Interestingly, Porter attended only a part of the trial court hearings and later chose to plead guilty. At the sentencing hearing, he was represented by a court-appointed lawyer, Sam Bradwell, who had never defended an accused in a capital sentence proceeding. Not surprisingly, therefore, Bradwell did not talk to any of Porter’s relatives or go through his school, medical or military service records before addressing the court. Porter went on appeal following his conviction for one of the murders. After losing twice in Florida courts, he moved Federal Courts on a habeas corpus writ on the grounds that his lawyer had failed to inform the jury about his experiences in the Korean war and its aftermath. This was, according to Porter, an omission that fell far short of the Constitution’s minimum standards for adequate representation.

Consistency is not always a judicial virtue. Judges come from varying backgrounds and each carries baggage that determines his or her responses to a particular crime. The U.S. Supreme Court, which sits collectively all the time, is invariably split between a conservative group and a liberal group, and the odd number of its strength (nine) makes it impossible to be arithmetically equally divided. Except, of course, when one judge refuses to fall under a label and decides each case on merit. Unanimity is, however, not unknown to that court.

In the Porter case, it expressed itself in unison – the judgment therefore was unsigned – and said: “Had Porter’s counsel been effective, the judge and jury would have learned… about Porter’s heroic military service in two of the most critical – and horrific – battles of the Korean war…. The relevance of Porter’s extensive combat experience is not only that he served honourably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and emotional toll that combat took on Porter.”


Significantly, the court did not attach importance to the fact that he committed the murders in 1986, more than 30 years after the Korean war had ended. Writing in The New York Times (“Selective empathy”, December 3, 2009), columnist Linda Greenhouse contrasted the court’s solicitude to Porter with its decision in the case of Robert J. Van Hook, another military veteran and death-row inmate, this time from Ohio. In November, the same judges reversed the appeal court’s judgment in this case. He had robbed and murdered a man whom he picked up in a gay bar. The only difference was that Van Hook had been dismissed from the army for alcohol and drug abuse.

The appeals court had acquitted him on the grounds of insufficient representation by his trial lawyer of several mitigating factors, which included a history of mental illness, cruel treatment at the hands of parents and his witnessing as a child his father trying to murder his mother. Linda Greenhouse is intrigued how two different standards came to be applied, particularly when both Van Hook and Porter had traumatic childhoods. We have perhaps not heard the last word on the subject. Also, we do not know how the Porter ruling will impact the nearly 3,300 convicts languishing on death row. More significantly, the compassion shown to Porter is something that the Indian judiciary may like to ponder whenever it is called upon to decide on the culpability of ex-servicemen in a criminal court.

In another case, the U.S. Supreme Court refused (December 3, 2009) to stay the execution of Bobby Wayne Woods (44), who was convicted for a 1997 murder of an 11-year-old girl in Texas. His lawyers argued that Woods was too mentally impaired to qualify for capital punishment. Over the years, his intelligence quotient ranged between 68 and 86. Support was sought from the 2002 decision by the same court that reprieved one Daryl Atkins, who had been convicted for abduction, armed robbery and capital murder. This lenience was on the basis mainly of a forensic psychologist’s testimony that Atkins was mentally retarded. Justice Paul Steven, who wrote the 6-3 judgment, said that death to such a person was an “unusual and cruel punishment” prohibited by the Eighth Amendment.

For some reason, the Atkins decision did not come to the rescue of Woods. Legal experts believe that the 2002 ruling had left behind a grey area as to who qualified and who did not on standards of impairment. This was possibly left by the U.S. Supreme Court to be decided by State courts. It is reasonable that the I.Q. score is perceived as a good standard to determine the degree of mental impairment. Professor Maurie Levin, who teaches law at the University of Texas and who defended Woods, told the court that Woods’ I.Q. was around 70 and that this was “the magical cut-off point for determining whether someone is mentally retarded”. The court was not impressed with this argument and gave the green signal for Woods’ execution.

A third case before the U.S. Supreme Court that has received some publicity now is the one from Alabama. Here, one Billy Joe Magwood is on death row for murdering a County Sheriff in 1979. The then State law imposed two conditions for a death sentence: the offence on hand should be within a list of 14, and there should be some aggravating circumstances under which it was committed. Magwood satisfied the first but not the second condition. Unfortunately, his lawyers were harping right through on grounds other than the absence of “aggravating circumstance”. They brought this up only in 1997, more than 15 years after he was sentenced to death and 12 years since his re-sentence.

The U.S. Court of Appeals rejected Magwood’s appeal in January 2009 as being too late. In projecting a humane face, the U.S. Supreme Court has however now agreed to hear Magwood in spring. The court has made it clear that it will discuss not the rightness of the sentence but whether Magwood’s new lawyers were too late in raising the point that what Magwood did in 1979 was not a capital crime at that time. Not many gave Magwood a chance of being heard by the apex court. This is no doubt a victory of sorts for the defendant. But what is more significant is that the apex court chose to spare time amidst its tight schedule to examine a purely technical point.

This reveals high sensitivity and compassion to a convict and is in sync with one of its 2008 decisions (Kennedy vs Louisiana), when it held that it was unconstitutional and disproportionate to award death sentence to a child rapist, however abominable his act might be. This ruling did not exactly gel with hardliners in the country. I thought this was an endeavour to show a humane face because what will ultimately be remembered about a court is not how resolute it was but how articulate and skilful it was in meshing firmness with mercy and kindness. Superior courts would distinguish themselves if they conformed to this exacting standard while dispensing justice.