Death Penalty: Justice or Judicial Murder?

Weighing Morality, Law, and Deterrence in Capital Punishment

IN JURISPRUDENCE, there are four theories for awarding punishment: retributive, deterrent, punitive, and reformative. The death penalty can be justified on the first three grounds.

Many countries have abolished the death penalty, including European countries and Canada. In the USA, some states have abolished it, while others have retained it.

Those against the death penalty argue that there is no good moral reason for our legal system to have capital punishment as an option. They claim it is not a deterrent, lowers the state to the level of a criminal, and can lead to the execution of innocent people due to police fabricating evidence. They consider it a barbaric system of blood for blood.

One such person strongly opposed to the death penalty is my American friend Bill Tammeus, who was my classmate in my school in Allahabad in 1957 or so. He later returned to America, became a journalist in the Kansas City Star, from where he has retired, and is now a part-time preacher in his Presbyterian Church in Kansas City, Missouri.

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

In the Shantiparva of the well-known Indian epic, the Mahabharat, the elderly Bheeshma Pitamah tells his grand-nephew 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 also creates terror in the minds of those who may contemplate such crimes in the future and is thus a deterrent.

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 the 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.

2. In India, many policemen conduct fake ‘encounters,’ that is, instead of sending a suspected criminal for trial before a court of law, they just shoot them dead.

I held that the 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 the 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 and without giving him a hearing.

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.

3. I upheld the death penalty for 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.

4. 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 the 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.

In my article I discussed in detail the judgment of the Madras High Court in Yuvraj v. State, which sentenced eight persons to life imprisonment for murdering a Dalit young man who had fallen in love with a non-Dalit girl in Tamil Nadu.

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

I spoke about this over the phone with 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 based on circumstantial evidence. The only difference between direct and circumstantial evidence is that, in the latter, the prosecution must establish beyond a reasonable doubt the entire chain of circumstances linking the accused to the crime. This had been done in this case, as mentioned in paragraphs 251 and 252 of the High Court’s verdict.

Consider a case where the facts show that a witness saw the accused leaving a room and running away with a bloodstained dagger in hand. If the witness enters the room immediately thereafter and finds a man dead with dagger wounds, it can reasonably be concluded on circumstantial evidence that the accused was the murderer, even though no one directly witnessed the stabbing.

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

In many countries, such as those in Europe and Canada, the death penalty has been abolished.

In India, however, Articles 72(1)(c) and 134, along with entries 1 and 2 in List 3 of the Seventh Schedule of the Constitution, envisage the death penalty. Hence, it cannot be abolished without a constitutional amendment, as stated in Jagmohan v. State, AIR 1973 SC 947.

However, in Bachan Singh v. State of Punjab, AIR 1980 SC 898, the Indian Supreme Court held that the death penalty should only be imposed in the “rarest of rare” cases. The expression “rarest of rare” is vague, but five broad guidelines for interpreting it were laid down by the Supreme Court in Macchi Singh v. State of Punjab, AIR 1983 SC 957.

The first guideline is that if the murder is of an exceptionally brutal nature, and the third is when the victim is from a scheduled caste, which arouses social wrath. The cases of the accused in Yuvraj Singh v. State surely fit within these two categories and thus fall under the “rarest of rare” category.

Moreover, in Bhagwan Das v. NCT, AIR 2011 SC 1863, the Supreme Court held that “honour killing” falls within the “rarest of rare” category.

An “honour killing” refers to the killing of a young man from a lower caste because he falls in love with or marries a girl from a higher caste, thereby “dishonouring” the higher caste.

This is a feudal, barbaric practice and must be eradicated by the harsh punishment of the death sentence for the perpetrators. India is currently undergoing a transitional period, moving from a semi-feudal to a modern society. The judiciary must support this process, and one way to do so is by sending a clear message that those who commit the feudal practice of “honour killing” will face the death penalty.

Yuvraj Singh’s case was a clear case of “honour killing,” committed by bigoted individuals in a cold-blooded and horrendous manner, and thus it deserved the death penalty.

Unfortunately, some judges are reluctant to impose the death penalty because they are tender-hearted and feel that they will have blood on their hands if they do so. I told the judge I spoke to that he should learn from Bheeshma Pitamah’s advice to Yudhishthir in the Shantiparva of the Mahabharata.

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

“Mridur hi raja satatam langhyo bhavati sarvashah
Teekshnyat cha udvijate lokah, tasmaat ubhayam aashraya”

i.e.,

“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 will regard him as weak and ignore him.
The king should take care of those who cannot care for 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 the Allahabad High Court in 1991, I carefully read the Shantiparva of the Mahabharata and learned many things that helped me in deciding cases. After all, a judge is performing sovereign functions delegated to him by the king.

Before concluding I would like to add that lynching of Muslims on the pretext they were eating or selling beef, or killing a Muslim just because he was a Muslim should also be regarded in the category of rarest of rare cases, and carry a mandatory death sentence

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