Of Capital And

Other Punishments

K. Balagopal

Capital Punishment does moral

wrong by imputing to the
offender the full individual
responsibility for the offence,
ignoring the contribution of
circumstances, more particularly
of a social character…It places
the totality of the moral guilt on
the offender, which is never fair,
even in extreme cases such as
Dhananjoy Chatterjee's. Every
one of us is a little guilty of the
cruelty of the Dhananjoys of the
world, and hanging them is one
way of evading that fact.
Of Capital And
Other Punishments
K. Balagopal

Publication No: 27
October 2012
Rs. 30/-
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 Foreword
This is a compilation of articles, petitions and campaign
statements on the Death Penalty in India by K. Balagopal.
These writings contain compelling arguments for the
abolition of Capital Punishment. They do so through
persuasive reasoning about the inherently inhuman nature of
the Death Penalty and through an interrogation of specific
cases: those of two Dalit youth sentenced to death in the
Chilakaluripeta bus burning case in Andhra Pradesh and the
Rajiv Gandhi assassination case. They not only forcefully set
out the philosophical and civilisational basis for the abolition
of Death Penalty but take every argument advanced in
favour of Death Penalty and show the theoretical and factual
fallacies in its reasoning.
Balagopal does not ask us to think about the concept of
Death Penalty and those on death row in the abstract or on
purely compassionate terms. He gives us clear and cogent
reasons, both legal and sociological, why the imposition of
Death Penalty simply does not make sense. For instance, he
explains that in the context of a flawed investigative system
and a not-always-unprejudiced judicial system, giving
individuals the ultimate and irreversible punishment of
death can have brutal consequences. He also asks us to
question our inner urge for collective revenge, which is what
Death Penalty amounts to.
 In Balagopal’s words: ‘There is ample evidence to show
that Death Penalty does not act as a deterrent to capital crime,
because evidence shows no difference in the frequency of
such offences before and after abolition. The real reason why
people argue for retaining Death Penalty is a desire for
retribution, which may be understandable in individuals, but
not defensible when pleaded by a civilised society.’
Human Rights Forum feels this collection would provide
a valuable guide to thinking and action and help further the
abolitionist cause in the country. This compilation is
particularly relevant in these times when there is a growing
clamour for the execution of Afzal Guru and Ajmal Kasab.
We believe they would go some way in helping ongoing
campaigns against the Death Penalty given to Santhan,
Murugan and Perarivalan in the Rajiv Gandhi case, and those
others whose mercy petitions are still pending. It will also
immensely interest those engaged with penology and the
sociology of crime.

1.10.2012

n
 CONTENTS

1. Of Capital And Other Punishments . . . . . . . . . . 7

2. Death Penalty: For An Abolitionist Campaign . . . . 35
3. Death Penalty: Why Not India Join The . . . . . . . . . 45
Global Mainstream?
4. Campaign Statement . . . . . . . . . . . . . . . . . . . . . . . . 49
5. Chilakaluripeta Bus Burning Case : . . . . . . . . . . . . 54
Mercy plea to President
6. On Death Row : NHRC Urged To Intervene . . . . . . 60
7. Do they deserve to be hanged ? . . . . . . . . . . . . . . . . 67
8. Rajiv Gandhi Murder Case : . . . . . . . . . . . . . . . . . . 70
A Plea For Clemency
9. Law Of Confessions And Rajiv Gandhi Case . . . . . 80
10. Capital Punishment Should Go . . . . . . . . . . . . . . . . 83
 Of Capital and Other Punishments 7

Of Capital And
Other Punishments

The debate about Death Penalty is one of the endless

debates of modern times. That it is endless is understandable,
for there is death at both ends of the argument: the one who
is to be killed at the hands of justice has himself killed,
usually from his own sense of justice, or (more commonly),
injustice. And so every argument about the preciousness, the
sacredness or the merely secular right to life can be answered
with equal force from the other end. Small wonder then that
the argument goes in circles. There are those like V.R. Krishna
Iyer who takes the consistent stand that all life is precious
and nobody -- nobody at all -- has the right to take life, bases
his stand as an abolitionist on this argument (among others).
The anti-abolitionist may argue that notwithstanding the
consistency of this position, while the State may well heed its
reason and desist from hanging murderers, citizens are
unlikely to give up killing, and Krishna Iyer’s pleas are not
going to stop them. So may not the State hang a few of them
to deter a few others from killing, and thereby save some
lives -- precious lives -- in the aggregate?
Economic and Political Weekly, 19-9-1998
8 K. Balagopal

Not that Krishna Iyer has no other arguments left, but he

would have to leave the terrain of preciousness of life to
continue the debate. Preciousness (spiritual or secular) of life
is a meaningful moral value, but it is an inadequate ground
for distinguishing the two ends of the argument about
Capital Punishment. The efficacy of execution as a form of
punishment then enters the debate. And so we have
arguments about the purpose, effect or impact of Capital
Punishment as an act of the State. Here the two poles of the
argument are less symmetrical and hence the debate is more
fruitful. That it is still inconclusive is a reflection of the fact
that we would rather not punish anybody at all in the name
of justice, for the cruelty that is inherent in punishment, any
punishment and not just execution, is at odds with the lofty
sense conveyed by the expression Justice, and yet we do
realise that we cannot as yet (perhaps forever) do away with
socially inflicted punishment, even if we feel confident
enough about our civilisational strength to rule out private
revenge as a legitimate response to crime, for then the weak
(whether by virtue of social structure or contingent factors)
would be at the mercy of the strong. Then, where exactly do
we draw the line between just and unjust punishments? How
do we ensure a criterion of punishment that will
simultaneously be just to the one who has committed the
crime (for a signal difference between private revenge and
public justice as a response to crime is that the latter must do
justice to both sides) and yet leave us with the confidence that
by its operation it will ensure that the weak are safe from the
depredations of the strong (which is the only rationale -and a
real one - for the existence of a public justice system)? This is
not a very easy question to answer.
One way out of the dilemma is to reject the claim of
contemporary justice that its punishments are intended to
protect the weak from the strong. One may argue that on the
 Of Capital and Other Punishments 9

contrary the law in contemporary society (in its essence)

actually protects the strong from the weak, and that is what
its norms and the punishment it inflicts upon transgressors of
the norms are aimed at (again, in essence). The primary or
essential function of law and justice, in such a critique, is to
protect property and unequal order from the property-less
and the oppressed, and not the protection of the weak from
the strong, and hence the rationale claimed for the
punishments the law inflicts is spurious. This pulls the rug
from under the feet of the criminal justice system and leaves
no basis for the defence of Death Penalty, or any penalty for
that matter.
There is undoubtedly a certain force to this argument,
whether or not it can be established that the primary or
essential role of law and justice is the protection of the
privileged classes from their victims. That depends on where
one locates the primacy or the essence, and how one
understands those terms. If primacy is understood in the
sense of determination and is deduced from the a priori
theoretical position that the determinate role of the law (as a
moment or element of the social superstructure) is the
protection of property relations, then evidently so long as
property relations are unequal, the law’s essential function
would be the protection of property from the property-less.
And any rationale it claims on the ground of the occasional
protection it offers to the weak from the strong only serves to
legitimate its essentially iniquitous role. If, on the other hand,
primacy or essence is not understood in the sense of
determination but the significance that law and parameters
of justice have (a significance they share with ethical norms
codified in religion and custom) in the historical search for
norms of human relations in a humanist paradigm of history,
which search runs through and is stamped by, but not
negated or rendered meaningless by, the gamut of unequal
10 K. Balagopal

social systems and hierarchical orders that the history has

traversed, then it is doubtful that the protection of privilege
from those that lack privilege can be described as the primary
or essential, let alone determinant, role of law and justice (as
well as ethics) in history as we know it, though it is evidently
one significant role they play. In speaking of such a search, it
must be added as a matter of caution, for the history of this
century dictates caution in inventing or discovering supra-
human ‘agency’, it may still be pointed out that they do not
always target those who are responsible for their iniquitous
situation but rather take it out on society in a random
manner, often injuring equally helpless people. The killers of
Rajiv Gandhi, whatever their reason for taking revenge upon
the former prime minister of India, also killed a lot of other
bystanders. Chalapathi Rao and Vijayavardhana Rao killed
bus passengers who were in no way responsible for their
poverty and unemployment, much less their status as dalits
in Hindu society. Muslim youth who feel they are justifiably
driven to violence by the fast increasing intolerance of Hindu
society take revenge with their bombs on train or bus
passengers at random. Thus the argument against Death
Penalty based on social considerations is less attractive than
it appears at first sight, for there are (usually) helpless victims
at both ends. But it is nevertheless not rendered invalid, for
the two are not symmetrical. There is either compulsive or
thoughtless violence on one side and structured iniquity and
systematic prejudice on the other. What this consideration
tells us is not that we should be heedless about the social
consequences of the retention of the Death Penalty, but rather
that marginalised groups should be politically cautioned
against wayward acts of revenge, and that we should under
no conditions indulge in unthinking glorification of all
‘subaltern’ rebellion, seen in isolation from surrounding
social and moral conditions, within a binary (elite vs.
subaltern) universe.
 Of Capital and Other Punishments 11

But ignoring for the moment these social considerations

and reverting to the question whether the retention of a
rarely imposed Death Penalty serves any purpose at all, it
may be argued that even if it is imposed rarely, the very
presence of the penalty will act as a deterrent. The fear
should be there in the heart of every would-be murderer that
he may - just may - be hanged. That, it will probably be said,
will act as sufficient deterrent. To tell the truth, it will also
afford us the moral satisfaction that retribution is available in
law for the victim. Punishment is perforce discussed these
days in terms of deterrence, both inside the courts and
outside, for we have reached a stage in civilisation where one
does not in polite talk speak of revenge as a legitimate
response to crime. But a stronger motivating factor that beats
in all hearts - judicial as well as lay - is a desire for retribution,
which is a somewhat inoffensive sounding substitute for
plain old revenge. The special judge of the TADA court at
Poonamallee, Chennai, who sentenced the whole lot of the
accused he tried in the Rajiv Gandhi case to death, explained
his decision in the language of deterrence: that hereafter, no
foreign conspirators or terrorists may use Indian soil for their
nefarious conspiracies. Karthikeyan, the CBI chief who
prepared the charge-sheet, is said to have exclaimed to press
persons outside the court that retribution had been done.
Were not the judge and the policemen really saying the same
thing, though the former put it in the reasonable sounding
language of deterrence, for deterrence of crime may be
accepted as one of the rational aims of judicial punishment,
and the other in the more popular language of retribution,
which is revenge with the subject transferred from the victim
to impersonal morality? Legal theories of punishment
describe deterrence and retribution as two distinct aims or
modes of understanding of punishment, but in fact the
argument of deterrence often hides behind it a desire for
revenge, vicarious revenge, which is given a moral tone by
12 K. Balagopal

being described as retribution. We all feel that the one who

has caused suffering must suffer in equal measure and only
then justice is done. This feeling is one of the universals of the
human moral sense and lies behind much thinking about
formal or informal punishment. To the extent that the
individual who has caused the suffering is fully, solely and
consciously responsible (which means, never at all) for that
act, there is nothing very perverse about this common feeling.
But the question is whether public justice - justice done in the
name of society -- must stop with this personalised notion of
justice, or incorporate within its understanding the notion of
reform through compassion and mercy taught by the greatest
teachers (religious or secular) of social ethics, and the
considerations advanced by the more recent analysis of the
social and psychological causation of crime. The desire for
retribution, often hidden behind the reasonable sounding
language of punitive deterrence, is ignorant of both the
compassion of the ancient moral teachers and the modern
sociology of crime.
But since deterrence is the strongest argument for the
retention of stringent punishments, including Capital
Punishment, it will not do to ‘deconstruct’ it to discover a
desire for retribution hidden behind it and then proceed to
refute the reasonableness of retributive justice. The argument
about retribution can come later, but let us deal with
deterrence as such, taking it at face value, notwithstanding
that its cold calculus often hides an irrational passion for
revenge.

Deterrence – A Valid End Of Justice?

Is deterrence of crime a valid end of justice, and therefore
a valid measure of punishment? The moment we pose this
question we are confronted with a certain unease, which
brings back the radical critique of law into our argument. In
 Of Capital and Other Punishments 13

speaking of the legitimacy of deterrence of crime as an end of

the criminal justice system, we seem to be accepting the
legitimacy of the law’s notion of crime in toto. But there is
crime and crime, and not all of it is criminal to every
viewpoint. There is the crime of the landless poor who
trespass on to the land of the rich who have acquired it
(whether lawfully or not) other than by the honest sweat of
the brow. There is the crime of the systematically oppressed
person who breaks out of the bonds of oppression one day to
do away with the oppressor. There is, on the other hand, the
crime of untouchability, rape or dowry killing. And further
there is (on the third hand, shall we say) the crime of a
drunken brawl on a pay day’s evening. Which is the crime
whose deterrence one is talking about? To say that punitive
justice may validly seek to deter rape is at least a sensible
proposition. To say that it may seek to deter neighbours from
coming to blows over the disposition of a boundary wall
makes less sense but still some sense. But to say that it may
seek to deter the poor from encroaching upon a rich man’s
estate even to put up a hut, or a battered wife from breaking
a brick on her husband’s head when he is safely asleep, does
not even seem to make sense as an end of justice.
One may then make out two lists of crimes: one which
one will accept as truly a list of crimes, and with reference to
which one will discuss the question of deterrence, and a
second which one will not accept as crimes at all, let alone
discuss the merits of deterrent action for preventing them.
The difficulty with this strategy lies not only in the obvious
fact that different people, or at least different social groups,
are bound to have different lists, thus rendering the notion of
‘deterrence of crime’ impossible to discuss in concrete terms.
More than this is the difficulty that even within a given
classification, there are bound to be many uncertain cases, too
many to make it a usable classification at all. For instance, let
14 K. Balagopal

us grant that it is not a crime for a landless person to encroach

upon a big estate to put up a hut or to carve out a plot to
cultivate. Is it also not a crime to encroach upon the land of a
two-acre peasant? Or a half-acre peasant? It is not a crime, let
us grant, for a wife subjected to regular beating to poison her
husband’s coffee. But what if it is a lesser matter of marital
discord? And so on. Anyone who tries to break up penal law
into those crimes that one will (from whichever point of
view) definitely accept as crimes, and those that one
definitely will not, will discover that there are too many un-
decidable cases to make it a worthwhile classification.
But there is an even greater problem. Law’s universality
is a necessary precondition for rule of law to be
operationalised. You cannot have a fractured universality for
law and still have a society and State where rule of law
prevails. If each of us is allowed to pick and choose that part
of law which we will accept as legitimate, will abide by, and
expect the State to force everybody else to abide by, and if this
list (apart from its inevitable indefiniteness) changes from
person to person (or at least social group to group) then no
kind of law-bound society or State is possible. Why should
that worry us, it will be asked. That should worry us because
a lawless society and State are most injurious to the weak and
the vulnerable. However iniquitous a given law or legal
system may be, there can be nothing more iniquitous and
injurious for the poor and the weak than a society in which
there is no rule of law at all. (One is not speaking here of
small or ethnically uniform custom-bound communities that
need no law at all). Hence what we require in the interests of
the poor and the weak, is not an attitude that rejects the
legitimacy of the law as such, but one that accepts it, but
without giving up a critical attitude towards the social
content and significance of the statutes and legal practices
that make up the law. (Of course if the law is itself fractured
 Of Capital and Other Punishments 15

by denying equality of all before itself, and minimum respect

for the person of all, then that is no rule of law at all, and
these considerations do not apply to such legal systems). It
may be objected that this caveat that one does not give up a
critical attitude towards the law is intended only to salvage
one’s troubled conscience and serves no purpose when the
legitimacy of the law as such is conceded. That is not the case.
Indeed this critical attitude is precisely where a meaningful
radical engagement is taken up with the criminal justice
system (whose legitimacy as such must be conceded a priori
in the interests of a law-bound society outside which the poor
and the weak would be helpless). The critical attitude would
help the struggle for sensitising the law to its social context
and content, that is, give it a sense of social equality over and
above the legal equality and respect for persons that it must
possess to be called law at all, thereby paving the way for a
progressive democratisation of the law that would
simultaneously make the law less oppressive and leave open
more freedom for positive acts of social transformation.
There could well be situations where such transformation
would require breaking with the law (not individual laws,
whose infringement is common in any effort at
transformation, but law as such) but that would only be a
temporary interregnum and even then an extreme choice
whose ineluctability must be stark enough to compensate the
injury that the total fracture of rule of law does to the people,
especially the weak and the vulnerable. More germane to the
present discussion is that accepting the legitimacy of the
criminal justice system as such, but maintaining an attitude
of criticism towards its social content, in particular which act
is called a crime and how much of a crime, helps one evolve
a useful critique of the punitive aspect of the law, including
the meaning and content of often used expressions such as
deterrence and deterrent punishment.
16 K. Balagopal

Let us now get back to the question: is deterrence of

crime (any crime) a valid end of justice, and therefore a valid
norm of punishment? It is indeed a valid end of justice,
provided it is understood that it is only one of its ends and
not the whole of it, and also provided it is understood that
only a part and not the whole of the burden of deterrence is
upon the criminal justice system. Justice being more than the
prevention of crime, deterrence can only be one of its tasks.
And public justice being justice done in the name of and on
behalf of society, it is society as a whole that carries the
burden of deterring crime, the criminal justice system
carrying only the appropriate part of the burden. And the
role of deterrence as a norm of judicial punishment must be
located within this understanding.
As an aim of punishment, the concept of deterrence is
used in three different senses (even in judicial
pronouncements): (i) the possibility of punishment acts as a
deterrent to crime; (ii) the punishment deters the criminal
from repeating the crime; and (iii) punishment given to one
criminal will deter others from committing the crime. Since
all three meanings are jumbled up and produced as a single
argument in defence of harsh punishment for heinous crimes,
it is necessary to separate them out. Of the three, only (i) is
valid, and that too within limits, but not (ii) or (iii). To
measure punishment by the requirement that the criminal
should not repeat the offence is to assume that circumstances
impelling the crime are of no importance and the criminal's
will is all. It is indeed close to assuming that crime springs
from a permanent part of the person’s character, which will
repeat itself over and again unless deterred by violent
punishment. Even if there is something kinky about the
person’s character, punishment may not be the best way to
ensure that the crime is not repeated. Towards one who has
committed an offence, the proper attitude would be to seek
 Of Capital and Other Punishments 17

methods of helping him grow out of whatever it was that

impelled him to commit the offence. In other words, an
attitude of reform, not only of the person but also of his
circumstances. Reform of person is likely to work better with
crimes born of perversity of outlook than crimes of passion or
want. With crimes of want what needs to be reformed is less
the convict than the conditions of his life. But perhaps a little
of both will be required in all cases, for these causes of crime
are difficult to sort out in pure form. However, reform of
person does not mean merely lecturing or counselling the
person. It would (except in unusual circumstances) include
some punishment which would entail the convict forgoing
something -freedom, comfort, etc - that is part of normal life.
It may also involve some positive activity on his part,
whether the kind of labour that convicts in Indian prisons
undertake or work that has more of the character of service to
other people. Punishment of some sort is therefore integral to
the process of reform of the person, to the extent that it is
reform of the person and not of his circumstances that justice
calls for. And it is this role of punishment - the role of
rendering the convict repentant or at least in a mood to
contemplate himself and his circumstances, and therefore
amenable to the process of correction that should determine
its severity, insofar as we are thinking of punishment vis-a-
vis one who has already committed a proven crime.
Deterrence in the sense of (ii) is an illegitimate notion. Can
Capital Punishment be a possible punishment from this point
of view? Evidently not, for you don’t put anybody in a
repentant or reflecting frame of mind by chopping his head
off. Exceptionally pathological cases are best shifted to what
are popularly called ‘mental hospitals’.
The meaning (iii) given to deterrence should not be
confused with (i). The latter simply says that the statutory
indication of punishment is necessary as a deterrent to crime.
18 K. Balagopal

The former goes well beyond this, to an impermissible extent.

It says X should be given such a punishment that Y will be
deterred from committing that offence in future, whoever
that Y may be and whatever his circumstances. That makes X
responsible for not only the crime he has committed, which is
permissible provided he is not automatically saddled with
the full responsibility minus necessary consideration of the
circumstances in which he authored the crime, but also for
the crimes unknown others may commit in the unknowable
future. The only example the law can legitimately make of
one for others is to show that the punishment that is written
in the statute book will actually be imposed, if and where the
culpability is established, and is not merely decorative. But
the punishment actually awarded should be strictly guided
by correctional considerations relevant to that person, and
not that of setting an ‘example’ to others. When the TADA
special judge at Chennai says that he is sentencing to death
all the 26 persons he has tried so that other such conspirators
may not spill blood on Indian soil in the furtherance of their
anti-national designs, he is using the notion of deterrence in
the impermissible sense of (iii) and not the permissible sense
of (i).
If this is clear, then can Capital Punishment be justified
by the role of deterrence in the sense of (i)? Is Death Penalty
(even if rarely imposed) a necessary deterrent for the crime of
murder (the only common crime for which it is imposed in
India)? We have said earlier that punishment has a role to
play in correction too. The possibility of punishment also acts
as a deterrent. Nobody is deterred by the threat that ‘if you
commit a crime, you will be reformed in jail’. The
punishment part of the reformative effort can act as a
deterrent. The actual punishment given must never be
‘deterrent’ but only as much as is necessary as an
accompaniment of correctional efforts. But the maximum
 Of Capital and Other Punishments 19

possible punishment may be fixed from the point of view of

deterring crime. Is the maximum of death sentence a
necessary deterrent for homicide? Let us forget the empirical
evidence for a while: studies conducted in countries which
have abolished the Death Penalty (56 countries have
statutorily abolished it, and close to 100 have got rid of it for
all practical purposes) show that Death Penalty has little
additional deterrent effect, that is the rate of commission of
crimes punishable with death has not increased significantly
after the abolition. Such a study can be done in India too. The
princely state of Travancore-Cochin had abolished the Death
Penalty for a while before it became part of India. When it
became part of the union in 1947, it got the Indian Penal Code
along with the other blessings of accession. It would be
worthwhile making a comparison of the number of crimes of
murder per capita registered in that part of Kerala during
and after abolition. It is unlikely that such a study will reveal
a trend contrary to what has been the experience elsewhere.
The reason is not that punishment has no relation to crime (in
which case it would be no deterrent at all) but rather that the
two are not so simply or linearly related - like the two sides
of a balance - that when the one goes up the other goes down
to the same extent. Between crime and punishment there lies
the whole sphere of human existence, social, economic,
political, cultural and the purely individual.
But such studies apart, let us look at the logic of this
argument that the provision of Death Penalty can alone be an
adequate deterrent for murderers. The logic appears to be
that the threat: ‘if you take a life, then you will have to lose
yours’ will alone work effectively, and it should be present in
the law, if only as a rare option. That is to say, like suffering
for suffering caused (if only in the rarest of rare cases) is
necessary as a deterrent. But why does this logic apply only
to homicide? Why not to all crimes? If a hand is chopped off,
20 K. Balagopal

the court does not order the chopping off of the convict’s
hands, but only a few years in jail. There will never be like
suffering because even after a few years in jail, the convict
will be able bodied whereas the victim will be without a hand
all his life. Yet nobody would argue that hand-chopping for
hand-chopping (at least in the rarest of rare cases) would
alone be an adequate deterrent. Or arson for arson,
destruction of property for destruction of property, etc. (And
what would be an effective deterrent for rape in this logic?
Chopping off the penis?) On the contrary, any such
suggestion would undoubtedly produce protests about the
medieval logic of ‘eye for eye and tooth for tooth’ and would
bring forth outraged comparisons with Saudi Arabia, the
Taliban’s Afghanistan and all those countries ruled by
mullahs than which we all believe we are infinitely more
civilised. But why is this logic of like suffering for suffering
caused preferred in the case of the death sentence alone?
The Death Penalty excepted, the modern Indian penal
law has a uniform punishment for all crimes (excepting very
petty ones, for which a monetary fine may suffice), which is
supposed to simultaneously act as both deterrent and
corrective. The convict is deprived of freedom and comfort
by being jailed for a certain period. The prospect of such
deprivation is supposed to act as a deterrent, as well as
keeping society out of his arms’ reach for a while, and the fact
of deprivation is expected to engender in the convict a state
of remorse that may act as a corrective, though very little is
done positively for correctional purposes by our penal
system. There is no need to break with this logic and invoke
the deterrence of eye for an eye as an exceptional punishment
for murder. What is needed, on the contrary, is to further
humanise this logic of incarceration as deterrent as well as
corrective. That is to think of less in human deterrence and
more positive correction. People who have never seen the
 Of Capital and Other Punishments 21

insides of an Indian jail may feel that ‘inhuman’ is too harsh

a word, considering that Indian prisoners these days (at least
in the less benighted States) get three meals a day, with meat
once a week and opportunity to play outdoor games and
watch TV (usually once or twice a week). Our prisons are
nevertheless less than human, firstly because the quality of
the food given is usually very poor, and overcrowding (all
Indian jails are overcrowded to the tune of 50 to 100 per cent
of their capacity) makes the jails extremely unhygienic. But
that apart, the prisoners are deliberately made to feel less
than human, as part of the tactics of prison discipline. All
wielders of authority know that the simplest way to control
their subjects is to structure their relation with authority in
such a way that they are systematically made to feel less than
human. Beating at the slightest excuse is one way to achieve
this. But even the refusal to have a dialogue with the
prisoners on even the most inoffensive matters, and instead
converting all situations of possible dialogue into fearful
supplication on one side and unreasoning refusal or
inattention on the other, compounded by humiliating abuse
and physical violence at the slightest provocation, creates an
ambience of a circus ring rather than a place where human
beings are incarcerated for correctional purposes.
This is not accidental. I am not speaking here of any
functional need of the ruling classes to create subhuman
prison conditions as a strategy of stable governance. That
degree of rationality is difficult to demonstrate though easy
to declaim. But sub-humanity of prison conditions is
systematic and not accidental in a different sense. Most
policemen and prison officials (and, I dare say, many judges
too) believe that the prison sentences provided by the penal
law are by themselves not sufficiently efficacious as a
deterrent of crime, and must be supplemented by an
inhuman treatment that is no where written in the law. This
22 K. Balagopal

feeling is linked to the lowly perception that minions of the

State have for crime and criminals who mostly come from the
lowest strata of the caste system. That is to say, the humanism
of correctional incarceration may be all right for civilised
people like you and me but not for the likes of the castes and
communities that are found committing crimes most often.
(This remark is not imagined. It is frequently expressed by
police and prison officials, and quite frequently lies behind
the attitudes of officers of the courts).
The point of saying all this is that there should be better
and less inhuman ways of ensuring a deterrent punishment
than locking up convicts in prisons controlled by jail officers
who are all convinced in the heart of hearts that mere
incarceration in a prison is no deterrence to the criminal,
especially the criminal who comes from the wretched dregs
of Hindu society. Nor do these prison officers have any
motivation for correctional work. A correctional institution
needs some degree of idealism, which is singularly absent
from the mental make-up of the jail officers. But they are not
alone to blame. The Indian prison as an institution has no
correctional system as such, though it teaches the convicts
some manual trade and provides them with what passes for
a library to read from. More often than not, a prisoner comes
out of jail at the end of his term a more hardened and less
useful human being than he was when he went in. And that
serves neither the purpose of deterrence nor reform. What
the Indian prisons need today is a less harsh regime of
imprisonment and a more positive correctional approach.
Calls for imposition or retention of harsh punishment,
including Capital Punishment, have no place in this.
Let us move on now to a different plane of argument. I
will try to argue that imperfect societies have no right to
impose harsh punishments and that (as indicated earlier)
 Of Capital and Other Punishments 23

punishment alone cannot be society’s response to crime. The

latter is very important today because not only in India but
all over the world, the rise of political terrorism and other
forms of organised law-breaking is sought to be made a
justification for harsh punitive regimes. Imperfection has
long been one of the abolitionist arguments, but that is
imperfection of judicial appreciation of evidence, both
because of human error and the social prejudices or world
view held by the judge. Capital Punishment has finality to it
that would be justified, other things apart, only by a perfect
investigation and perfection in the judicial act of weighing
the evidence. Neither is humanly possible. We remember
Kehar Singh, the alleged conspirator in Indira Gandhi’s
murder, about whom all that was proved was that he
conferred in secrecy with her assassins, but who was
nevertheless found fit to hang. It may well be that judges
from the Court of Sessions to the Supreme Court who
believed then that it was just to hang him will have second
thoughts some time later, for the judgement has been
criticised by even otherwise not particularly radical people,
but nobody can give back Kehar Singh his life. (There is a
more recent case from England. Derek Bentley, hanged 45
years ago for abetment of a policemen’s killing, has been now
pronounced wrongly executed. The profusion of apologies
rendered to his family will not resurrect the dead man).
A different dimension of imperfection arises from social
and political passions and prejudices that judges are as much
prone to as anybody else. Not that they never make any effort
to achieve objectivity. One may grant that much to judicial
discipline, but there is no guarantee that they will always
succeed, which guarantee is mandated by the finality of
Capital Punishment, especially in times of social crisis and
turbulence when even the need to make the effort may not be
urgently felt. But it is precisely in such times that both
24 K. Balagopal

judicial and extra-judicial executions are likely to be more

frequent, thereby leaving the socially and politically
abnormal groups and individuals all the more vulnerable to
execution by prejudice. An instance is the rhetoric of the
Chennai special judge’s reasoning in the Rajiv Gandhi
murder case, in which all the 26 conspirators and abettors
(only the conspirators and abettors fell to the judge’s lot, for
the actual perpetrators of the offence had all died before the
law could catch them) were sentenced to death. Half of them
are Sri Lankan Tamils and the other half their local
collaborators, and so the judge could indulge in patriotic
anger about foreign terrorists executing their nefarious
design on Indian soil. The LTTE connection being a fatal
political sin in the current political mood - so much so that it
could even bring down a government at the Centre - it is not
surprising that the rhetoric should end with a wholesale
death sentence. The judgment has been described by what
the Press calls ‘eminent jurists’ as extraordinary, but suitable
for an extraordinary case. Their memory is unfortunately not
able to recall that even assuming that the murder of an
eminent political personality is deemed different from that of
a person in the street (Article 14 of the Constitution says
otherwise), there was another Gandhi, certainly a more
eminent one, who was murdered 50 years ago, in whose case
only the perpetrator was hanged and not the abettor. It is in
the case of the two later Gandhis, mother and son, that
abettors were found fit to be hanged. Judicial perception of
culpability is evidently quite sensitive to changing political
conditions. Such being the case, can the judiciary be trusted
with the power to order execution of people? Quite some
time back, the US Supreme Court had ruled that Death
Penalty is discriminatory because it puts in human hands the
arbitrary power of deciding which crime is worthy of Capital
Punishment. That the US law-makers found a way of getting
around this judgment, and that country continues to be one
 Of Capital and Other Punishments 25

of the staunchest defenders of Capital Punishment, does not

rob this observation of its reason. Especially in a country like
India where extreme social stratification and increasing
turmoil are likely to sharply affect the ideas and opinions of
people, including judicial officers, putting in human hands
the discretion to take life can be quite dangerous. It is
extraordinary that, on the contrary, people find it possible to
argue that precisely because of the social turmoil that defines
contemporary India, Capital Punishment is needed as a
deterrent, as if the turmoil does not affect judicial minds to
the detriment of their impartiality, and as if the harm that can
do to those on the margin of society is a matter of no
consideration. Conflict and. turmoil apart, the very deep
stratification of Indian society makes even-handed
dispensation of justice a problematic thing in the best of
times. All those familiar with the criminal justice system are
aware of the extreme hostility exhibited by the system -
policemen, judges and lawyers too - towards thieves, robbers
and dacoits, not merely because of the respect for property
that one may expect to find in the judicial systems of all
countries, but also (perhaps more) because the perpetrators
of such crime (in particular, dacoit gangs) come from castes
and communities that are held in loathing and contempt,
often even more than the untouchable communities, by caste
Hindu society.
But these are arguments concerning the imperfection of
judicial decision-making. Over and above that is the
imperfection of society’s, any society’s, moral order. Let us
turn to that now and argue the point that imperfect societies
(in a specified sense) have no right to claim the privilege of
harsh punishments. This may appear obvious, but it is
necessary to argue carefully from first principles, for
otherwise it may end up as mere rhetoric. Let us begin with
the question: Can a public justice system take a person’s life
26 K. Balagopal

in the name of punishment, and still be said to have done

justice? The question is not: is it at all just to take life?
Notwithstanding the valuable caution of the fundamentalists
of non-violence, that we who have no capacity to create life
have no right to take it, we can all nevertheless imagine
situations of extreme oppression wherein the taking of the
life of the oppressor cannot but be called a just act, which is
of course no argument for a cavalier attitude towards all
violence claimed to be perpetrated in the name of equity. Our
question is more closely circumscribed: is it permissible for
the institution of public justice to kill as a measure of
punishment for crime, any crime?
Let us try to answer this question. What exactly does a
court of justice do when it awards punishment to an
offender? In a civil offence, justice recompenses the wronged
person. That is clear. It hands back the misappropriated
property, it restores the breached contract, or it computes and
awards monetary compensation when such restoration is not
possible. But that is not what it does in a criminal offence.
Whether it is punishing as a deterrent measure, or as
retribution, or as a measure of reform, it is doing something
other than recompense the victim, except to the extent that
punishment aimed at retribution gives some mental
satisfaction to the victim or the victim’s survivors. This
satisfaction is frequently quoted by judges, though in
impersonal terms, such as the ‘moral anger or outrage of
society’ that needs to be answered or assuaged by the
punishment awarded. This is often the argument used by
judges to justify the award of harsh punishment when they
sense that the usual argument of deterrence is not enough to
justify the severity of the punishment they have chosen to
impose.
Strictly speaking, this language should have no place in
judicial thinking, though quite erudite judges continue to
 Of Capital and Other Punishments 27

employ it, for if the desire for revenge that the victim of a
criminal offence feels and with which society identifies or
empathises — so that judges find it possible to say ‘we have
to answer society’s moral outrage’ instead of ‘we have to
satisfy the victim's vengeance’ -- can be a rational criterion of
judicial punishment, then the judiciary is nothing but a
seemingly public institution for serving private revenge, a
seemingly dispassionate forum for satisfying private passion.
But private revenge is explicitly ruled out by modern law as
an answer to crime. Even the most morally justified revenge
is disallowed. Can it then be smuggled in through the back
door, dressed up in black robes, speaking the language of
society’s moral conscience, and set up as a legitimate norm of
punishment? Is it that the law’s aversion to private revenge is
only that it is private and not that it is revenge?
That is not the case. Human thinking about crime has
always tended to see it, at least in one aspect, not as an injury
to the person affected by the crime, but as an act upsetting
society’s moral order, that is the norms that define the
contours of legitimate behaviour. Modern law has explicitly
accepted this as the central characteristic of crime. A crime,
whether it is theft, rape or murder, is primarily an offence
against society, and only secondarily against its victim.
Whatever the defects of this notion (one defect frequently
pointed out is that it transfers the victim’s ‘agency’ as seeker
of justice to the State acting on behalf of society, but that is not
always avoidable nor necessarily bad), and whatever
objection one has to society’s moral order and its norms that
are thereby shown as universal and legitimised (this
objection too is well taken, but only up to a point, unless one
can show that there is no element of universality at all in the
given society’s normative order), this is a useful perspective,
for it allows us to think in terms that go beyond injury and
revenge, prevention and punitive violence. If crime is that
28 K. Balagopal

which upsets society’s moral order, then punishment should

be guided by the consideration of setting right the normative
order disrupted. And the giving of the punishment is
society’s act, even if it is a particular institution of society that
tries and punishes offences on behalf of society.
That we are speaking of the moral order and not just the
legal order needs emphasis. Merely saying that a crime
upsets society’s legal order offers neither a justification nor a
norm of punishment. If a law is violated, then so what? What
justification or criterion of punishment do you derive from
that? None, evidently. But behind the legal order lies a
normative order, a universe of values, and that can offer a
justification as well as norms of punishment, right or wrong,
acceptable or unacceptable. The ‘ought’ of the law is merely
the policeman’s dictate, but behind it lies an ‘ought’ of values
which can be weighed as a moral code to decide what may
and what may not society do when that normative order is
violated. For if the normative order seeks legitimacy to
impose itself by sovereign force on the ground that it is
morally desirable, then restoring it back to shape is the only
legitimate response to its disruption, that is, to any act of
crime. And the principles that guide the means by which the
restoration is effected must be - and must be declared to be -
a part of that normative order, and not something external to
and certainly not antithetical to the values of that order.
Justification of judicial punishment and the norms thereof
must flow from this. Just as judicial response to civil offences
is to set right the wrong done to the individual, judicial
response to crime then is to merely set right the wrong done
to society and its moral order.
It is perhaps necessary to clarify one point here. The
moral order that we have set up as the object that the criminal
justice system protects is not identical with the dominant
 Of Capital and Other Punishments 29

system of moral values prevalent in that society. It shares

something with it but is not necessarily identical with it. It is
the system of norms revealed by the law, which lays down
the contours of legitimate behaviour as understood by the
law. The actual social reality, that is to say the socio-economic
order, as well as the moral world view of that society, which
again consists of at least two elements, one, the system of
values widely held to be valid or desirable by (different social
groups within) society, and two, the system of values that
supposedly represent the higher truth by virtue of the
dominant religious or political world view of that society,
may well differ from the legal norms of legitimate behaviour.
Take caste, for instance. Caste is a living part of actual Indian
social reality. In terms of its moral standing, Hindu society
views it from a partially secularised but still essentially
brahminical position. In terms of higher morality, it abhors
the more extreme practices of caste, but the attitude towards
caste as a whole has been vacillating between a secular world
view and one that sees some hidden principle of a righteous
social order in it. The legal view of caste is, however,
uncompromisingly secular. Untouchability and related caste-
based discriminating practices are very serious offences in
the eyes of the law, the only discrimination legally allowed
being the protective discrimination of reservations. Much the
same can be said about gender. The normative order of the
law is much more secular (though not entirely so, as in the
case of caste) than social morality, and certainly very much
more so than actual social reality. Or take the case of violence.
Violence is very much part of our lives. Morally, it is not
always regarded as wrong, especially when it is retributive in
character. Though, at the level of higher morality, all of us are
supposed to believe in non-violence as a superior virtue. The
law, for its part, abhors all violence except only that which is
a direct act of defence of person or property, which is much
narrower than the retributive violence sanctioned by popular
30 K. Balagopal

morality. The situation is somewhat reversed when it comes

to property.
Our economic class structure is highly unequal, and
popular morality is a mixture of envious acceptance (even
abject reverence), and resentment (even hatred) of the fact.
Higher morality affects an ascetic contempt for property. The
law, however, is a ruthless protector of all property rights.
One can go on. But the point is that there is a clear normative
order underlying the law, whose protection is what the law
aims at. The normative order is not just the set of rules of
behaviour one deduces from the law as present in the statute
book. It is a moral order, a civilisational perspective of human
social and material relations that the law encodes. Legitimacy
of the law derives from this normative order. It is of course
contested and not universal in the sense of being beyond
argument, though there may well be elements of it that have
achieved universal acceptance. But it is not spurious merely
because the egalitarian or rights-giving parts of it are
(possibly) at variance with the actual social order, or the
dominant aspects thereof, (Of course, if the whole of the law
were only a justification of inequality and injustice, then there
would be no legitimacy at all but that is not the kind of law
we are talking about). This view is at variance with one
common radical view of law and legal justice, that where
they appear to deservingly claim legitimacy for their
suppressive force, they are only acting as a legitimating
ideology for (or enacting a hegemonic practice of) the
unequal social order. Such a view, as said earlier, leaves no
space for any meaningful discussion of norms of
punishment, and more importantly, it does not constitute an
adequate understanding of the history of normative
standards (whether of the law or morality) which reflects a
ceaseless human search for norms of social behaviour, a
search that runs through the ups and downs of exploitative
 Of Capital and Other Punishments 31

and oppressive social systems and revolutions and

rebellions, constantly accumulating new values, discarding
or revising old ones, generating a corpus that can at any point
of time be evaluated from the viewpoint of equality and
freedom, and which has significance for actual social struggle
for equality and freedom, and also for the possible shape of
the institutional mechanisms that may help structure an
egalitarian society.
If, then, it is accepted that what a public justice system
does when it punishes criminal offences is to act on behalf of
society to correct the harm done by the offence to society’s
moral order (the normative order of its law, to be precise),
then it is possible to think of how much punitive violence
justice may legitimately allow. Obviously, it cannot be
allowed any greater self-righteousness in responding to
crime than the righteousness of its normative order. In other
words, how harsh the law may be on offenders must be
limited by how just its normative order is. No society known
to us is so perfect that it can demand the right of harsh
punishments, such as the Capital Punishment, nor will there
ever be. It may be said that the criterion of ‘justness’ of the
moral order is vague and subjective. But since inequality -- of
status, opportunity, endowment, respect, freedom,
consideration for individual peculiarities, etc. - is what
alienates people from the social order in which they live, and
makes them prone to violating its norms, the apt criterion for
justness here is the absence (relatively speaking, of course) of
such inequality.
It will be immediately perceived that there is a trap in
this otherwise reasonable argument: it seems to imply that
the more just the normative order of a society, the more right
it has to impose harsh punishments, and therefore that a
perfect society may execute every criminal. This is, of course,
32 K. Balagopal

the logic with which communist-ruled countries (irrespective

of whether they have actually been perfectly just societies)
have always justified their illiberal justice systems. One
answer to this perverse interpretation is that the argument is
not meant to be used in the converse direction. It is like the
dictum that only those who have never sinned should hasten
to throw stones at sinners, which does not mean that the less
one has sinned, the more stones one may throw. More
positively, the norms of punishment are not something
external to the normative order which the punishment seeks
to protect. They are part of it. Therefore a society which is
otherwise perfect but imposes harsh punishment on
transgressors of its norms would not meet the criterion of a
just society, for a correctional attitude as against a retributive
or merely deterrent attitude of judicial punishment is part of
the justness -- in the sense of equal consideration for the
normal and the aberrant -- of the normative order. But that is
not all. We have said that punishment as given by a public
justice system -- as distinguished from private revenge -- is
aimed at restoration of the moral order of society violated or
disrupted by the offence. But can judicial punishment do all
of it? Or is it properly to be seen as only one of the
mechanisms of societal response to the disruption of its
moral order? Most of the arguments in defence of harsh
punishments, in particular the Capital Punishment, assume
that judicial punishment is the total answer to crime. But if
judicial punishment is what we have identified it to be, it can
never be the total answer to crime, and therefore it need
never be and can never be as harsh as the crime, as cruel as
the criminal. The usual argument (a very popular argument
in defence of Capital Punishment) that there is nothing
wrong if the judicial response to crime is cruel when the
criminal is cruel, places the offender and justice on par. This
is wrong for two reasons. One is that the individual is seeking
some private gain or retribution whereas justice is acting on
 Of Capital and Other Punishments 33

behalf of society to restore, to shape the normative order

disrupted in that process by the offender. It certainly does not
seek retribution, and deterrence, within limits, is only one of
the goals aimed by it in its job; and secondly, the criminal
justice system is not the whole of the answer to crime. Society
must act through its various wings to effect the restoration of
the order disrupted, of which the institution of punitive
justice is only one (though a necessary and legitimate one).
Confronted with an act of crime, society should consider that
it could have been occasioned by three possibilities: a lack in
the normative order, a mismatch between the normative
order and the actual social conditions or possible human
associability, or a fault of the offender himself. Indeed,
usually the three are not easy to separate. Societal response, a
part of which is structured through the criminal justice
system, must address all the three possible facets of crime. It
can never put all the blame upon the individual’s wilful and
perverse disobedience of the law and reduce the whole of
crime to the domain of criminal justice, and answer cruelty
with cruelty, violence with violence. It is this logic that results
in the fervent arguments heard whenever the criminal justice
system fails to deter crime, that its institutions and norms
should be made more stringent, given more ‘teeth’ (a rather
telling piece of canine imagery), etc. On the contrary, societal
response, while including within its ambit a corrective and
(within limits) deterrent penal system, should concentrate at
least as much on a self-critical look at itself, its actual
condition, its normative order, and the position of human
individuals and groups within either of them. Capital
Punishment, or any kind of harsh punishment, not to speak
of tolerance of extra-judicial punishments inflicted by the
police or armed forces, are ruled out because they put
excessive blame on the individual’s -- or the dissident group’s
-- perverse rejection of the law, and moreover reduce criminal
justice to an answer in kind.
34 K. Balagopal

We live in times of severe social turmoil, crisis and the

ascendance of the extremely illiberal politics of the Hindu
fanatics. The crisis and the turmoil provide them with
enough scope to legislate their illiberal attitudes with
unreflecting popular sanction. Most people feel
understandably disturbed by the mindless bombings of
trains and buses in Coimbatore or Thrissur and the equally
mindless killing of Hindus in Doda and Poonch; by the
stories of rape in Rajasthan and gangsterism in Bihar or Uttar
Pradesh. This mood has already got the Hindutva forces
going: they have blackmailed Karunanidhi (not that he is an
angel but he had no need to be a devil) into enacting an anti-
terrorist law for the State least affected by violence, and
Advani promises agitated protestors about rapes in
Rajasthan that this country will soon hang rapists. He advises
the naxalite-affected States of south-central India to look
upon the People’s War as purely a problem of crime, and
draft repressive laws to the dictation of the police. He will no
doubt be saying the same thing to Farooq Abdullah, who is in
any case ready to crawl when he is only asked to curtsy. As
this mood catches on -- the communal fanaticism and the
general illiberality and inhumanity of the Hindu fanatics is a
mood that goes well beyond the votes they get -- we are going
to find courts silently handing out more and more harsh
punishments, bending backward to look at evidence from the
policeman’s point of view (one comment frequently made
about the Rajiv Gandhi case judgment is that it is the charge-
sheet suitably rewritten to look like a judgment), and sending
more and more people to the hangman. At the end what we
are going to have is not a solution to any of the social or
political problems underlying this degeneration but only a
more harsh and inhuman criminal justice system. Today’s
debate about the Capital Punishment must be seen in this
context.

n
 Of Capital and Other Punishments 35

Death Penalty:
For An Abolitionist Campaign

F or a long time now, it has been customary to say that the

trend in the world in the matter of Death Penalty is towards
abolition rather than retention. Statistics of progressive
augmentation in the ranks of the abolitionists among the
member states of the United Nations do justify the optimism.
Are we, however, in for a reversal in the matter?
India, at any rate, is perceptibly moving in the direction
of a greater rather than lesser use of the Death Penalty. It was
never in any case in sympathy with the abolitionists’ cause in
the U.N and its human rights bodies. In the matter of the
Death Penalty, the Indian attitude at the U.N can be
accurately described as shame-faced retentionism1. It was not
an aggressive retentionist like for instance, the U.S., but was
nevertheless always on the side of the retentionist States.
India’s explanation for its stand has been that a poor country
with serious socio-economic problems cannot imitate the
welfare States of Europe in the matter of penal law. Many
people in our country regard this as a legitimate answer, not
knowing that the earliest and most dedicated abolitionist
Foreword to a volume on Capital Punishment published in Tamil.
Date of publication not known.
36 K. Balagopal

States were not the European States which have a rather high
standard of living and are much less troubled by crime than
countries such as India, but the South and Central American
countries, whose societies are beset with all the problems that
are familiar to us.
But in truth India appears to have avoided any active
participation in the debate about Death Penalty in the U.N
bodies, going by what one can glean from secondary records.
With our claim to a very ancient and wise civilisation, our
rulers have behaved as though they were telling the UN that
we are in no need of lectures in civilisational values from
Uruguay and Columbia. But at every stage in the voting, our
representatives joined voices with the retentionists,
defending the argument that the Death Penalty is a matter to
be taken care of by the penal laws of the respective countries,
and efforts by the U.N to pressurise countries into abolishing
it are unwarranted. One does not know whether India ever
went to the extent of declaring, as did the United States, that
Death Penalty is not a human rights issue, but a matter
concerning the criminal justice system of the respective
countries. But there is little doubt that India’s sympathies lay
with such arguments.
This was in the past. Today, official India should be
happier. The atmosphere in the country -- both inside the
Courts and outside -- is more conducive to arguments in
favour of retaining rather than abolishing Death Penalty.
Perhaps soon India can cease to be shame-faced and become
a brazen defender of Death Penalty. As in all occasions when
popular prejudice takes the place of facts and reason, the
State is in a happy position where it can take an anti-human
rights stand and also be popular. The prejudice in question is
that the country is witnessing an upsurge of crime because of
its lax criminal justice system. Nobody has bothered to
 Of Capital and Other Punishments 37

support this prejudice with the careful analysis it deserves,

but the belief is nevertheless widely held. V.S. Malimath2
(retired Chief Justice of two High Courts and retired member
of the National Human Rights Commission) has adorned this
belief with the sanction of judicial (retired, to be sure)
approval, and what more can prejudice want?
The way the Supreme Court converted life imprisonment
into Death Penalty in the ‘Veerappan case’3 is symptomatic of
the trend. There is of course nothing in the law or common
sense which says that a higher court cannot take a more harsh
view of a crime than the trial court. But the general
experience has been that trial courts some times get carried
away by the emotional overtones of a case or popular
perceptions of right and wrong and impose severe
punishment. It is usually left to the higher courts to take a
dispassionate view of the matter suitable to the notion of
even-handed dispensation of justice.
But in the ‘Veerappan case’ it has been the turn of the
Supreme Court to play the role that trial courts normally do.
From the time of the kidnap episode of the Kannada film star
Raj Kumar, what has dominated the mind of the Supreme
Court is the anguish that small groups of outlaws are
dictating terms to the legitimate State, the fount of law and
lawful authority. The inability of the administration in
Karnataka and Tamil Nadu to put an end to this situation has
rankled with the Supreme Court. It even went out of its way,
ignoring the normal perimeter of Constitutional propriety, to
ask the two governments to quit if they could not arrest
Veerappan. It was the turn of the normally impetuous
politicians to maintain a dignified silence.
The anguish is understandable, up to a point. Society no
doubt needs a recognisable source of law and lawful
authority, for a situation where any one can pick up a gun
and dictate terms is not conducive to public welfare. Only the
38 K. Balagopal

romantic radicalism popular with a certain type of

intellectual can think otherwise. But this is at a very general
level. Any concrete situation would require a more balanced
analysis. First and foremost, it needs to be understood that
legitimacy of the law does not spring from mere assertion of
the sovereign power of its maker. It has got to be won in the
minds of the people. To the extent that the State fails to do so,
it will have to contend with every Veerappan who comes
along. For the common masses, the legitimacy of lawful
authority is not a truth conceived theoretically. It has to mean
something practical to them to become true. They must not
feel it as an imposition, but as a beneficent instrument, not
theoretically but in their day to day life.

I am aware that such an argument will be resented by

many people who will see it as a defense of brigands and
purported Robin Hoods. But it is not a question of defending
or opposing them. It is a question of the terms within which
society may persuade the people not to collude, sympathise
or even just put up with them. That will be possible not on
the plane of an abstract distinction of legitimate vs.
illegitimate, but something more practical. Otherwise the
system will only do more and more violence to the people in
the name of defending the legitimate against the illegitimate,
at a level of abstraction where it ceases to be a real distinction
and becomes a fetish. It is unfortunate that in the face of a
rising trend in gun-wielding groups dictating terms in
various localities, in the name of revolution or liberation or
mere illegal trade in forest produce, influential sections of
public opinion, and the courts in particular, are exhibiting a
tendency to rally around an abstractly conceived legitimacy
of the law and lawful authority. They are unmindful that in
the process they are causing greater injury to the common
citizens of the country, and to basic principles of humane
 Of Capital and Other Punishments 39

governance, than to the hard-core terrorists and gangsters

that their ire is apparently directed against.
The arguments for a harsher criminal justice system, in
particular for more severe punishments, stem from this
tendency. All that one can say in its favour is that it is
unfortunately not without some popular sanction. The
common human sense of insecurity is at any time a force that
would drive a lot of ordinary people to this view. But the
establishment of authority over large areas of society by gun-
wielding groups of all kinds in recent times has increased this
ever-present sense of insecurity. Some of the groups (Ranvir
Sena4 of Bihar, for instance) are manifestly in the service of
the elite, and some are plain predators, even if they are of
plebian origin. One can expect from them no sensitivity to the
larger consequences of their practice. But even those groups
that have a proclaimed larger purpose as the goal of their
armed activity are so cocooned in their ideologies and
strategies that they exhibit little concern for what is
happening to humane principles of governance in the course
of the clash between them and the agencies of the State.
But perhaps the armed groups and the insecurity they
generate are merely providing an excuse for the elite the
world over to permit the surfacing of illiberal feelings that lay
hidden under the skin. Hidden all these days for fear of being
branded inhuman, for till recently it was thought necessary to
heed such criticism.
For the times have definitely changed, and we are living
in a new era. There is a tendency to characterise this era of
history in terms of 11 Sept 2001, or simply ‘9/11’ as the
Americans say. It is already customary to say that the world
will never be the same after that date. A radical thinker like
Noam Chomsky too agrees, though for a reason that the
Americans will not like. But while that date is no doubt an
40 K. Balagopal

important one, to make it a bench-mark of the new times is to

shift the onus for the changes on to the wrong party. That
date is merely a significant event in the period that started
with the ascendancy of crass neo-liberalism in world politics
and economics. The current era started when capitalist
civilisation, which learnt a lot of lessons in the last couple of
centuries, decided that the collapse of the Soviet experiment
entitled it to forget all of them, and get back to the
fundamentals of its brutal logic. This has had an impact on
not only the preferred economic policies, but also the
seemingly consensual understanding of civil rights within
the liberal tradition, and the element of decency introduced
into international relations by the creation of the United
Nations and allied structures. All of them are in a shambles
now, ridiculed, devalued, derided. So is international human
rights law, which the US always regarded with a certain
amount of contempt. But now, thanks to the US being de
facto the world government, it is no more ‘international law’
but a mere aspiration of the toothless and the boneless.
International relations has been reduced to an arrangement
for hunting down rogue States and organisations so
proclaimed by the US, and international law turns around the
doctrines of pre-emptive assault and preventive war. Human
rights, in this changed scenario, is sometimes a joke, and
sometimes a serviceable slogan in the pursuit of war.
It is in this background that we are looking at the future
of Death Penalty – in the world, and in our country. In terms
of logic and reason there is no answer to the abolitionist
arguments, or in general to the argument for a reworking of
penal law away from notions of retribution. There is ample
evidence to show that Death Penalty does not act as a
deterrent to capital crime, because evidence shows no
difference in the frequency of such offences before and after
abolition. The real reason why people argue for retaining
 Of Capital and Other Punishments 41

Death Penalty is a desire for retribution, which may be

understandable in individuals, but not defensible when
pleaded by a civilised society. The impossibility of correcting
mistaken judgement of guilt in case of imposition of the
ultimate punishment is another consideration to which the
retentionists have no answer. Capital Punishment does moral
wrong by imputing to the offender the full individual
responsibility for the offence, ignoring the contribution of
circumstances, more particularly of a social character. To
these and related arguments, there is no reasonable answer.
But we do not live in the realm of logic and reason, but in
that of power and resistance. And power desires the
opportunity to impose extreme retribution on its subjects.
The resistance built over the decades into the institutions of
society, including the law and legal institutions, ought to
have been a great asset to day-to-day resistance to the
arbitrary demands of power. But that has been the first
casualty of the current times. Human rights principles built
into the law and legal culture are ceding way to inhuman
assumptions about human affairs under the neo-liberal
assault on governance. That sets the context for the
ideological devaluation of any humanist understanding of
crime and punishment.
In the near future all that we can reasonably expect in the
matter of the Death Penalty is therefore an increase in the
frequency with which the Courts impose the extreme
punishment, and the indifference with which the executive
will reject mercy petitions. Perhaps they will also add a few
more offences to the list of the crimes for which Death
Penalty can be imposed -- rape is one offence for which the
change has been canvassed by none less than the Deputy
Prime Minister of India.5

The only way to fight this is to fight unitedly. We have

seen a popular agitation against Death Penalty awarded to
42 K. Balagopal

two dalit would-be bus robbers of Andhra Pradesh. The main

participants in the agitation were dalit associations. Against
the death penalty awarded to the accused in the Rajiv Gandhi
assassination case, it is Tamil nationalist groups that are the
main protestors. Now we have death sentence confirmed in a
Jharkhand case pertaining to naxalites. Groups sympathetic
to the naxalites have started an agitation for commutation of
the sentence. And willy-nilly the campaigns have made it
seem as if the Death Penalty in each of those cases was
condemnable because that group/community/cause is
somehow morally privileged. This is no way to organise the
agitation against Death Penalty. I am not saying that the
specific nature of the case and its social/political background
is, or ought to be, irrelevant for the campaign. No, the
abstract principle that Death Penalty is a violation of human
rights will make sense only through individual instances of
its imposition. But that is different from saying that
individualisation of the protest can be an efficacious way of
fighting for abolition of Death Penalty. It can never be. If we
wish the campaign to be efficacious, we must overcome the
temptation to stick to the cosy company of the politically like-
minded.
There is, as they say, no time like the present. Since more
than one campaign on individual cases is already underway,
it is time to get together with a single slogan: do away with
Death Penalty in Indian law, for it has neither reason nor
expediency to commend it. Strategically, the movement can
rely on a convenient instrument of international law: the
Second Optional protocol to the International Covenant on
Civil and Political Rights (ICCPR). The campaign should
demand that India sign the Protocol, which would commit it
 Of Capital and Other Punishments 43

to immediate stay of all executions, and abolition of the

Death Penalty as a matter of principle.

The Second Optional Protocol was adopted by the

General Assembly of the United Nations on 29 Dec 1989. It
commits the signatories to declare an immediate moratorium
on executions and to legally ban the Death Penalty in due
course. Being optional, it does not bind all members of the
UN, but only those who sign it. But nevertheless India was
not happy with the adoption of even this optional measure.
While 59 countries voted for its adoption, 26 opposed it and
48 abstained. India, true to its character as a shame-faced
retentionist, was among the absentees. Today’s task is to
insist that this country which was unhappy with even the
adoption of the optional protocol shall opt for it forthwith.
The task is evidently not going to be easy, especially as we go
into the era of burgeoning neo-liberalism, but to abandon it is
to succumb to the brutal logic of the times. The campaign
must go ahead with vigour, if nothing else to ensure that we
do not slip back.

I hope the present volume will provide its readers with

enough material to answer the questions and queries that the
campaign would no doubt attract, and thereby win over
more friends to the abolitionist cause.

1. ‘retentionist’ is the expression used in international law for

countries or States that argue for retaining the Death Penalty
2. Chairman of the Committee on Reforms of the Criminal Justice
System
44 K. Balagopal

3. The Supreme Court on January 29, 2004 converted life term

into Death Penalty to four members of the ‘Veerappan gang’ for
killing 22 policemen and forest officials in a landmine blast in
Karnataka in April 1993
4. A right-wing upper caste landlord militia mainly based in
Bihar
5. L.K. Advani. Deputy Prime Minister of India from 2002 to
2004

n
 Of Capital and Other Punishments 45

Death Penalty: Why Not India

Join The Global Mainstream?

T 1
he President of India is believed to be a political novice,
and his political acts have been understood as such. For
instance, a more artful person than he would not have
allowed himself to get implicated without protest in the Bihar
Assembly dissolution mess. Likewise his recent
recommendation on clemency petitions of death-row
convicts pending with his office may be construed as proof
that he is also a novice in the exercise of executive powers.
Otherwise, it would seem, he would not have so guilelessly
recommended commutation of the Death Penalty in all the 50
applications.
Novice or not, he has done a good thing by rekindling the
debate on Death Penalty, that too by the positive act of
recommending clemency. The Press has reported his
statement at some gathering that he has found that only the
poor are getting hanged. That is indeed one of the many
reasons why complete abolition of the Death Penalty is
sought by human rights activists, though poor may not be the

Date of publication not known

46 K. Balagopal

exact word for it. Those who are on the margins of the
economy, the society and polity -- the poor, the socially
disadvantaged and those politically beyond the pale -- are the
ones who get the extreme punishment. It is not that the
crimes they are hanged for are never heinous. They may well
be. But others who commit equally heinous crimes manage to
avoid the hangman, indeed any punishment at all, to an
extent disproportionate with their proclivity for crime. It
need not be that judges let them off willfully: it is the way
justice works. It works not only through the abstractions of
law and the solemnity of evidence. It works also through
society and its political, economic and social structures.
What will happen to the President’s recommendation is
to be seen. One of the grey areas of Constitutional
interpretation is whether the President, while exercising the
sovereign’s power of clemency, is bound by the opinion of the
Union Cabinet as he is in the exercise of less exalted executive
powers. It depends on the relative obduracy of the Union
Cabinet and the Presidential conscience whether this issue is
going to be settled now.
That Death Penalty is objectionable, among other things,
because it reeks of revenge is a well known argument. It is
not that the desire for revenge is necessarily inhuman, for we
all know of situations where we sympathise with that desire
in victims of injustice. Yet it is found objectionable as a
guiding principle of penal justice because revenge, even
when understandable, is believed to be a reaction born of
weakness, whereas justice rendered by society organised as a
civilised entity is expected to eschew human weakness.
But in at least two of the cases pending with the
President, even the principle of revenge does not require that
those on death row be hanged, for the revenge was had at the
time of the offence itself. Dhanu who blew up Rajiv Gandhi
 Of Capital and Other Punishments 47

blew herself up along with him, and the five militants who
attacked Parliament died in the shootout that followed. Even
revenge should not require that their associates be hanged.
If criticism of the principle of revenge -- called retribution
in polite talk, namely jurisprudence -- did not get us hot
under the collar, we would be able to see an anomaly in the
usual equation made by popular morality: when he has
killed, what is wrong in killing him in turn? Nobody would
say: if he has burnt another’s house why should not the law
burn his house? If he has broken another’s leg, why should
not the law, in cold blood, aim a rod at the middle of his leg
and break it into two? The alternative of keeping the offender
out of society’s way for a time calculated to render him
contrite is deemed sufficient punishment in such offences, at
least by those who regard themselves as modern. How are
murder and treason so different that they require recourse to
the archaic moral equation? But more is wrong with this
moral equation than that it is archaic. It places the totality of
the moral guilt on the offender, which is never fair, even in
extreme cases such as Dhananjoy Chatterjee’s2. Every one of
us is a little guilty of the cruelty of the Dhananjoys of the
world, and hanging them is one way of evading that fact.
But the President has a very contemporary argument in
his defence. These days we Indians wish to be global, and not
live outdated autarchic lives. Well, the majority of the
countries of the world are no longer imposing the Death
Penalty. Some have banished it from the law, some have
suspended it for extended periods, and some have confined
it to war-related offences. It is true that the strong anti-
democratic currents sweeping the world after 11 September
2001 have put pressure on these countries to reverse the
trend, but as of now the pressure has on the whole not
succeeded. Would India not like to go global in this area, join
48 K. Balagopal

the global mainstream? Or do we wish to transport into this

realm too the equation we have tacitly accepted in
international politics: global means the US, in which case
there is no hope for those on death row, for the US is next
only to China in the gruesome frequency of the recourse to
the Death Penalty.

1. A.P.J Abdul Kalam. President of India from 2002 to 2007

2. Security guard who was executed by hanging on August 14,
2004 at Alipore Central Jail, Kolkata for the rape and murder
of 14 year-old Sheetal Parekh on March 5, 1990

n
 Of Capital and Other Punishments 49

Campaign Statement

T he Death Penalty is one of the most blatant assertions of

the State's privilege to take life. The sheer irreversibility
denies it justification, more so given the proven fallibility of
the criminal justice system. The Law Commission considered
the matter in the early sixties and recommended retention of
the Death Penalty on the ground that there was nevertheless
some social purpose to be served by it. A private member’s
bill for abolition, also moved in the sixties, failed with the
majority in Parliament expressing belief in the same elusive
social purpose. Thereafter, the only meaningful debate on
Capital Punishment has been in the course of challenges to its
Constitutionality before the Supreme Court. While laying
down that it should be imposed only in the “rarest of rare”
cases and from time to time prescribing other safeguards in
the process, the Supreme Court has stopped short of striking
down Capital Punishment. The increasing crime and violence
in society, the Law Commission’s observations made on the
sole occasion when it considered the matter, and the view
that it is for the Parliament to settle such an issue, have all
weighed with the Supreme Court in not declaring the
provision unconstitutional.
Written in 2004
50 K. Balagopal

Within the polity, a certain complacency has grown on

the issue of Capital Punishment. The law that it is to be the
exception rather than the rule, the Supreme Court’s ruling
that even this must be only in the rarest of rare cases,
incidental safeguards, and the fact that the numbers of those
executed is comparatively small in India, have contributed to
this complacency and diffused civil society debate. Executive
intransigence faced while pursuing clemency appeals,
signifies the extent to which thought has been blunted on
such a vital issue. The Supreme Court’s whittling down of the
scope of the Death Penalty generally and the judicial
pronouncement of this punishment in a particular case is
taken as having settled everything, rendering any reopening
of issues unwarranted. The absurdity of such a position
becomes obvious when we see that the occasion for executive
clemency arises only after a judicial imposition of
punishment.
The assumptions supporting the continuation of Capital
Punishment need to be thoroughly debunked. The clamour
for severe punishment accompanying every shocking crime
creates an illusion of public support for Capital Punishment.
The State’s active role in engendering alienation and
repression, and its failure in crime prevention and effective
prosecution is sought to be covered by its ready offer to kill
the individual offender. Besides the complicity of the State in
it, escalating violence in fact proves the ineffectiveness of the
Death Penalty as a deterrent. Violence in society cannot be
addressed without addressing the issue of the State’s
justification to kill i.e. the Death Penalty.
The proposition that crime and violence exist
spontaneously and inspite of the State, is a great lie. The
specious logic that equates the demand for abolition with
support for crime must also be addressed. The argument
against the Death Penalty is not an argument against justice.
It is an argument against violence.
 Of Capital and Other Punishments 51

Capital Punishment is a conscious acknowledgement

that the State may kill in public interest. This insidiously
generates a less articulate justification for other forms of State
violence.
The safeguards prescribed by the Supreme Court have
empirically not worked out. For example, at least two
Supreme Court judgements have ruled that Capital
Punishment should not be imposed in cases where the trial
and the appellate courts have given contrary findings on
guilt. In spite of this, we find that in several such cases, even
the Supreme Court has confirmed the death sentence. Such
anomalies have escaped even the notice of the executive
while considering mercy pleas.
The eventual imposition of the death sentence is more a
function of the inadequate legal assistance that the accused
have been able to secure than of the nature of the crime itself.
For example, two young boys from Andhra Pradesh were
convicted of murder and sentenced to death by every court,
while the conviction itself arose on the basis of a clearly
vitiated process of identification. The vitiation in the
identification process, a technical point, was discovered quite
late. It had not been pointed out at the trial. It is frightening
to think of how random the whole process can be. Of course
it is the poorer sections that are most likely to suffer the
consequences of this randomness.
The executive power of clemency conferred on the
President and the Governor is exercised in complete
opaqueness. There is no knowing what weighs with the
executive head in granting or refusing mercy. The Supreme
Court has held that the President and the Governor are
bound by Cabinet advice while dealing with clemency
petitions. Further, the executive head can review the judicial
findings as also other factors which are beyond the ken of the
52 K. Balagopal

judiciary, while considering crime and punishment.

Nevertheless, it is not known how the Cabinet’s advice is
taken and what nature of scrutiny is adopted in disposing of
a clemency petition. And, as said earlier, instances exist of the
official channels raising the very fact of the judicial
pronouncement as a ground for non interference. No data is
readily available on the number of mercy appeals by or on
behalf of death row prisoners and their fate.
The abysmal record of the State in rehabilitation of crime
victims, and in meaningful attempts at reform, render it
completely suspect as a welfare institution. The sheer
increase in the volume of crime and violence in spite of the
usurpation by the State of more and more powers and
alongside the existence of the Death Penalty is a complete
refutation of its justification for any social purpose.
Above all else is the repugnance that any people sensitive
to human values and dignity must feel on contemplating the
existence and maintenance of a system to consciously and
with legal sanction eliminate life. This repugnance has
moved thinkers and writers of all ages to call for the abolition
of the Death Penalty --Tolstoy, Camus, Sartre and
Dostoyevsky being some of them.
The argument against the Death Penalty is not to
condone the crime. It is not even merely to emphasise the
right to life, dignity and opportunity for reform of the
persons on death row, though all these things are important.
It is an exhortation to society and the State to make a positive
statement against violence.
We are cognisant of the fact that the Death Penalty is an
extreme issue, but in reality it cannot be seen as divorced
from other repressive and dehumanising aspects of the
penological policy of the State.
 Of Capital and Other Punishments 53

Sporadic attempts have been made by civil society

groups to engage with the issue. In recent years these have
taken the form of pursuing mercy appeals before executive
authorities. Some have resulted in interventions by civil
society groups in the process, even after the rejection of
appeals by the condemned prisoners themselves. In a recent
case, members of a civil rights group even visited the village
of a condemned prisoner, interacted with his social
surroundings and placed the material before the President in
support of the plea of mercy. However a more concerted
campaign is called for. Dialogue must begin involving the
State and social agencies, the victims of crime, and activists
all over the country. There is need to build a strong network,
for an informed campaign. Documentation and
dissemination of information will be a necessary part of this.
It is certain that if the anatomy of Capital Punishment is
exposed, there would be very little public support for it.
We hereby resolve to carry out an informed campaign for
the abolition of the Death Penalty in India.

n
54 K. Balagopal

Chilakaluripeta Bus Burning Case :

Mercy Plea To President

To
His Excellency
The President of India

Sir,
This is a plea for the exercise of your Constitutional
power under Article 72 to grant commutation of death
sentence in favour of Sathuluri Chalapathi Rao (20) and
Gantela Vijayavardhana Rao (22)1. The two young men in
their twenties were convicted by the Sessions Court at
Guntur. The court sentenced them to death. The death
sentence was confirmed by the Andhra Pradesh High Court,
and the convicts appeal to the Supreme Court has been
dismissed on 28 August 1996 (Criminal Appeal No.
195/1996). Following the dismissal of the appeal, the Sessions
Court of Guntur has issued a death warrant for the execution
of the two convicts on 18-12-1996.
Written in 1997
 Of Capital and Other Punishments 55

Both the young men belong to poor Scheduled Caste

families of Guntur town. If they are hanged to death their
families will be rendered destitute. Both these young men are
victims of poverty and hunger. In order to get out of the
dragnet of poverty and hunger they thought of resorting to
robbery of a bus and in the process the bus caught fire killing
23 passengers. It is a case of poverty leading to robbery,
robbery leading to an accident taking away innocent lives.
We appeal to Your Excellency to look at the cause of the crime
-- poverty -- and allow them to live to reform themselves as
they have a long life ahead. Added to this they have no
history of previous robbery, theft, jail life and not even of
entering into police lockup. The caste-class nature of our
society had driven them to this end. Therefore, they must be
allowed to live and reform.
A Constitution Bench of the Supreme Court had held, in
Bachan Singh Vs. State of Punjab (1980), that death sentence
must not be awarded as a matter of course, but only in the
‘rarest of rare cases, when the alternative option is
unquestionably fore-closed’. Subsequently, what is it that
distinguishes a case as ‘rarest of rare’ is a matter that has been
agitating the Supreme Court. While the court has discussed
the question again and again, the debate is not yet closed.
However, in the present case all the courts have evidently
concluded that since the crime has resulted in the death of 23
passengers the courts, without looking at the cause of deaths,
felt that they must be given death sentence. The matter
however, should be viewed from the moral and human angle
as well.
The plain facts of the case are that Chalapathi Rao and
Vijayavardhana Rao are youth with no previous criminal
record, let alone previous conviction. This is the first time
that they were at all booked in any criminal case. They are not
56 K. Balagopal

habitual and hardened criminals whom society can get rid of

only by physical extermination. The two were hard working
labourers who belong to the Scheduled Caste. Both of them
have old parents and other dependents to look after. With
their death both the families will get ruined. They were
tempted to take to robbery for the first time in their lives in
an effort to meet their dire need of money. It was not ‘lust for
wealth’ but dire need that motivated them, contrary to the
interpretation the courts put on their act. Their aim was only
to commit robbery and not kill any one. Lacking any
previous ‘experience’ in committing robberies, they did not
know how to set about the task they had assigned
themselves. They read in a newspaper about somebody who
had robbed a bus by using petrol to threaten the passengers,
and decided to use the same technique. Their idea was to
sprinkle petrol in the bus, threaten passengers with the show
of setting fire, and rob them without causing injury to any of
them. However, when one of them started sprinkling petrol
along the floor of the bus as planned, an unforseen thing
happened. The driver smelt the petrol, shouted and braked
the bus and switched on the lights. The passengers then woke
up and started shouting. This scared the novice robbers who
were paralysed by the unforseen turn of events. They got
scared that the passengers may lynch them. Their only
thought was to escape unhurt. But the passengers too were in
a hurry to get out of the bus. In the melee the petrol caught
fire, and the horrible tragedy occurred in a matter of minutes.
In the Trial Court, the two accused took the usual plea
that the whole charge against them was fabricated, and that
even the charge of attempted robbery was not a fact.
However, after being convicted by the Trial Court, they
narrated to us the above facts as the true story of what
happened. They are as much in the dark as everybody as how
exactly the fire started. They insist that even in their panic
 Of Capital and Other Punishments 57

they did not set the bus on fire. However, petrol being highly
combustible, it need not occasion any surprise if it caught fire
accidentally in the commotion caused by the scramble,
perhaps with the ignitions from the engine. One of the
accused, Vijayavardhana Rao, himself partly got burnt by the
fire.
We do not ask for condonation of their crime. All that we
say is that in the circumstances, the extreme penalty of death
is not warranted. Life imprisonment, which will help them to
repent the one act of crime they have committed in their lives,
and become useful citizens and better human beings, is a
more appropriate punishment, considering that they are not
hardened criminals by any stretch of imagination, but only
poverty stricken young men misled by their dire need of
money. This is in truth a consideration that could have moved
the courts too, in deciding whether the crime was of the
‘rarest of rare’ category for which the death sentence is
warranted, but the courts were evidently carried away by the
prosecution presentation of the case, in which the
unintended happening is made to appear as an act of
diabolical inhumanity. As the accused pleaded not guilty to
all the charges, the courts did not have the benefit of a first
person account of what actually transpired that night. Now
the true narration has been submitted to Your Excellency by
the convicts in the pleas for mercy submitted by them, which
we briefly summarised above. The narration indicates plainly
that they had in mind only robbery and not the killing of a
single passenger, let alone 23 of them, and that they did
nothing to kill the passengers.
Vijayavardhana Rao was a rod-bender in building
construction, and Chalapathi Rao a painter. Vijayavardhana
Rao’s father had died long ago, and this man was the sole
support for his sickly mother. Chalapathi Rao’s father is old
58 K. Balagopal

and infirm, and that young man too was the bread-winner of
his family, his wife and his younger sister. Neither of them
earned anything for their family’s survival by means of their
honest toil. They were constantly tormented by poverty,
which is the common lot of labourers in the unorganised
sector of the Indian economy.
In a different milieu, perhaps, their thoughts would not
have turned to crime, but we live an era where the political
and media culture make it almost inevitable that indigent
young men soon start thinking of short-cuts to earn money.
Mass murders have been engineered in the city of Hyderabad
to dislodge one Chief Minister and enthrone another. In a
socio-economic milieu where the well to do and even the
political leaders engineer criminality to earn more and more
why should one then feel surprised if poverty stricken young
men do not hesitate to commit crimes for the sake of some
money? And the media (especially films, which even very
poor people see) has made crime and vengeance heroic. If the
politicians have bridged the gulf between public service and
crime, our film world has, in its theatrics, dissolved the
distinction between crime and just rebellion. It is no surprise
that intelligent and impressionable young men like
Chalapathi Rao and Vijayavardhana Rao should let the
frustrations born of irremediable poverty drive them towards
crimes of violence. We no doubt rightly feel shocked at their
irresponsible act, but has our society striven to preserve the
human moral environment that would inhibit young men
from taking recourse to such means? This is not to absolve
them totally of their responsibility for the conscious choice
they made, but only to point out that society should at last in
part bear the burden of the crime they chose to commit, and
the much bigger crime that resulted from their attempt. To
hang the two young men is to absolve society -- and all of us
-- of all responsibility in the matter. To commute their
 Of Capital and Other Punishments 59

sentence to a smaller one, and to hope that they will emerge

penitent and better human beings from the incarceration, is
to at least acknowledge that they are only part authors of the
crime.
We, therefore, request you to commute their death
sentence and allow them to live and reform.
-- Joint Action Committee for the Commutation of Death
Sentence of Chalapathi Rao and Vijayavardhana Rao,
Andhra Pradesh.

1. Their death sentences have since been commuted to life

imprisonment. The two have been in prison for more than 18 years
serving out their sentences. The AP government is as yet unwilling
to give them the benefit of a premature release.

n
60 K. Balagopal

On Death Row :
NHRC Urged To Intervene

To
The Hon’ble Chairperson
National Human Rights Commission
New Delhi

Respected Sir,

Sub: Intervention in mercy petition under Article 72

pending before the President of India.

This is a plea to the NHRC to intervene in the matter of

the death sentence passed against two dalit youth, Sathuluri
Chalapathi Rao and Gantela Vijayavardhana Rao by the
Sessions Court, Guntur, A.P. (S.C.No.662/1993). The death
sentence was confirmed in due course by a Division Bench of
the High Court, and the appeal by the convicts was dismissed
by the Supreme Court on 28 August, 1996.
 Of Capital and Other Punishments 61

Petitions seeking commutation of the death sentence to

one of life imprisonment under Articles 161 and 72 of the
Constitution of India were filed with the Governor of A. P.
and the President of India respectively. The Governor of A.P.
declined to act on the petition. As a similar petition was
pending with the President, the President of India considered
and rejected the mercy petition in March, 1997.
The convicts were to be hanged on 29 March, 1997 but a
fresh last minute petition for commutation presented to the
President of India by Maheswata Devi, well known Bengali
writer and Jnanpith award winner, impelled the Supreme
Court to direct a stay on the execution until 5 April, 1997 to
enable the President to dispose of the matter. On April 4, the
Union Cabinet considered the petition but did not make any
recommendation to the President. Instead, it extended the
stay on execution until a decision is taken.
Many prominent citizens have written to the President
seeking a positive response to the commutation petition.
Prof. Rajini Kothari, eminent political scientist, Prof.
Manoranjan Mohanty, also an eminent political scientist and
renowned expert on Chinese politics, Sri V.M. Tarkunde,
former Judge of the Bombay High Court and a pioneer of the
human rights movement in India, have personally met the
Union Home Minister, Prime Minister and President and
explained the rationale for seeking commutation. So have Sri
George Fernandes and Sri G. Venkataswamy, both former
Union Ministers and Sri Rabi Ray, former Speaker of the Lok
Sabha. Sri V.R. Krishna Iyer, former Judge of the Supreme
Court of India and Sri K.G. Kannabiran, president of the
PUCL are among the many who have written to the President
in defence of the plea for commutation. So have many
academics, lawyers and journalists including Sri Nikhil
Chakravarthy, Editor of Mainstream. Many human rights,
62 K. Balagopal

dalit, worker, peasant and youth organisations all over the

country are actively campaigning for commutation of the
death sentence.
We request the NHRC to also intervene and defend the
plea for commutation before the President of India. Our
request is based upon two considerations. One is that to the
human rights viewpoint, which guides the outlook of the
NHRC, death sentence is itself abhorrent and objectionable,
irrespective of the specific details of the case in question. The
second is that this case in question deserves a more lenient
view than has been adopted by the courts.
1. The NHRC’s task is to inculcate a human rights culture
in the administration. It is required to not merely investigate
and pronounce upon individual complaints, but also to strive
for reform and reshaping of the law, legal administration and
executive practices in general with a view to increasing their
commitment to human rights. While the courts are bound by
the framework of existing law and its progressive
interpretation, the NHRC has the task of not only ensuring
that the statutorily guaranteed human rights are enforced,
but also of trying to reshape law and the State practices in
general in tune with the values and principles of
internationally acknowledged human rights. We are aware
that the Protection of Human Rights Act, 1993 includes
internationally accepted principles in the definition of human
rights only to the extent they are enforceable by Indian
courts. However, we are not at this point concerned with
positive human rights law but with the framework within
which the NHRC may comprehend and interpret the
provision of sovereign mercy contained in Article 72 the
Constitution of India. This framework is constituted by the
principles advocated by the most enlightened human rights
opinion of the world. These principles are the frontiers of
human rights law. If they are not yet positive law in all
 Of Capital and Other Punishments 63

countries, they are nevertheless the emerging principles of

what can be tomorrow’s norm for a human rights law. It is
these frontiers that constitute the true frame of reference for
the NHRC to the extent that its concern is not just to ensure
compliance with legally guaranteed human rights, but to
reshape the country's law and practices in accordance with
the evolving principles of human rights.

The mercy jurisdiction of the Head of State under Article

72 is an appropriate arena for giving effect to such principles,
for that jurisdiction is not limited by existing Indian law
which has not yet abolished the Death Penalty. Abolition of
Death Penalty, or the principle that nobody shall be deprived
of life in the name of administration of justice, is one of the
important principles in international human rights discourse.
The principle is not yet law in India, but it can be a guide for
interpreting the meaning and scope of the power of mercy
granted to the President in Article 72. About 55 countries of
the world, including some Third World nations, have
abolished Death Penalty. Another 40 countries have in
practice ceased to award the Death Penalty. The UN has
repeatedly made efforts to obtain a consensus in the General
Assembly for the universal abolition of Death Penalty. What
this indicates is that the abolition of Death Penalty is not an
unrealistic dream, but a matter on the agenda of international
human rights law. Article 72 of the Constitution of India,
which is not limited by existing penal law, is an apt context
for furthering the human rights content of penal culture in
line with international norms, even if the norms have not yet
succeeded in taking the form of a UN Covenant.

Thus we feel that the NHRC can effectively intervene in

the matter in the furtherance of its own statutory
responsibility of strengthening the human rights content of
the country’s administration.
64 K. Balagopal

2. The facts of the case are that the two convicts are poor
dalit labourers, skilled but not regularly employed. They had
no previous criminal record whatsoever. Tormented by
poverty, they decided to commit a bus robbery. Taking the
clue from a news item about a similar robbery, they decided
to buy some petrol, board a bus, sprinkle petrol in the bus
and rob the passengers at the point of a match stick. At no
point did they have any intention of killing anyone.
Accordingly, they boarded an overnight express bus
proceeding to Chilakaluripeta from Hyderabad on the
intervening night of 7-8 March, 1993 and tried to put their
plan into effect. But due to their total lack of experience their
plan went awry as the bus crew and passengers got up and
started shouting. The would-be robbers were as scared as the
passengers and they too tried to jump out of the bus without
robbing anyone. But they had already sprinkled petrol in the
bus; the bus caught fire in the melee killing 23. Some of them
died instantly and others later in hospital. It is not clear how
the bus caught fire. Petrol being highly combustible, the
slightest spark from any source could have ignited it. The
convicts insist that they did not light the fire. One of them
was even partially burnt. It makes no sense to assume that
they lit the match stick for their aim was only to rob the
passengers and not to kill them and they had as yet robbed
no one.

In the case made out by the prosecution, the incident is

described as a case of diabolical murder rather than an
accidental happening. The motive for the killing is nowhere
made out in the charge-sheet. There are other discrepancies
too which can be read in the Sessions Court’s judgement
annexed as A-I to this letter. All the initial accounts of the
incident, including the dying declarations, mentioned four
and not two perpetrators of the offence. The prosecution has
 Of Capital and Other Punishments 65

not explained this discrepancy. We are enclosing as annexure

A-3 a copy of the plea for mercy submitted to the Governor
of A.P. by the convicts which narrates the event as it actually
happened. We are also enclosing as annexure A-2, a copy of
the plea for mercy submitted by us on their behalf to the
Governor of A.P., in which we have explained the event and
its background. We must also add here that the accused did
not have legal assistance until the time of framing of charges
which violates the principle of fair trial as laid down by the
Supreme Court of India in Khatri Vs State of Bihar, 1980.

In light of the above, we wish the NHRC to consider

whether the criminality of the act is such as to make it an
offence that can be put in the ‘rarest of rare’ category in terms
of its heinousness. The only reason for doing so would
appear to be the fact that 23 persons were killed in the
incident. Can the number of persons killed as a consequence
of the act add to the heinousness of the act as evidenced by
the intention, motive etc.? If the occupancy of the ill-fated bus
had been thinner and if, say, five or six persons had died,
would the law have regarded it as so heinous that sentence of
death alone is the deserved punishment, and option of any
smaller punishment as irrevocably closed?

Moreover, how unpardonable the crime is deemed to be

is a matter that cannot be divorced from the conditions and
circumstances that led to the crime. The circumstances of
poverty and suffering that led the two dalit youth to try to
rob the bus are described and discussed in annexures A-2 and
A-3. They must be taken into account in deciding whether we
treat the offence as so unpardonable that a sentence of death
alone can redress the wrong, quite apart from the fact that the
accused had no intention of killing anyone but only of
robbing them.
66 K. Balagopal

Thus, within the framework of Indian law relating to

Death Penalty, we feel that this is an apt case for the NHRC to
raise before the Supreme Court of India the question of the
various dimensions and facts that go to decide whether an
offence qualifies for the description ‘rarest of rare’ used by
the Supreme Court in re Bachan Singh (1980). As the
Protection of Human Rights Act provides general locus
standi to the NHRC to raise legal issues pertaining to human
rights before the Supreme Court, we request you to take this
up in an appropriate petition before the Supreme Court in
addition to intervening with the President of India.

Date: 15-4-1997 Yours truly

K. Balagopal
General Secretary,
APCLC

n
 Of Capital and Other Punishments 67

Do They Deserve To Be Hanged ?

Dear friends,
This is an appeal to residents of the nation’s capital to join
us in the campaign to persuade the Government of India to
commute to life sentence the sentence of death passed on S.
Chalapathi Rao and G. Vijayavardhana Rao, two dalit youth
of Andhra Pradesh.
The two young men were self-employed labourers of
Guntur district in Andhra Pradesh. The former was a painter
and the latter a rod-bender in building construction. They
had no previous crime record, and indeed had never stepped
into a police station in their lives.
Unable to make both ends meet with their honest toil,
and unwilling to resign themselves to the life of distress
imposed by their birth in a property-less dalit family upon
them and their dependents, they decided one day in 1993 to
rob a bus. Taking the cue from a news item they read in a
paper, they decided to buy a can of petrol, board a bus,
sprinkle the petrol on the floor of the bus, threaten the

Written for a Dharna at Jantar Mantar, New Delhi, 6-10-1997 seeking

commutation of death sentence in the Chilakaluripeta bus burning case.
68 K. Balagopal

passengers that they would set the bus on fire, and rob them.
It was not their intention to kill anyone, but only use the
threat to rob the passengers.
It was no doubt an irresponsible plan. Petrol being highly
combustible, there was always the possibility that it would
catch fire and cause unintended damage. That is what in fact
happened when the two young men put their plan into effect.
The overnight express bus in which they tried their robbery
caught fire before they could rob anyone, and twenty three
passengers, half asleep, were burnt to death. One of the two
would-be-robbers was also partly burnt before the two of
them could jump out and escape.
The Sessions Court of the district sentenced them to
death, and both the High Court and the Supreme Court have
confirmed the death sentence. Now a plea for commutation
of the death sentence to a sentence of life imprisonment is
pending with the President of India. On behalf of the Joint
Action Committee for Commutation of the Death Sentence,
consisting of a number of dalit, workers’, women’s and civil
rights organisations of Andhra Pradesh, we request you to
join us in asking the President of India to exercise his
discretion in favour of the plea.
Why?
The two young men have committed a crime, a horrible
crime. They undoubtedly deserve to be punished. But do
they deserve to be hanged? To hang them is to hold them
alone and exclusively responsible for the offence they have
committed and to absolve the rest of us of our responsibility
for driving them to crime.
Fifty years after Independence, the life of unemployed,
semi-employed or self-employed slum dwellers continues to
be an unrelieved tale of misery and suffering. The
government, which under the Constitution of India is
supposed to build a society based on social, economic and
 Of Capital and Other Punishments 69

political justice, has failed miserably in taking the country

forward one inch in that direction.
For those among the poor who are dalits by birth, the
possibility of moving up in life are further closed by the
accident of their birth. No helping hand is offered to them by
society. A life of endless misery, toil and eternally belied hope
is their lot.
It is no surprise that young men brought up in this milieu
seek desperate remedies. What, in any case, is the role model
offered to them by our society’s elite, whether political or
economic? Is it not a model of selfishness, plunder, scams and
hawalas? What is the message sent out by the indifference that
all of us exhibit towards the misery of the poor and the
deprived? Is it not a message of each for himself, and the
devil take the hindmost? Does society spend even one-
hundredth of the time in worrying about the misery of slum-
dwellers that it does worrying about the crimes committed
by slum-dwellers? If we did, would it be necessary for poor
semi-employed dalits such as these two boys to take to
crime?
To allow these two young men to be hanged is to allow
our country’s rulers to get away once more with their crime of
indifference towards their Constitutional obligation to build a
welfare State in India. It is to allow the rest of society - that
includes all of us-get away once more with our crime of
indifference to the lot of the poor and the deprived except
when they turn to crime. We hope, therefore, that you will join
us in putting pressure upon the President of India to
commute their death sentence to a sentence of life
imprisonment.
— Joint Action Committee for the Commutation of
Death Sentence of Chalapathi Rao and Vijayavardhana Rao,
Andhra Pradesh.

n
70 K. Balagopal

Rajiv Gandhi Murder Case :

A Plea For Clemency

To
His Excellency
Sri K.R. Narayanan
President
Rashtrapathi Bhavan
New Delhi

Your Excellency,
Sub: Requisition to His Excellency Sri K.R. Narayanan,
President of India to grant clemency and commute
the death sentence to one of life imprisonment
in favour of the four convicted in the
Rajiv Gandhi murder case.

This is a plea for the exercise of Your Excellency’s power

of clemency under Article 72 of our Constitution to commute
Written in 1999
 Of Capital and Other Punishments 71

the death sentence to one of life imprisonment in favour of (1)

T. Suthenthiraraja @ Santhan, (2) S. Nalini, (3) Sriharan @
Murugan, (4) G. Perarivalan @ Arivu1 whose death sentence
in the Sriperumbudur bomb blast case, popularly known as
the Rajiv Gandhi murder case was confirmed by the Supreme
Court in Death Reference case no. 1 of 1998 on 11.05. 99. The
Review petitions filed by the above four persons were
dismissed by the Apex Court on 07.10.99.
We state below in brief the main grounds on which we
seek Your Excellency's indulgence:
(1) Your Excellency will agree that in any civilized penal
system, punishment must strictly be commensurate with the
crime, but not equivalent to it.

The bomb blast at Sriperumbudur which was targeted at

and which killed, among others the much loved and
respected Sri Rajiv Gandhi, former Prime Minister of India,
was unquestionably a dastardly and brutal act. Twelve of the
accused who played a pivotal role in the offence are already
dead. Except Dhanu and Haribabu who died in the bomb
blast, all the others committed suicide, apprehending arrest
and torture. Those who were apprehended and tried are
minor players in the conspiracy. The evidence shows that all
of them merely followed the dictates of Sivarasan, who
planned and led the conspiracy and the actual offence. It is
not that they are therefore innocent, but their culpability is
less than that of the leaders who are no more. It is most likely
that if Sivarasan, Subha and the other main perpetrators of
the crime had been caught alive and prosecuted, those who
are now sentenced to death would not have been sentenced
to death along with them. In all probability, the court, either
72 K. Balagopal

at the First or Appellate instance, would have found a lesser

sentence sufficient for them. There is no reason to come to a
different conclusion now merely because the main
perpetrators of the crime did not wait to come before the
court.

The penal principle of deterrence, we submit with

respect, even if one were to subscribe to it, does not require
that the minor players should be executed when the main
players have evaded the gallows by killing themselves.

(2) Your Excellency will agree that the extreme penalty of

death is inappropriate in a case where there is even a slight
suspicion that the conviction is obtained by coerced
confessions.

The case was charged and tried under the Terrorist and
Disruptive Activities (Prevention) Act (TADA). Section 15 of
TADA allows a confession made to a police officer admissible
in evidence and this was used to extract confessions from the
accused. The case has been proved only on the basis of these
confessions.

The nature of these confessions may be gauged from the

fact that, barring one of them, all others who confessed did so
only at the fag end of the 60 day period of police remand.
Their mental state during that period may be gleaned from
the fact that ten of their co-accused committed suicide,
having decided to die, rather than fall into the hands of
police.

All those who confessed have told the court that

confessions were extracted from them. While that may not be
reason enough for the court to disbelieve the confessions, it
raises enough doubt to rule out the application of extreme
 Of Capital and Other Punishments 73

punishment. Besides, the contents of the confessions

extracted by the police contradicted each other and the
evidence of the prosecution witnesses were not in many
instances corroborative of the contents of the confessional
statements -- facts which have been pointed out in the
Judicial Review petition.

(3) Your Excellency will agree that when the case is tried
under a law that is admittedly draconian, the extreme
punishment is inappropriate, for error cannot be ruled out in
the prosecution.

Your Excellency is aware that TADA was allowed by

Parliament to lapse, because of the widespread criticism of its
draconian character. While technically, it is not wrong that
cases which were earlier booked under TADA are allowed to
be tried under it, such a practice would be most improper,
since the Act lapsed, not for any other reason, other than that
it was extremely draconian.
But for the use of TADA, which allows confessions made
to police officers admissible in evidence, unlike normal law,
there would be nothing in this case. To put it frankly, the case
has been proved only by using the facility provided by the
draconian TADA to lock up the accused for 60 days in police
custody, extract a confession from him/her and use it as
evidence to prove his/her guilt.
The voluminous records submitted in this case cannot
hide the fact that the Prosecution's case has been established
and proved only in this manner. Your Excellency will agree
that awarding the Death Penalty on the basis of an Act that
lapsed because there was a national consensus on its
draconian character is not only improper but also extremely
unsuited to a democratic polity.
74 K. Balagopal

(4) Your Excellency will agree that death sentence should

not be awarded when the proof of the case is based on an
admittedly debatable view of the law, in this instance, Section
12 of TADA, which has been interpreted by the learned
judges in such a way as to make confessions made under
Section 15 of TADA admissible in evidence, even after the
charges made under TADA had been struck down.
The Supreme Court has held, upon an elaborate
consideration of the evidence in this case, that the
Sriperumbudur bomb blast was not a terrorist or disruptive
act, as defined in TADA, though it is without doubt a heinous
act. That is, the offence does not attract the provisions of
TADA. The learned judges of the Court have held that none
of the four accused are guilty of terrorist or disruptive acts,
thus implying that they are not a menace to our country and
society.
Yet it is paradoxical that the Court has held that since the
case was charged under TADA, the confessions extracted by
police officers can be admitted in evidence under Section 15
of TADA. With all due respect to the learned judges, we
submit that such a view is debatable.
We do not ask Your Excellency to sit in judgement over
this view of the Supreme Court, nor can we reasonably make
such a plea.
But we would like to point out that this is a view which
is quite likely to be reversed by the Court at some point or
other. But, if by that time, the accused are hanged, their lives
cannot be resurrected.
(5) In this context, we would like to draw Your
Excellency’s attention to the nature of these young lives
which were drawn into a conspiracy in which they were mere
pawns.
 Of Capital and Other Punishments 75

We submit, Your Excellency, and it is clear from their

social and economic backgrounds that they were persuaded
to subscribe to a misguided idealism. This idealism, in turn,
derived from an indoctrination they were powerless to
criticise or resist, given their extremely humble social origins
and also from more mundane, material considerations
dictated by their economic situations.

All these four persons have had to endure 8 years of

uncertain and painful incarceration, haunted by the ever
present shadow of an impending death, which have left
every one of them scarred in different ways. At a time of their
lives when they should have been enterprising and lively,
they were forced to endure prison life for their unwitting role
in a heinous crime of which they knew almost nothing. Their
imprisonment, trial in the designated court and the awarding
of death sentence have already caused a great deal of anguish
to them and their families.

(6) Leaving aside the considerations bordering on

questions of a legal nature, Your Excellency will agree that
the power of clemency takes into account considerations of a
human and moral character which the law may consider as
existing outside of its ken. Indeed it is precisely because of
the relevance and value of these considerations that the
power of executive clemency is provided for in our
Constitution over and above the multiple tiers of appeal and
review.

Here, Your Excellency may not stop where the Supreme

Court has stopped in considering the human and moral side
of the punishment. For instance, should the child of Nalini
and Murugan be orphaned in the interests of justice? Would
justice be defeated, if Nalini is allowed to live for the sake of
76 K. Balagopal

the child? If so, that would be a very insecure justice indeed.

We would like to draw Your Excellency's attention to the fact
that one of the learned judges, Justice K.T. Thomas, did
approach the issue compassionately but had to agree with the
majority decision that indeed justice would be defeated even
if one of the two parents is allowed to live for the sake of the
child. The explanation offered by the judges was: think of all
those children orphaned by the Sriperumbudur blast. That is,
to imply, that justice required taking revenge for the death of
all those children. Compassion is a fundamental duty (Art. 51
A of our Constitution) and making even a single child
motherless is merciless violation of justice in its humanist
dimension.

Whatever the legal propriety of the thinking of the judges

of the Supreme Court on those lines, Your Excellency is not
bound to interpret justice in a like manner. The one who kills
seeks revenge for some wrong, real or perceived. But the
justice done by society cannot seek revenge. Then society and
its civilisation would be as weak as the weakest individual.
Would India like to put itself on par with a Sivarasan?

(7) Finally, we would like Your Excellency to consider the

merit of Death Penalty as such. The right to life is the most
fundamental right enshrined in the Universal Declaration of
Human Rights and is guaranteed as such in our Constitution.

The Death Penalty is a premeditated and cold blooded

killing of a human being by the State which can exercise no
greater power over a person than that of deliberately
depriving him or her of life. Article 51 of our Constitution
urges compassion and humanism as fundamental duties. The
Supreme Court of India has held that the focus of interest in
penology is the individual, and the goal is salvaging him for
 Of Capital and Other Punishments 77

society. The infliction of harsh and savage punishment is thus

a relic of the past and regressive times (AIR 1977 S.C 1926 at
page 1929). Though the Death Penalty has not been
eliminated from our penal system, the history of the judicial
process in our Apex Court has set it as an exception rather
than the rule. It is only in the rarest of rare cases that even
courts should use death sentence. And in mercy petitions life
sentence is the Gandhian rule.

Your Excellency will agree that more and more countries

are responding to the United Nations’ call to abolish Capital
Punishment from the statute books of the member countries
and that India finds herself only amongst the handful of
nations which either opposed or abstained from voting when
the UN Human Rights Commission recently voted in favour
of a general moratorium on Capital Punishment. It is apt to
quote a part of the Second Optional Protocol to the
International Covenant on Civil and Political Rights aiming
at the abolition of the Death Penalty. It runs thus:

“The State Parties to the present Protocol, believing that

abolition of the Death Penalty contributes to enhancement of
human dignity and progressive development of human
rights, recalling Article 3 of the Universal Declaration of
Human Rights, adopted on 10.12.1948 and Article 6 of the
International Covenant on Civil and Political Rights, adopted
on 16.12.1966, noting that Article 6 of the International
Covenant on Civil and Political Rights refers to abolition of
the Death Penalty in terms that strongly suggest that
abolition is desirable, convinced that all measures of abolition
of the Death Penalty should be considered as progress in the
enjoyment of the right to life, desirous to undertake hereby
an international commitment to abolish the Death Penalty,
have agreed as follows:
78 K. Balagopal

Article 1
1. No one within the jurisdiction of a State Party to the
present Protocol shall be executed.
2. Each State Party shall take all necessary measures to
abolish the Death Penalty within its jurisdiction.”

(8) The general arguments of deterrence and retribution

in favour of awarding Death Penalty are equally applicable to
the Rajiv Gandhi case. However, the onus of establishing the
deterrent value of Capital Punishment is on those who are
seeking to retain it. The hanging of Satwant Singh and Kehar
Singh for the assassination of Indira Gandhi did not seem to
have deterred the murder of Rajiv Gandhi. Recurrences of
such political murders are not likely to disappear from the
face of the earth.

The attraction that terrorism holds to bitter minds can

only be countered by the offer of generosity. If what we seek
is to win over embittered minds, we must first give up the
embittered mode of thought which argues that those who did
not care how many children are orphaned do not deserve
greater consideration. The gift of life to those who killed our
former Prime Minister out of political spite is the best signal
Your Excellency can send out to the world to signify that
India is generous. The courageous Gladys Staines,2 when
told of the death of her husband and two children at the
hands of the bigots said: “May God forgive them.” Cannot
India learn from her and display the same sort of nobility?

We therefore plead with Your Excellency to exercise the

greatest possible compassion and return to these young
persons the life they are on the verge of losing. All of them
then will in the future have the time and opportunity to re-
 Of Capital and Other Punishments 79

examine their lives and orient it to useful purposes and enjoy

the profound compassion and the spiritual values nurtured
by our society.
Yours truly,
K. Balagopal
Human Rights Forum

1 Nalini's sentence has since been commuted to one of life on

humanitarian grounds. However, the other three accused
continue to be on death row. In the wake of their imminent
hanging, there is a sustained campaign against the Death
Penalty in Tamil Nadu with campaigners arguing on both legal
and compassionate grounds. A case was filed in the Madras
High Court seeking commutation of the death sentence on
account of the time they had already spent in prison, and the
inordinate delay in fixing the day of hanging. As we go to press,
the three await their fate.
2 Her husband Graham Staines was an Australian missionary
who was burnt to death along with their two sons Philip (9) and
Timothy (7) while they were asleep in their station wagon at
Manoharpur village in Keonjhar district, Orissa on the night of
January 22, 1999.

n
80 K. Balagopal

Law Of Confessions And

Rajiv Gandhi Case 1

T he Kalpanath Rai judgment was an attempt by the

Supreme Court to soften the rigor of Section 15 of the
Terrorist and Disruptive Activities (Prevention) Act -- TADA.
Section 15 makes (i) a confession given to a police officer of a
rank not less than that of a Superintendent of Police
admissible in a TADA case, and (ii) it makes such a
confession admissible not only against the accused who has
made the confession but also against the co-accused and
abettor etc.
In normal law, at least in the English tradition, the best
evidence is direct evidence. That is, what is spoken on the
witness stand and is subjected to cross examination.
Confession is brought to evidence by a third person speaking
of it, saying that the accused said this and that to me. For this
reason, a confession is not regarded as very good evidence.

1. These are notes given by Balagopal in June 1999 to K. Manoharan,

Convenor of the Campaign Against Death Penalty that was seeking
commutation of death sentence to the four convicted in the Rajiv Gandhi
murder case. They were written before the review petitions of the four
were rejected by the Apex Court.
 Of Capital and Other Punishments 81

But if it stands up to the test of voluntariness, it is accepted as

evidence on the common sense ground that nobody would
voluntarily speak ill of himself unless it is true. That is why
voluntariness is absolutely essential if a confession is to be
believed. If any force or coercion is involved, it would be of
no value. That is why any confession made to the police
officer or to any one while in the custody of police is not
admitted in evidence as a general principle (irrespective of
whether in the particular case there was any coercion).
But the question that arises is this: suppose an accused
person makes a confession (other than to a police officer). If it
is voluntary, then it is admitted in evidence on the principle
that (as said above) nobody would voluntarily speak ill of
himself if it were not true. But suppose that in the course of
implicating himself, the accused implicates his co-accused
also. Can the ‘confession’ he makes about his co-accused also
be received as evidence? The reason for admitting confession
affecting him does not apply here. Here in the ordinary law,
confession of an accused is not evidence against a co-accused.
Section 30 of the Indian Evidence Act says that it can be
‘taken into consideration’ by the court against the co-accused.
Judicial interpretation has laid this to mean that it is not
evidence and therefore cannot stand on its own, but if there
is other evidence against the co-accused, then the confession
of the accused which implicates the co-accused can be called
upon to support it.
Section 15 of TADA, on the contrary, not only makes a
confession given to a police officer of a rank not less than that
of a Superintendent of Police admissible in evidence against
the accused who has given the confession, but also against
the co-accused. It is the latter part that has been ‘read down’
by the Supreme Court in the Kalpanath Rai case. Instead of
striking it down, the Supreme Court said that it means
82 K. Balagopal

nothing more than Section 30 of the Indian Evidence Act as

far as the co-accused is concerned.
A look at the Rajiv Gandhi case shows that if the above
interpretation is applied to that case, not much remains.
Much of the evidence consists of confessions in which each of
the accused implicates the other. If all that is discounted,
except where there is independent evidence in support of it,
then nothing remains in this case.
So, the Supreme Court could ’save’ the prosecution only
by reversing the Kalpanath Rai judgment, and it has done so.
The other very unsatisfactory aspect of the judgment is
the assessment of voluntariness. The TADA allows a
confession given to a police officer of a rank not less than that
of a Superintendent of Police to be admitted in evidence, but
the general principle that the confession must be voluntary in
order to be believed remains intact. As in the Kartar Singh
case, the Supreme Court said that the test of voluntariness is
the same for TADA confessions as for normal confessions.
It is here that the Supreme Court has slipped up badly in
the Rajiv Gandhi case. There is absolutely no assessment
about voluntariness. None of the principles laid down in a
long line of earlier cases has been followed. It has been held
that if the confession is made after a long time in police
custody, the accused should be sent to jail custody for at least
a day or two and only then the confession should be
recorded. And that after the confession, the accused must not
spend any more time in police custody but should be
immediately taken to court and from there remanded to
judicial custody. And so on. There is no application of any of
these principles in the Rajiv Gandhi case.

n
 Of Capital and Other Punishments 83

Capital Punishment Should Go

Q.
W hy are human rights activists in Andhra Pradesh up in
arms against Capital Punishment?

A. It is part of the agenda of human rights organisations all

over the world. All human rights organisations advocate
the abolition of Death Penalty in principle. When the
United Nations drafted the International Covenant on
Civil and Political Rights in 1966, one of the points
incorporated in the draft was that Death Penalty should be
abolished. But that was not agreeable to many countries.
So the relevant provision now reads that death sentence
should be awarded only in rare cases, and that provision
for an application for pardon should be available in all
cases.

Q. The Indian Supreme Court ruled in 1980 in Bachan Singh

Vs Union of India that Capital Punishment should be
awarded only in ‘rarest of rare’ cases. How do you
interpret ’rarest of the rare’?

A. The Supreme Court has till now not laid down any
criterion for deciding whether a given case falls in the

Interview in Deccan Chronicle, 17-1-1997

84 K. Balagopal

category ‘rarest of rare’. The courts are interpreting it case

by case. In the case of Billa and Ranga the criterion was
that they had murdered helpless and innocent children. In
the case of Indira Gandhi’s murderers the reason was that
they had conspired and killed the Prime Minister of the
country. The former may seem reasonable, but the latter is
not. But even in the former case, if the children killed by
Billa and Ranga had been slum-dwellers rather than upper
middle class kids, would the court have reacted in the
same way? We feel that if at all hanging is to be there, and
is to be resorted to in the ‘rarest of rare’ cases, the criterion
should be free from social and political prejudices.
Q. What punishment do you think should be given to those
who perpetuate unpardonable offences?
A. It is a question that is still being debated. What is the
purpose of giving punishments? One popular answer is
that it deters other people from committing crimes. But
research has shown that the deterrent effect of
punishments is slight. Moreover it seems unfair that one
person is punished so that others may be prevented from
committing crimes. How is this person answerable or
responsible for the crimes that others may commit in
future? The other answer usually given is that if crimes go
unpunished, the moral outrage that society feels at the
commission of a crime remains un-assuaged. To assuage
or answer this moral outrage, crimes must be punished.
But this ‘moral outrage’ appears to be nothing short of a
collective desire for revenge. We put ourselves in the shoes
of the crime’s victim, and collectively seek revenge. But
when we consider that private revenge as the sanction of
penal law is regarded as uncivilised and unacceptable in
modern societies, is this collective revenge acceptable?
Does it cease to be uncivilised merely because it is clothed
 Of Capital and Other Punishments 85

in the expression ‘moral outrage’? This is an ongoing

debate. There are no easy answers. But when we seek
punishment for what you have called ‘unpardonable
offences’, we should be clearly aware whether we are
seeking revenge or justice. That is the cardinal distinction.
Q. Can you explain why you are totally opposed to Death
Penalty?
A. Death Penalty is a tit for tat punishment. It says: ‘Because
you have killed, you must die’. Such logic was
characteristic of punishments in a stage of history in which
punishment was nothing but revenge. But once we start
looking at punishments not from the point of view of
revenge but of justice, this tit for tat logic loses its
legitimacy. Today a person who is convicted of setting fire
to somebody else’s house is not punished by having his
own house set on fire. He is sent to jail or fined. A person
who kidnaps somebody else’s child is not deprived of his
own child. Why, then, should an exception be made in the
case of murder? Why should the last vestiges of the tit for
tat logic of punishment be retained in the form of the
Death Penalty?
There is a more important reason. For every crime that is
committed, society carries some responsibility, as well as
the individual who has committed it. Society has created
the conditions that impel or motivate the person to
commit the crime. It is therefore partly responsible for it,
along with the individual who has intentionally taken the
decision to commit the offence. Punishment, therefore,
should not hold the individual fully responsible for the
crime. This is precisely what Death Penalty does. It holds
the murderer 100 per cent responsible for the murder.
Q. Your petition for condoning death sentence of Chalapathi
86 K. Balagopal

Rao and Vijayavardhana Rao, who have been convicted

for burning to death 23 passengers in a bus at
Chilakaluripeta has been rejected by Governor Krishan
Kant. Is he empowered to condone a person waiting for
the gallows?

A. He is empowered under Article 161 of the Constitution of

India. The President is empowered under Article 72.
Another petition is pending now before the President of
India.

We have also filed a writ petition challenging the fairness

of the trial of the two convicts. They did not have a lawyer
in the pre-trial stage. A judgment of the Supreme Court
given by Justice Bhagavathi in a Bihar case says that “legal
aid from the moment a person is first produced in court is
a fundamental right, and is part and parcel of fair
procedure.”

Q. There are some civil liberties activists who feel that the
court judgements are prejudicial if an accused happens to
be a dalit. What is your view?

A. Nobody is beyond mistakes and prejudices. Just as

mistakes in judicial pronouncements can stem from
logical or interpretative error, judgements can also be
affected by social prejudices and the worldview of the
judge, which may well be affected by the caste of the
person. However, we are opposed to the Death Penalty in
principle, irrespective of the caste of the condemned
person. We will also fight for the accused in the Tsundur
massacre of dalits, who are all from forward castes, in case
they are condemned to death, which is however quite
unlikely.
 Of Capital and Other Punishments 87

Q. What is your action plan to achieve your objective?

A. As far as the Chilakaluripeta case is concerned, I have
already said that a mercy petition is pending with the
President and a writ petition in the Supreme Court. In the
meanwhile, we are undertaking a campaign to educate the
people about this case, as well as Death Penalty in general.
After all, 55 countries have completely abolished the
Death Penalty. That includes some Third World countries
also and not merely the developed nations. And there are
37 countries where Death Penalty is not being imposed for
several decades, though it is on the statute books.