Markandey
Bill Tammeus and abolition of death penalty
Markandey Katju 27 Apr 2023

Bill Tammeus and abolition of death penalty

Bill Tammeus is an American of about my age ( 77 ) who was my classmate in Boys High School, Allahabad around 1957-58, and we have been in regular touch since then. When he was a boy he had come to India for a couple of years with his father, an agricultural expert, and then went back to USA where he became a journalist in the Kansas City Star ( where the famous writer Hemingway once worked ). Bill later retired, and he is now a preacher in his local Presbyterian Church in Kansas City, Missouri, where he lives.

Bill also writes a blog called Bill's Faith Matters blog, in which he recently wrote :
'' There is no good, moral reason for our legal system to have capital punishment as an option. It isn't a deterrent, it's far more expensive than life in prison, and it lowers the state to the level of the criminal. Beyond that, of course, the system gets it wrong sometimes and innocent people get killed by the state. Let's change this barbaric system of blood for blood ''.
This shows Bill has a tender heart. He is totally opposed to the death penalty, and would like it abolished in America. Though he is a dear friend, 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 who sent 6 million Jews to gas chambers, tyrants like Gen Pinochet who made hundreds of thousands of Chileans 'disappear', serial killers like Ted Bundy, etc.

In 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 '' ( vide Shantiparva of Mahabharat ).
I was a judge in India for 20 years ( in 3 High Courts and in the Supreme Court ) and in some cases awarded the death penalty. I wish to mention 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. 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 Tiwari 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 ( see online ) 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 clashes at all but cold-blooded murders by the police.

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 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 having him declared a terrorist.

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




5. In sentencing an alleged 'godman' Swami Shraddhanand, who was found guilty of burning his wife alive, I differed from a brother judge, Justice Sinha, who wanted a lesser punishment, and insisted that death sentence must be imposed



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



I doubt Bill will change his opinion after reading this. The problem with him is that he is like Yudhishthir, kind, merciful and forgiving by nature, following the Gospel of Jesus Christ, which he preaches in his church, but has never been a man in state authority. I, on the other hand, having been a judge, am made of sterner stuff.

By Justice Markandey Katju, former Judge, Indian Supreme Court


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