Should death penalty be abolished?

Amalendu Upadhyaya
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Should death penalty be abolished?
 Should death penalty be abolished?


By Justice Markandey Katju

In jurisprudence, there are 4 theories for awarding punishment (1) retributive (2) deterrent (2) punitive, and (4) reformative. The death penalty can be justified on the first 3 grounds.

Many countries have abolished the death penalty e.g.European countries, Canada, etc

In USA some states have abolished the death penalty, while others have retained it.

Those who are against the death penalty say there is no good, moral reason for our legal system to have capital punishment as an option. They say that it is not a deterrent, and it lowers the state to the level of a criminal. Also, the system gets it wrong sometimes ( e.g. because sometimes the police fabricates evidence) and thus innocent people get killed by the state. It is a barbaric system of blood for blood.

I regret I cannot agree. I am not a bloodthirsty person, and am ordinarily opposed to the death penalty, but I believe that in some exceptional cases it is absolutely warranted, e.g. for the Nazis that sent six million Jews to gas chambers, tyrants like Gen Pinochet who made hundreds of thousands of Chileans ‘disappear’, serial killers like Ted Bundy, and in exceptionally brutal, cold blooded murdeers.

In the well-known Indian epic, the Mahabharat, the elderly Bheeshma Pitamah tells his grandnephew Yudhishthir, who is about to become the king: “O Yudhishthir, I know that you are merciful and forgiving by nature, but the government cannot be conducted in this manner. You must sometimes be firm, and award harsh punishment in appropriate cases.”

I was a judge in India for 20 years (in three High Courts and later in the Supreme Court ) and in some cases I awarded the death penalty. I wish to mention some of these here.

1. There is a phenomenon called ‘honour killing’ in many parts of India. If a girl falls in love and marries, or wants to marry, a boy of a different caste or religion, sometimes both are brutally killed by relatives or caste/community members for bringing ‘dishonour’ to the family or caste.

In my opinion this is a barbaric feudal practice, and must be ruthlessly stamped out by awarding the death penalty. This is not only the demand of justice, but it also creates terror in the minds of those who may contemplate such crimes in future, and is thus a deterrent. In a judgment I held that capital punishment must be awarded in such cases.

2. In my judgment in the Supreme Court in Satya Narain Tewari vs State of UP  I said: “The hallmark of a healthy society is the respect it shows to women. Indian society has become a sick society”. In that case, I said that death penalty should be given in cases of dowry deaths.

In India, young married women are often killed by their in-laws – because they did not bring enough dowry from their father – by pouring kerosene on them and setting them on fire or hanging/strangulating them. Our courts have many such cases. This is a barbaric practice, and in my opinion no mercy should be shown to such people.

3. In India many policemen do fake ‘encounters’, that is, instead of sending a suspected criminal for trial before a court of law, just bump him off. I held that death penalty must be awarded to such a policeman, for, instead of upholding the law, he is himself grossly violating it. In Prakash Kadam vs Ramprasad Vishwanath Gupta, 2011, I held that fake encounters by the police are nothing but cold-blooded murders, and those committing them must be given death sentence, treating them in the category of ‘rarest of rare cases’.

In paragraph 26 of that judgment, I said, “Trigger-happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.”

Encounters were widely practised by the Maharashtra Police to deal with the Mumbai underworld, by the Punjab Police against Sikhs demanding Khalistan, and by the Uttar Pradesh Police after Yogi Adityanath became the chief minister in 2017.

The truth is that such 'encounters' are in fact not encounters at all, but cold-blooded murders. Article 21 of the Indian Constitution states, “No person will be deprived of his life or personal liberty except in accordance with the procedure established by law.”

This means that before depriving a person of his life, the state is required to put up that person on trial in accordance with the provisions of the Criminal Procedure Code. In that trial, the accused must be informed of the charges against him, and then given an opportunity to defend himself (through counsel) and only then, if found guilty, can he be convicted and executed. Fake encounters, on the other hand, completely sidestep and circumvent this legal procedure, as they really mean bumping off someone without a trial.

Hence, such encounters are totally unconstitutional. Policemen often justify such 'encounters' by saying that there are some dreaded criminals against whom no one will dare to give evidence, and so the only way to deal with them is by fake encounters. The problem, however, is that this is a dangerous philosophy, and can be misused. For instance, if a businessman wants to eliminate a rival businessman, he can give a bribe to some unscrupulous policemen to bump off that rival in a fake encounter after declaring him a terrorist.

4. I upheld the death penalty on Surendra Koli who used to lure young girls into his house, strangle them, have sex with their bodies, chop them up, and cook and eat their flesh.

5. In sentencing to death an alleged ‘godman’ Swami Shraddhanand, who was found guilty of burying his wife alive in Bengaluru, I differed from a brother judge, Justice SB Sinha, who wanted a lesser punishment (life sentence).

In my judgment, (which is from para 102 onwards), I referred to Article 72 of the Indian Constitution which envisages the death penalty, and said that only Parliament can abolish it, not Courts.

The matter was referred by the Chief Justice of India to a larger bench which disagreed with me, and gave a life sentence, but with no possibility of parole.

The problem with people who demand abolition of the death penalty is that like Yudhishthir they are kind, merciful and forgiving by nature, and have never been in state authority.

I, on the other hand, having been a judge, am made of sterner stuff, like Bheeshma Pitamah

(Justice Katju is a retired judge of the Supreme Court of India. These are his personal views.)

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