BISHNU DEO SHAW Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) "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.