Had the Pakistani terrorist Mohammed Ajmal Amir Kasab struck in Ireland, UK,
Ukraine or Turkmenistan and killed the 166 innocent people that he did in
Mumbai on 26 November 2008, the question of death penalty for him would not
So also in the case of the assassins of former Prime Minister Rajiv Gandhi or
Afzal Guru, convicted of the 2001 attack on Parliament.
This is because the death penalty stands abolished not just in the four
countries mentioned above but in as many as 140 countries across the world.
Although India is among the 58 countries, along with the United States, China
and Japan, which uphold the death penalty, it has been moving cautiously
towards a moratorium on capital punishment – the first big step towards the
abolition of the death penalty.
The SC has been emphasising the need to give the death penalty only in the
'rarest of rare' cases.
While there are 300 people on Indian death row, in the last 17 years just 1
person – Dhananjoy Chatterjee – was hanged for raping and killing a school
In 1983, the Supreme Court gave a landmark ruling in the Bachchan Singh vs
State of Punjab case that the death penalty should be applied in the “rarest of
rare” cases. Since then, a large number of death sentences given by the high
courts and other lower courts have been commuted to life terms.
Recently, on 28 February, a Supreme Court bench comprising Justice AK Patnaik
and Justice Swatanter Kumar elaborated on its clear preference for life rather
than death while commuting a death sentence awarded by a Bilaspur trial court
to life imprisonment. The case was related to four convicts who were held
guilty of raping a married woman who died later. Justice Kumar emphatically
observed that “the basic principle, stated repeatedly” by the Supreme Court is
that “life imprisonment is the rule and death penalty an exception.” (For full
details, see www.legalblog.in/).
At the same time, he justified the imposition of the death penalty citing
various judgements of the SC such as the Dhanonjoy Chatterjee vs State of West
Bengal (1994) case in which a security guard was sentenced to death after he
raped and murdered a young girl whose mother had complained against him of eve
As Justice Kumar explained, “In our opinion, the measure of punishment in a
given case must depend upon the atrocity of the crime; the conduct of the
criminal and the defenceless and unprotected state of the victim. Imposition of
appropriate punishment is the manner in which the courts respond to the
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. The courts must not only keep in view the rights of
the criminal but also the rights of the victim of crime and the society at
large while considering imposition of appropriate punishment.”
He explained that while deciding on the death penalty, the court seeks to draw
a balance between the “aggravating circumstances” of the crime and the
“mitigating circumstances”. While heinous crimes such as acts of terrorism,
murder, rape, armed dacoity, kidnapping would fall under aggravating
circumstances, “mitigating circumstances” would include the manner and
circumstances under which the offence was committed, extreme mental or
emotional disturbance and extreme provocation. The age of the accused would be
“a relevant consideration but not a determinative factor by itself”.
Kasab’s arguments for a review of his death sentence that was awarded by a
trial court on 6 May 2010 and upheld by the Bombay High Court on 21 February
2011, tilts heavily in favour of the factors listed under the “mitigating
circumstances”. For example, senior advocate and amicus curie Raju
Ramachandran, who argued the case on behalf of Kasab in the SC, cited his young
age (21 at the time of the terror attack) as an important factor that had to be
considered. Also, that he was not acting on his own but was under the influence
of “skewed religious faith and false ideology”.
The prosecution lawyer Ujjwal Nikam has categorically stated that the terrorist
should be awarded capital punishment as “This is the rarest of rare cases. He
should not be entitled to any mercy.”
While the death penalty is legal in India, there is a growing lobby of highly
influential persons and others who are pressing for its abolition. They include
such notables as the senior Supreme Court lawyer Colin Gonsalves, former
Supreme Court Justice AK Ganguly and Justice KT Thomas, whose bench upheld the
death penalty in the Rajiv Gandhi assassination case.
While speaking in his personal capacity at a law school in November 2011,
Justice Ganguly described capital punishment as “barbaric” and “irresponsible”
but legal. According to him, even the “rarest of rare” doctrines was flawed as
it is “a grey area as it depended on the interpretation of individual judges.”
Internationally, Amnesty International is in the forefront in challenging the
death penalty while calling it “the ultimate denial of human rights” and “the
premeditated and cold-blooded killing of a human being by the state in the name
of justice.” According to Amnesty, in 2010, more than 2,000 people were
executed in China followed by 252-plus in Iran, 60-plus in North Korea, 53-plus
in Yemen, 46 in USA and 27-plus in Saudi Arabia.
Although it is now 20 years since the Rajiv Gandhi assassination, the review
petition on the death penalty awarded to the 3 assassins- Murugan, Santhan and
Perarivalan is continuing to linger in the courts. The Madras High Court has
now set March 27 as the next date of hearing on the appeal by the convicts that
there was a 11 year delay in the disposal of their mercy petition by the
The death sentence of the 4th convict- Nalini- was commuted to life sentence in
September 2011 following the intervention of Congress president Sonia Gandhi.
Commenting on India’s growing ambivalence on the contentious issue of death
penalty, The Economist observed in October 2011 that the case of Ajmal Kasab is
being viewed as a “big test” for India. “It will be a brave Indian who demands
that he be spared.”
(source: First Post India)