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PUCL Bulletin, August 2004

Mercy petition for Dhananjay Chatterjee

-- By K.G. Kannabiran, National President, PUCL, 5 July 2004

To
The President,
The Democratic Republic of India
Rashtrapati Bhavan
New Delhi

Mr. President, Sir, We are presenting this memorandum for the pardon and commutation of death sentence into one of life of Dhananjay Chatterjee. The facts are not in dispute. He has been convicted and sentenced to death for the rape and murder of a small girl, which was confirmed by the High Court of Calcutta (now Kolkatta) in the year 1994. The Supreme Court found no reason to revise the order. We read in the papers recently that the Home Ministry at the Centre, advised you, Sir, to reject the mercy petition. West Bengal Government is also unwilling to commute the Sentence. The event itself is so horrendous a death that the event may constitute “the rarest of rare cases” deserving the extreme penalty of death as per the law laid down by the Supreme Court.

We wish to bring to your notice that the validity of death penalty as a punishment was questioned more than once in the Supreme Court. The court held the penalty valid on the ground that for the imposition of death penalty, which is no longer mandatory, reasons have to be furnished as the law stands today. For supporting its ruling that death sentence is a valid penalty, the court evolved the principle of “rarest of rare cases”. It is a major concession to the contention of Human Rights activists that death penalty should be abolished,

Thus, the law laid down by the Apex Court held that death penalty should be imposed occasionally and with weighty reasons. Frequent imposition of death penalty defeats the principle and really calls for the reopening of the debate on the validity of death penalty. In the state of Tamilnadu alone in three cases 30 persons have been sentenced to death. In Rajeev Gandhi murder case the learned trial judge thought that 26 lives deserve extinction on the basis of this principle. In yet another case four persons have been sentenced to death and are awaiting execution. Fortunately, in Rajiv Gandhi murder case only four persons were ultimately sentenced to death. In Jharkhand five persons were sentenced to death and their commutation is pending consideration.

In the Parliament Attack case death sentences against two are pending appeal. If ‘rarest of rare’ cases become frequent we are slowly regressing to the position that death penalty is mandatory where the present normal rule of ‘life sentence’ is becoming an exception. This regression before it becomes a norm, needs a debate. The state cannot assume the role of the Avenger. If the state is allowed the role of an avenger in an iniquitous society like ours, death sentences, if allowed to stay, may be invoked against political dissent. We are against Rule of Law

We know that Dhananjay Chatterjee’s crime is horrendous and he should be punished but not by his execution. Mr. President Sir, we would request you to peruse the Preamble of our Constitution, the Directives and the Fundamental Duties which do delineate the philosophy of our Constitution. The major articulate Premise is “Justice” in the Preamble and the Directives in Part IV of the Constitution. Justice as per the Constitutional value system is a moderating force of all human relationships as also of all institutions under the Constitution in their relationship with the people. The chapter on Duties militates against taking away life. It does lay down that practices derogatory to women must be renounced.

But you do not renounce practices by eliminating now and then one who is violent against a woman. The entire culture treating women as non-persons has to be transformed. By executing the criminal you are not curing the wrong doer for he is not there for being reformed. By executing him, the wrong in cases of capital punishment, is not undone. It is retributive and is an instance of state terror to prevent others from following the course of Dhananjay. This deterrence, history will tell us, never worked. If the attempt of death penalty is to arrive at a balance between good and evil by letting in by the backdoor lex talionis, we are afraid, we are regressing in time. “Is cutting off, by execution, of a life which holds no promise of good,” says Sir Carleton Kemp Allen “any equivalent for the extinction of a life which may have been fruitful and beneficent”.

Not infrequently the Indian Presidential abode is invaded by philosophical questions such as the issue of death penalty. The courts are given the task of examining whether the case falls into the category of ‘rarest of rare cases’ and they do quite often strain their discretion to see that justice does not stifle life. They have no time to enquire into how often they found reasons to sentence people to death. Mr. President, Sir, Your jurisdiction transcends ‘the rarest of rare cases’ jurisdiction of the courts. Hard-core practical men who are not plagued by the philosophical questions you are plagued with advise you Steeped in the political humdrum of daily politics, they have no time to implement constitutional and human values. Sir, we would request you not “to surrender to the blind acquiescence of the familiar”. Please send the file of Dhananjay Chatterjee back and request the Ministry to reconsider its earlier decision and rescind the same.

Another weighty reason for commuting the sentence is the principle, which repeatedly was laid down, by the Apex Court and that is when the convict spends long periods in death row awaiting execution that was considered reason enough for commutation to life. The principle, which courts laid down for themselves, would also govern the discretion of the President while exercising his pardoning power.

We are a human rights organization founded by Lok Nayak Jayaprakash Narayan and as an organization we are against death penalty as a form of punishment for it is very often the poor and the ill defended who get punished. We are also of the view the Constitutional value system and the concept of Democracy do not endorse a life stifling approach to the problems arising in society.

 

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