Interview with Justice A.K. Ganguly, former Supreme Court judge and Chairman of the West Bengal Human Rights Commission.

Interview with Justice A.K. Ganguly, former Supreme Court judge and Chairman of the West Bengal Human Rights Commission.

‘Criminal justice system needs overhaul’

SUHRID SANKAR CHATTOPADHYAY

www.legalfreedom.in

A.K. Ganguly: "If one mitigating circumstance is enough to indicate that the convict cannot be subjected to the death penalty, then that must weigh in the conscience of the judge."

Justice A.K. Ganguly was a judge of the Supreme Court from 2008 to 2012 and before that Chief Justice of the Orissa and Madras High Courts. As a Supreme Court judge, he passed landmark judgments in various important cases, including the 2G spectrum case, in which he was a part of the Bench along with Justice G.S. Singhvi. He is now Chairman of the West Bengal Human Rights Commission. In this interview with Frontline, Justice Ganguly, known for his outspoken views and comments, talked about various aspects of the death penalty in the country. “The criminal justice system in our country needs a substantial overhaul,” he said and pointed out that courts must scrupulously observe the ratio (underlying principles) in the Bachan Singh case and “must eschew the principles of retributive justice”. Excerpts from the interview:

The “rarest of rare” doctrine laid down in the Bachan Singh judgment to limit application of the death penalty has, according to observers, resulted in the imposition of the death penalty in cases that did not warrant it. Would you agree with this view?

I would agree, and this is also the judicially accepted position. If you look at the background of the Bachan Singh case, there are several aspects that have to be considered. The question of death penalty in respect of certain crimes was introduced to our jurisprudence by the Indian Penal Code, which was introduced in British India by our colonial masters. There was a Code of Criminal Procedure [CrPC], 1898. Its Section 367(5) mandated that in a case where the death penalty was prescribed, the court while granting any penalty other than the death penalty had to record reasons. Therefore, prior to the coming of the Constitution, the position was that the death penalty was the rule and life imprisonment was an exception. This provision continued in our Constitution in 1950 and was deleted in 1956.

But the Code of 1898 continued till it was replaced by the present Code of 1973. Under the 1973 Code, some remarkable changes took place in view of the recommendations of the 41st Law Commission, which held that our sentencing procedure was not properly framed. As a result, in the 1973 Code two provisions were introduced – Section 235 (2), which provides for hearing the accused on the question of sentence; and Section 354, where Sub-section 3 provides that where death penalty is to be given the court has to record special reasons. These two provisions were very important as they led to the “rarest of rare” doctrine. Prior to Bachan Singh, in 1973, in the Jagmohan case, the constitutionality of the death sentence provision was questioned, and it was affirmed. But at that time it did not have the benefit of the aforesaid two provisions.

Therefore the Bachan Singh ratio is largely built around these two provisions, and the Supreme Court held that the death penalty should be an exception and life sentence the rule. The previous jurisprudence was reversed. Our constitutional jurisprudence had also undergone substantial change – in view of the decision in Maneka Gandhi, the American doctrine of “due process” was introduced, and in Sunil Batra the Supreme Court held that the “prohibition against cruel and unusual punishment”, which is there in the Eighth Amendment of the United States Constitution, is also virtually present in our jurisprudence. The combined effect of all this was the evolution of the “rarest of rare” doctrine.

These changes in our laws reflect the evolving standards of fairness which mark the progress of a maturing democracy compatible with the dignity of the individual – the core constitutional value. The “rarest of rare” doctrine is now internationally appreciated by David Pannick in his book Judicial Review of Death Penalty and in Treatise on The Death Penalty by Roger Hood and Carolyn Hoyle.

But I agree with your question that this principle of Bachan Singh has not been uniformly followed by the smaller Benches of the Supreme Court, and in cases which do not warrant the death penalty, the death penalty has been imposed, as noted in Santosh Kumar Bariyar. The Supreme Court noted that the decision of the Supreme Court in Ravji in 1996 was given without following the ratio in Bachan Singh. The Supreme Court held that the decision in Ravji was rendered per incuriam [out of error or ignorance], and noticed that the decision in Ravji was followed by the Supreme Court in at least six other cases. The Supreme Court has also found in Swamy Shraddananda that a lot of subjectivity has crept into the process of sentencing in death sentence cases.

The requirement in the Bachan Singh case that the death penalty should be considered only if the alternative sentence (life imprisonment) is unquestionably foreclosed has, according to observers, been given short shrift by many judges of the Supreme Court. Should the prosecution give evidence in every case why the alternative sentence is not possible and whether the convict cannot be reformed?

Yes. The ratio in Bachan Singh requires that the prosecution must prove that the convict is a threat to society and is beyond repair. These two mitigating circumstances, apart from various others, which have been enclosed in Bachan Singh must be proved by the prosecution to be absent, and obviously the accused will have a chance to participate and rebut the evidence produced by the prosecution. The Supreme Court in Bachan Singh endorsed in paragraph 206 the mitigating circumstances suggested by the learned counsel appearing before it. So when the prosecution demands the death sentence, it must satisfy these tests. That is how application of the death sentence is restricted. But, unfortunately, this Bachan Singh ratio has not been followed by the Supreme Court in many cases – a fact noted by the Supreme Court itself in Bariyar.

Mitigating circumstances

The Bachan Singh case lists the mitigating factors to be taken into account by a judge while considering the death penalty. Should the death penalty be ruled out even if one mitigating factor is present in a given case? According to observers, even Ajmal Kasab qualifies for two of these factors – age and ideology-driven crime.

About Kasab, I will not make any comment since the matter is sub judice before the Supreme Court. My interpretation of the Bachan Singh ratio is that while weighing the aggravating and the mitigating circumstances, the judge must give due weight to the presence of mitigating circumstances. If one mitigating circumstance is enough to indicate that the convict cannot be subjected to the death penalty, then that must weigh in the conscience of the judge.

You see, in our country the mitigating and aggravating circumstances are not statutorily indicated; they are judicially evolved principles on the basis of various decisions. While evaluating these circumstances, even one mitigating circumstance may be enough in a given situation for not giving the death penalty, since the death penalty is irreversible in nature.

Former President Pratibha Patil commuted death sentences for 35 convicts during her term, and left undecided mercy petitions filed by 16 convicts for the consideration of her successor. Can inordinate delay in deciding a mercy petition alone be a consideration for commuting a death sentence?

Yes it can. If you keep a person on death row for a very long time, that by itself is a sufficient penalty. The Supreme Court has held that delay in considering commutation is a ground for granting commutation.

The government seems to be following a policy of rejecting mercy petitions filed by those convicted in terrorist crimes. Some observers have warned that this may be counterproductive as in most cases the masterminds of terrorist attacks are either killed during encounters or elusive and untraceable; those sentenced to death are either not aware of the terrorist designs of their masters or are brainwashed into committing terrorist acts.

In formulating policies for commutation there cannot be a straitjacket. Mere participation in a terrorist crime cannot [be the grounds to] deny a person equal rights along with other persons applying for commutation. Every case has to be judged on its individual facts. Straitjacketing or labelling such cases is certainly unreasonable. I do not know whether there is such a policy.

But legally there cannot be any predetermined policy of dealing with a case of commutation. The conduct of the person praying for commutation, the circumstances under which the crime was committed, his background, his past history as a criminal, all these things have to be considered. If there is a predetermined policy, that policy is unreasonable.

Many convicts also seem to suffer from varying degrees of mental retardation when they commit murder. Is it fair to subject such convicts who have subnormal behaviour symptoms to the death penalty? Should Indian standards of insanity be reviewed?

The standards of insanity fixed in our statutes under Section 84 of the Indian Penal Code and Section 328 of the CrPC require to be reconsidered in the light of the development of the law, especially in the United States – in Penry vs Lynaugh (492 U.S. 302) and Atkins vs Virginia (536 U.S. 304). These are very valid questions of human rights and can be a facet in the mitigating factors. The mitigating factors are never closed. This emerging concept of the mental state of the convict – he may not be insane but may be suffering from other kinds of mental derailment – is certainly a matter for consideration.

Those who are mentally retarded or a person with a deficient IQ – before imposing the death penalty, their cases require a more human consideration in view of the emerging jurisprudential development in the cases I have already indicated.

Abolition debate

Are you in favour of retaining the death penalty in the statute books? Or do you think the time has come to abolish it in India?

This is a very complicated issue. The death penalty is not only a legal issue, but also a complex social and ethical issue since you are dealing with human life. In Bariyar, the Supreme Court has already indicated that. All over the world opinion is gaining ground against the death penalty, and about 138 countries have opined in favour of abolishing it in different forms or limiting it to very few cases. In our country, when the death penalty was constitutionally upheld in Jagmohan, the court looked into the 35th Law Commission report submitted in 1967. The Law Commission, after considering various social aspects, considering the size of the country and various standards of morals prevailing among various communities, opined in favour of retaining the death penalty. The Supreme Court judgment [in Jagmohan] relied on this. In Bachan Singh also the same 35th Law Commission report was referred to. We have come a long way since 1967.

I think the time has come for the Law Commission to re-examine the issues once again, in their proper perspective and in the context of the emerging global trend where the number of countries abolishing the death penalty has gone up substantially from what it was in 1967. In view of the Bachan Singh judgment I cannot say today that the death penalty is unconstitutional, but freakish and random imposition of the death penalty is certainly unconstitutional.

Full-life sentence

Do you think the death penalty accomplishes any sentencing aim better than any other penalty, including the full-life sentence?

I have some reservation about the full-life sentence. The court cannot reconstruct a sentencing procedure which is not contemplated in the statute. The court can certainly exercise its discretion in deciding which of the alternative sentences prescribed in the statute should be imposed. A full-life sentence forecloses the convict’s constitutional right of seeking remission or pardon from the President under Article 72 or from the Governor under Article 161. These rights of the convict flow from his fundamental right under Article 21.

Therefore the court in my view cannot, by devising a third method of sentencing procedure, create an obstacle in the operation of constitutional principles.

Does our criminal justice system, with its deep problems in the police, prosecution and system of criminal defence, inspire enough confidence in you so as to administer an extreme penalty such as the death penalty?

The criminal justice system in our country needs a substantial overhaul. Dissatisfaction with the system is well known. But that by itself cannot be a reason to outlaw the capital punishment provision. As I have said, at the time of imposing capital punishment the courts must be very circumspect and very careful in exercising their discretion. The courts must scrupulously observe the ratio in Bachan Singh and must eschew the principles of retributive justice. A system is as good or as bad as the persons who are manning it. The present system, if properly handled, can be quite effective. The difficulty is not with the system, but with those who are running it.

So would that make it difficult for a judge to impose an extreme penalty ?

Whether the death penalty will be given or not is a matter which in our country is largely given to the discretion of judges on certain guided principles. The ratio of these “guided principles” must be followed. A judge is not a free agent while imposing the death penalty. His personal choice and opinion, the effect which the crime has on his passion, must be set aside and the entire matter should be very objectively considered on the lines of the principles which have already been established.

Do you feel there is a possibility of miscarriage of justice in capital punishment cases in spite of safeguards such as mandatory High Court appeal and provision of separate sentencing hearing?

Miscarriage of justice has taken place, which has been noted in Bariyar and it’s a case of grave miscarriage. It has only taken place because of improper perception, I am sorry to say, even of the learned judges of the Hon’ble Supreme Court.

What safeguards would you recommend in the short term to make the administration of the death penalty more secure in India?

Normally a case of death penalty ends its journey at the Supreme Court. I would recommend the Supreme Court to consider death penalty cases by a Bench of at least three judges, and if there is a split verdict among these three judges, then the death penalty should not be imposed. It can only be imposed on the basis of a unanimous verdict by a Supreme Court Bench of at least three judges.

How will you place the death penalty as a punishment in a democracy like India, which has its political ethos shaped by such enlightened souls as Gandhi, Tagore, Ambedkar and Nehru?

These are very great names, but today mostly they are remembered by garlanding their portraits. Their principles are hardly followed. Just names will not make any difference. If we are to take our democracy to a more mature level, we must heed the principles which were laid down by these great souls of India. Especially when we call Gandhi the Father of the Nation, the death penalty is not compatible with his principles.

The Supreme Court in the Bachan Singh case opted for reform in the administration of capital punishment rather than abolition. Has the dictum in the case satisfactorily served the cause of equal justice and error-free and constitutionally secure administration of capital punishment in the last three decades?

Bachan Singh has been followed in the majority of the cases, but there have been some departures, which have been noted by the Supreme Court itself. Those departures are unfortunate. But, by and large, Bachan Singh has been followed.

Recently, the Supreme Court in a series of decisions, including your decisions, has admitted there is arbitrariness in the selection of penalty in capital cases. How do you see this increasingly visible evidence of subjectivity?

It is an unfortunate development in some cases. But, fortunately, the Supreme Court has now taken a different view of the development and pointed that out in Swamy Shraddananda and in Bariyar.

I feel that the law relating to capital punishment should be more structurally defined rather than keeping it at the stage of judicially evolved principles; that is, the mitigating and the aggravating circumstances can be structurally indicated and defined; and it would be the court’s duty to consider them before awarding the death penalty.


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