Bheeshma Pitamah giving advice to Yudhishthir
The death penalty and the advice of Bheeshma Pitamah to Yudhishthir
By Justice Katju
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 of such persons 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 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 like 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:
- 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 https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.thehindu.com/news/national/Treat-honour-killings-as-rarest-of-rare-cases-court/article13883857.ece&ved=2ahUKEwj-3-eS05aLAxVjAjQIHfZHDa4QFnoECCAQAQ&usg=AOvVaw3HlUVRB7piVHvvuZY7l0bUhttps://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://indiankanoon.org/doc/1422914/&ved=2ahUKEwjhm-yE1JaLAxX3ODQIHdHWAEIQFnoECBAQAQ&usg=AOvVaw2ZlvaFiriPiM_JDWBrCO-K
- 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. https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.thehindu.com/news/national/Dowry-killings-deserve-death-penalty-Supreme-Court/article15671293.ece&ved=2ahUKEwj2rqf51JaLAxVZCTQIHVYyOUoQFnoECBsQAQ&usg=AOvVaw3Wq6U2aCxLhQUZR3F1_ewS
- In India, many policemen conduct fake ‘encounters,’ that is, instead of sending a suspected criminal for trial before a court of law, just shoot them dead. 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 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.”
- https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://indiankanoon.org/doc/1979158/&ved=2ahUKEwj_98m_1ZaLAxWTLTQIHYfpMosQFnoECAYQAQ&usg=AOvVaw12AVZ1H2qep1DSxiWXV559
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.
5. 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.
6. 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
In my article published in indicanews.com, I discussed in detail 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 Tamil Nadu.
While praising the judges who delivered the verdict, I also mentioned that the only flaw in it was that they awarded life imprisonment when, on the facts of the case, they should have imposed the death penalty.
I spoke about this on the 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)© and 134, and entries 1 and 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 the death penalty should only be imposed in the ‘rarest of rare’ cases. The expression ‘rarest of rare’ is vague, but 5 broad guidelines for 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 the death sentence to 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 Shantiparva of the Mahabharata. When the Mahabharata 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
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 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 the Allahabad High Court in 1991, I carefully read the Shantiparva of the Mahabharata and learned many things which 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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