Judgment

O. CHINNAPPA REDDY, J. :- "The murderer has killed. It is wrong to kill. Let us kill the murderer." That was how a Mr. Bonsell of Manchester (quoted by Arthur Koestler in his Drinkers of Infinity), in a letter to the Press, neatly summed up the paradox and the pathology of the Death Penalty. The unsoundness of the rationale of the demand of death for murder has been discussed and exposed by my brother Krishna Iyer, J., in a recent pronouncement in Rajendra Prasad v. State of Uttar Pradesh, Criminal Appeal No. 512 of 1978, D/- 9-2-1979 : (reported in AIR 1979 SC 916) I would like to add an appendix to what has been said there.

2. The dilemma of the Judge in every murder case, "Death or life imprisonment for the murderer?" is the question with which we are faced in this appeal. The very nature of the penalty of death appears to make it imperative that at every suitable opportunity life imprisonment should be preferred to the death penalty. "The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And, it is unique finally in its absolute renunciation of all that is embodied in our concept of humanity" (per Stewart J. in Furman v. Georgia, (1972) 33 Law Ed 2d 346)). "Death is irrevocable; life imprisonment is not. Death, of course, makes rehabilitation impossible; life imprisonment does not" (per Marshall J., in Furman v. Georgia).

3. Theories of punishment, there are many: reformative, preventive, retributive, denunciatory and deterrent. Let us examine which cap fits capital punishment. The reformative theory is irrelevant where death is the punishment since life and not death can reform. The preventive theory is unimportant where the choice is between death and life imprisonment as in India.

4. The retributive theory is incongruous in an era of enlightenment. It is inadequate as a theory since it does not attempt to justify punishment by any beneficial results either to the society or to the persons punished. It is, however, necessary to clear a common misunderstanding that the retributive theory justifies the death penalty. According to the retributivist, society has the right and the duty to vindicate the wrong done to it and it must impose a 966 punishment which fits the crime. It does not mean returning of evil for evil but the righting of a wrong. It implies the imposition of a just but no more than a just penalty and automatically rules out excessive punishment and, therefore, capital punishment. According to a modern exponent of the retributive theory of justice "capital punishment...... is without foundation in a theory of just punishment. Indeed one could go further and assert that capital punishment is antithetical to the purposes and principles of punitive sanctions in the law. Requital, when properly understood in terms of a concept of just law, undoubtedly does have a legitimate role in punishment. However, neither requital nor punishment in general is a returning of evil for evil, and, therefore, I see no support for the demand that a murder (or an act of treason, or some other serious offence) be paid for with a life". The Biblical injunction an eye for an eye and a tooth for a tooth is often quoted as if it was a command to do retributive justice. It was not. Jewish history shows that it was meant to be merciful and set limits to harsh punishments which were imposed earlier including the death penalty for blasphemy. Sabbath breaking, adultery, false prophecy, cursing, striking a parent etc. And, as one abolitionist reminds us, who one may ask, remembers the voice of the other Jew: "Whoever shall smile on thy right cheek, turn to him the other also"?

5. The denunciatory theory of punishment is only a different shade of the retributive theory but from a sternly moral plane. Lord Denning advanced the view before the Royal Com