Abolition of death penalty has always been a heated topic of discussion. Justice A.K. Ganguly of Supreme Court, termed death penalty as “barbaric”, “anti-life”, “undemocratic”  and “irresponsible” but “legal” in the prevailing judicial system, at a two-day conference on the ‘Abolition of Death Penalty’ organized by the Jindal Global Law School.

Justice Ganguly asserted that sentencing structure should be in consonance with our constitutional goals. He observed that constitutional guarantee of right to life cannot be based on the vague “premises” of ‘rarest of rare’ depending on the interpretation of individual judges.

Justice Ganguly observed that guilt should be proved beyond “lingering” doubt in cases involving capital punishment. He cautioned the judges to be “extremely careful” and to weigh “mitigation and aggravating circumstances” before inflicting death penalty. The judge said that the state must adduce evidence that the accused cannot be reformed.

India should move beyond the 31 year old judgement of Bachan Singh case. There is a need to embrace “new human rights dynamic” and finally abolish capital punishment completely, emphasized Professor Roger Hood, Professor Emeritus of Criminology and Fellow of All Souls College, University of Oxford.  

He further recalled that India had ratified the International Covenant on Civil and Political Rights (ICCPR) and indeed was obligated under the covenant to move towards the abolition of death penalty.

On the contrary, Justice V.S. Malimath, Chairman, Law Commission of Karnataka, advocated retention of death penalty as a deterrent. He stated that death penalty is not simply for punishing the wrongdoer, but protecting life and liberty of common citizens while referring to the growing number of crimes.  

He however added that a bench of five Judges should decide such cases in order to minimize error in judgement. Even if one Judge among these five Judges does not agree to the death penalty, there should be life imprisonment. The expression “rarest of rare cases” should be clarified. He also suggested more humane methods such as the lethal injection be used to administer death penalty.

“It is not draconian laws that deter crime, but the certainty of wrong doers being caught and punished under just laws, justly administered that best guarantee the safety and equanimity of a society” stated Mr. Virendra Dayal, former Member of the National Human Rights Commission.

Professor C. Raj Kumar, Vice Chancellor, O.P. Jindal Global University and Dean of Jindal Global Law School observed that: “The abolition of death penalty is critical for India as research has demonstrated around the world that it not only violates human rights, but its penological objectives are not based on any empirical analysis. The “rarest of rare” doctrine is in itself violation of the equality clause in the Constitution of India and allows extraordinary discretion on the part of the judges to determine who will live or die and clearly promotes arbitrariness in judicial decision-making processes.”

Arbitrariness was another concern emphaised as a key reason for the abolition of death penalty by several speakers at the two day conference organized in collaboration with the South Asia Human Rights Documentation Centre, Human Rights Law Network and the Centre for Development and Human Rights.