Death penalty a 'lethal lottery': Justice Ganguly

Amidst a raging debate on death penalty, former Supreme Court judge, Justice A K Ganguly, has said that “freakish and arbitrary” modes of death sentencing are being exercised and it is virtually making capital punishment a “lethal lottery”.

Ganguly wrote in his new book that the debate on whether to continue with death penalty should go on despite various orders of Supreme Court upholding such a punishment, as the "very nature of the problem" mandates a review from time to time in order to be in tune with the "evolving standards of decency in a maturing democracy".

The 68-year-old eminent jurist said Parliament should not ignore the vital aspect of Constitutional values involving capital punishment and structure the sentencing process in the imposition of death penalty in accordance with Constitutional values of human dignity and Right to Life.

“The sooner it is done, the better," he said.

Ganguly, who retired in February 2012, felt that the "apprehensions" of two former judges, Justice P N Bhagwati and Justice V R Krishna Iyer, about a judge's value system and social philosophy determining the award of death sentence "have come true".

"A penalty which is irrevocable and a damage which is beyond repair on the most
precious right of a human being cannot be left at the present state of uncertainty in which freakish and arbitrary modes of death sentencing is currently exercised," he stated in his new book 'Landmark Judgements That Changed India'.

Ganguly wrote that the 'rarest of rare' doctrine, espoused in the famous Bachan Singh case, was diluted later and smaller benches of Supreme Court also "did not follow it uniformly'. He wrote that after the Bachan Singh verdict, the court later was trying to articulate a doctrine of 'cry for justice' and social necessity.

Citing two judgements of December 12, 2006, he said that "disparity in sentencing standards even at the level of the Supreme Court, is very frustrating and virtually makes the awarding of death penalty a lethal lottery".

His comment came as he referred to one bench of Supreme Court admitting the failure of the court to evolve a uniform sentencing policy in capital cases while another bench on the same day, "in a startling contrast", upholding a death sentence without discussing the 'rarest of rare' principle.

Ganguly also wanted the Law Commission to examine the matter "fully and from all angles".

In a recent exercise, he said, the Commission focussed on "peripheral issues" by discussing whether hanging was the most humane way of carrying out the death sentence. "But the matter needs to be addressed in much greater depth," he wrote.