What is Justice Katju's opinion on death penalty?

Amalendu Upadhyaya
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The death penalty

death penalty

By Justice Markandey Katju

In my article published in hastakshepnews.com I referred in detail to the judgment of the Madras High Court in Yuvraj v State which sentenced 8 persons to life imprisonment for murdering a Dalit young man who had fallen in love with a non dalit girl in Tamilnadu.

While praising the judges who delivered the verdict, I also mentioned that the only flaw in it was that they have awarded life imprisonment, when on the facts of the case they should have imposed the death penalty.

I spoke about this on phone to one of the judges who delivered the judgment. He explained that the reason for not imposing the death penalty was that it was a case of circumstantial, not direct, evidence.

I replied that people have even been hanged on the basis of circumstantial evidence. The only difference between direct and circumstantial evidence is that in the latter the prosecution must establish beyond reasonable doubt the entire chain of circumstances which link the accused with the crime. This had been done in this case, as mentioned in paragraphs 251 and 252 of the verdict of the High Court

Take a case where the facts are that the accused was seen by a witness leaving a room and running away with a dagger covered with blood in his hand. If the witness enters the room immediately thereafter and finds a man dead with dagger wounds, it can reasonably be held on circumstantial evidence that he was the murderer, though there is no direct evidence of anyone seeing the stabbing.

Poisoning cases are all of circumstantial evidence, yet the accused have even been hanged on such evidence, e.g. Frederick Seddon in England

In many countries, e.g. European countries, Canada, etc the death penalty has been abolished. In India, on the other hand, Articles 72(1)(c) and 134, and entries 1 an 2 in List 3 of the Seventh Schedule of the Constitution envisage the death penalty, and hence it cannot be abolished without a constitutional amendment vide Jagmohan v State, AIR 1973 SC 947. However, in Bachan Singh vs State of Punjab AIR 1980 SC 898 the Indian Supreme Court held that death penalty should only be imposed in the 'rarest of rare' cases. The expression 'rarest of rare' is vague, but 5 broad guidelines of interpreting it were laid down by the Supreme Court in Macchi Singh vs State of Punjab, AIR 1983 SC 957, the first being that if the murder is of an exceptionally brutal nature, and the third being where it is of a scheduled caste person which arouses social wrath. The cases of the accused in Yuvraj Singh vs State surely come within these two categories, and hence were of the rarest of rare type.

Moreover, in Bhagwan Das vs NCT, AIR 2011 SC 1863 the Supreme Court held that 'honour killing' comes within the category of rarest of rare. 'Honour killing' means killing of a young man of a lower caste who is killed because he falls in love with or marries a girl of a higher caste ( and thereby 'dishonours' the higher caste ). This is a feudal, barbaric practice, and must be stamped out by the harsh punishment of awarding death sentence on the perpetrators. India is presently passing through a transitional period in its history, from a semi-feudal to a modern society. The judiciary must help in this process, and one way to do it is to send a clear message that the gallows await those who commit the feudal practice of 'honour killing'.

Yuvraj Singh's case was a clear case of 'honour killing' committed by bigoted persons in a cold-blooded, horrendous manner, and so it deserved the death penalty.

Unfortunately, some of our judges are reluctant to impose the death penalty as they are tender-hearted and feel that they will have blood on their hands if they do so. So I told the judge I spoke to that he should learn from Bheeshma Pitamah's advice to Yudhishthir in the Shanti Parva of the Mahabharat.

When the Mahabharat war was over Lord Krishna told Yudhishthir that he was now going to be the king ( since the Kauravas were dead ), and so he should go to Bheeshma Pitamah, who was lying on a bed of arrows, and learn how a king should conduct himself. Among other things, Bheeshma said :

''Mridur hi raja satatam langhyo bhavati sarvashah

Teekshrnyaat cha udvijate lokah, tasmaat ubhayam aashraya "


" If the King is always lenient, nobody pays heed to his orders

And if he is always harsh the people become terrorized

Therefore a King should sometimes be lenient and sometimes harsh ( depending on the circumstances ) "

Bheeshma Pitamah went on to say :

"The King should not always forgive, for then the wicked people shall regard him as weak and ignore him.

The King should take care of people who cannot take care of themselves, e.g. the old and the infirm. and punish the wicked.

O Yudhishthir, I know that by nature you are forgiving and merciful, but the state cannot be governed in this manner ''.

I told the judge that he should follow this advice, and that when I became a Judge of Allahabad High Court in 1991 I carefully read the Shantiparva of the Mahabharat, and learnt many things which helped me in deciding cases. After all, a judge is performing sovereign functions, delegated to him by the king.

(Justice Katju is a former Judge, of the Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)

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