Balu Dinesh is a 3rd year student at Kerala Law Academy Law College, Thiruvananthapuram
‘Certainty of law is a legal myth.’ – Jerome Frank The imposition of death penalty is an enigma which has kindled several controversies over decades. Debates over death penalty are still in motion, which is reminiscent of the Hegelian dialectics. However in the current scenario much of the arguments in the debates are inclined against the idea of awarding death penalty to the convict. The United Nations Declaration on Human Rights, 1948 is the sine qua non of the modern civilized world and in it is specifically stated that “no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment.
As a response to this several resolutions and moratoria were adopted in the international community. Among them some are noteworthy. The United Nations Special Rapporteur or extrajudicial summary on arbitrary executions has emphasized that the abolition of capital punishment is most desirable in order to fully to respect the right to life. In December 2007 and 2008 the United Nations General Assembly adopted resolutions 62/149 and 63/168 calling for a moratorium on the use of death penalty. Similar views against death penalty are adopted by European Court of Human Rights and by the United Nations Human Rights Committee. These international resolutions are nothing but a sign of the inclination of the justice system against the idea of awarding death penalty. It is at this juncture that the arguments rebutting the idea of awarding death penalty are to be introspected.
Capital punishment is rather an old idea. The ‘The Code of Hammurabi’, a legal document from ancient Babylonia contained the first known death penalty laws. Under the Code written in the 1700s B.C, 25 crimes were punishable by death. The Hebrew Bible, lays down that an offender should give “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot” and this proposition came to be known as the retributive theory of punishment in modern jurisprudence. Thus the idea of death penalty was based on the popular belief that vengeance emanated from the individual and punishment from God. However, law cannot be static.
We are now living in an era of cultural and technological revolution. Hence the law has to shape itself to adapt to the changing norms of culture in the modern civilized world. Time has come to discard the idea of giving death penalty practiced since the old barbarian era. The fact that 42 countries have abolished death penalty is a testimony to the former statement.
The common arguments against death penalty can be summarized through a simple illustration. “A kills B. If B is executed, will A come back? Will the relatives of A get back the lost happiness? Will the relatives of B who were not involved in the crime get justice?” Hence ‘death for death’ is a deadly weapon which cannot give any justice. The idea of allowing B to reform himself and to make him take the responsibility of maintaining those who were supported by A makes more sense.
When there are lots of such alternatives what is the idea behind the imposition of death penalty? Death penalty attains importance due to its stringent nature. Once executed, it can never be rectified. Justice system can never be infallible. It is the finality which makes the justice system infallible and not the infallibility which makes it final. Hence the justice system can also go wrong in several circumstances.
ARGUMENTS AGAINST DEATH PENALTY
So if a person is executed wrongly, can the same justice machinery bring back his life? The answer is a definite ‘No’ Hence the confidence and glory of the whole machinery of justice relies upon its tolerance and the abolition of death penalty is the first step towards its realization. Timothy Evans Case and the Campden Wonder in the United Kingdom have left stains in the justice system which tempts everyone to rethink about the idea of death penalty. In the words of Jean Jacques Rousseau, one of the pioneers of French Revolution, “In any case, the frequent punishments are a sign of weakness or slackness in the Government. There is no man so bad that he cannot be made good for something. No man should be put to death, even as an example, if he can be left to live without danger to society.” Hence it is the weakness of our civil society that is revealed through death penalty.
It is the acts of a father that influences his son. Similarly, the act of State can also influence the people. When State imposes death penalty it sends a wrong message of retributive temperament to the society. In contrast if the State abolishes death penalty it sends a message of tolerance and teaches the people about the value of life. As per the oft quoted words, “To err is human but to forgive is divine”, the State through abolition of death penalty can make the people more conscientious. Moreover, a doctrine in criminal jurisprudence states that it is the circumstances that make a man, a criminal. Hence a criminal must be allowed to reform himself. Executing him will increase the hatred of the society towards similarly placed people. Thus two wrongs cannot make a right.
It is also noteworthy that the latest studies by Amnesty International reveals that the crime rates in those countries where death penalty is still a legal routine are much higher than in those countries which refrain from imposing death penalty. In India also there were several debates regarding the imposition of death penalty. It was the living legend Justice V. R Krishna Iyer who sparked discussions about death penalty in India in the case of Rajendra Prasad v. State of U.P. Following the cases of Bachan Singh v. State of Punjab, Machhi Singh and other v. State of Punjab and Dhananjoy Chatterjee v. State of West Bengal, the decision “death penalty can be awarded in the rarest of the rare cases and by considering the antecedents, nature and character of the accused” was formulated and is still followed. However, it must be noted that of late, Justice KT Thomas who presided over the bench which awarded death penalty to the accused persons in the Rajiv Gandhi assassination case has said that it was his misfortune to have presided over the bench. Hence a strong wave against the idea of imposing death penalty is blowing from different corners of the world. The law cannot turn a deaf ear to all these reverberations. It is high time that a stable law regarding the imposition of death penalty is framed, as it is said “If we do not maintain justice, justice shall not maintain us”.
 Hegelian dialectics states that it is the continuous clash between two opposing views which lead to the origin of a more mature via media between the two views.
 Article 5, Universal Declaration of human Rights, 1948
 Special representative of Secretary General to examine, monitor, advise and publicly report on human rights problems
 Extrajudicial summary on arbitrary executions: Note by the Secretary General, U N document A/51/457, Oct 1996, Para 145
 In Soering case (1/1989/161/217), judgment, Strasbourg, 7th July 1989, Para 104
 General Comment on Art 6 of the International Covenant on Civil & Political Rights
 JoAnn Bren Guernsey, ‘Death Penalty: Fair Solution or Moral Failure?’, Twenty First Centaury Books, 01-Sept-2009, at P.9
 Timothy John Evans (20 November 1924 – 9 March 1950) was a Welshman accused of murdering his wife and infant daughter at their residence at 10 Rillington Place in Notting Hill, London. In January 1950 Evans was tried and convicted of the murder of his daughter, and he was sentenced to death by hanging. During his trial, Evans had accused his downstairs neighbour, John Christie, of committing the murders. Three years after Evans’s execution, Christie was found to be a serial killer who had murdered a number of other women in the same house, including his own wife. Before his own execution, Christie confessed to murdering Mrs. Evans. An official inquiry concluded in 1966 that Christie had also murdered Evans's daughter, and Evans was granted a posthumous pardon .The case generated much controversy and is acknowledged as a major miscarriage of justice.
 The Campden Wonder is the name given to events surrounding the return of a man thought murdered from the town of Chipping Campden in the 17th century. A servant, his mother and brother were hanged for killing their master. But following the man’s return, it became clear that no murder ever took place despite testimony attesting to the crime by the accused. The story attracted popular attention in England in the years 1660–1662.
 A.I.R 1979 SC 916
 1980 (2) SCC 684
 A.I.R 1983 SC 957
 1994 (2) SCC 220