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| 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.)
