The ‘rarest of rare' doctrine is a grey area: Justice Ganguly

Supreme Court Judge A.K. Ganguly on Tuesday termed death penalty “barbaric,” “anti-life,” “undemocratic” and “irresponsible,” but “legal.”

Expressing his “personal views” on the subject, Justice Ganguly said the constitutional guarantee of ‘right to life' could not be subjected to vague premises. The ‘rarest of rare' doctrine in death penalty cases “is a grey area as it depended on the interpretation of individual judges.”

He was addressing a two-day conference on the ‘Abolition of Death Penalty in India,' organised by the Jindal Global Law School, near here.

Justice Ganguly asserted that sentencing structures should be in consonance with constitutional goals. Referring to the establishment of guilt beyond reasonable doubt in criminal cases, he observed that it should be proved beyond “lingering” doubt in cases involving capital punishment. “This standard has not yet been evolved,” he said. Before inflicting death penalty, a judge must be extremely careful, weigh mitigating and aggravating circumstances. He also asserted that state must adduce evidence that the accused was not beyond reform.

In the keynote address, Roger Hood, Professor Emeritus of Criminology and Fellow of All Souls College, University of Oxford, emphasised that India should move beyond the law established through a Supreme Court judgment 31 years ago in the Bachan Singh case. He stressed need to embrace the “new human rights dynamic” and finally abolish capital punishment completely, even for politically motivated crimes as the vast majority of abolitionist states had done so. “Experience tells us that deterrence is an irrelevant consideration in such cases and executions often perpetuate the anger and resentment that fuelled such crimes in the first instance.”

Senior Supreme Court advocate Colin Gonsalves from the Human Rights Law Network expressed concern over the arbitrary and suspicious nature of application of death penalty — its application in Parliament attack cases such as the Afzal Guru and other cases. In the presidential Address, Chairman of the Law Commission of Karnataka V.S. Malimath differed with Professor Hood and said death penalty was not simply for punishing the wrongdoer, but protecting life and liberty of common citizens.

Referring to the growing number of murders, heinous crimes against women, children and terror crimes, he advocated retention of death penalty as a deterrent. He, however, added that a Bench of five judges should decide such cases in order to minimise error in judgment. Even if one judge among them did not agree to death penalty, there should be life imprisonment. Vice-Chancellor of OPJ Global University C. Raj Kumar felt that the abolition of death penalty was critical for India as research around the world had demonstrated that it not only violated human rights, but its penological objectives were not based on any empirical analysis.

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