Author: Tanya Raj

Introduction:-For man to be able to live in a society there must be laws that govern man. If these laws cease to exist, then there will be chaos. This concept of law has drawn the attention of different scholars over time, such as Plato, Aristotle, The Stoics, Aquinas, to mention but a few.

Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. Immanuel Kant says that this question cannot be answered from the empirical point of view, rather from the metaphysical arena. Kant says “like the wooden head in Phedrus fable, is a head that may be beautiful but alas! Has no brains”.

For Jeremy Bentham and his disciple Austin, say law is essentially a command backed by sanction or the threat of punishment, which implies that anybody who is able to issue a command and is able to back it up with the threat of punishment has, ipso facto, made a law!

Now, all these definitions lacked one thing and that is the essential feature of law. If we agree with Justice Holmes and say it is a sanction, then we begin to see law as prediction, a systematized prediction as to what would happen to a person (sanction) if he does a given thing that is forbidden. But sanction is only an appendage of law, hence the only feature of law is obligation; this obligation is gotten from natural law. This brings us to see that talking about legal philosophy with the exclusion of Aquinas would be disastrous, as we see the idea of natural law, which he formulated being in play here.

Aquinas is an important figure in the philosophy of law and cannot be left out; this would bring us to understanding his idea of natural law. Natural Law is a moral theory of jurisprudence, which maintains that law should be based on morality and ethics. Natural Law holds that the law is based on what’s “correct.” Natural Law is “discovered” by humans through the use of reason and choosing between good and evil. Therefore, Natural Law finds its power in discovering certain universal standards in morality and ethics.

It is worthy of note that Aquinas was not the first to approach this idea of natural law; this shows that this concept of natural law is as old as Western philosophy. The Sophists made a distinction between laws of the State and nature, but placed laws of nature on higher priority over laws of the State. They said laws of the State must conform to laws of nature. In other words the laws of nature are the ideal. The laws of the State make men do things that are unnatural. The laws of nature make no distinction between Greeks and barbarians rather the laws of the State would.

Plato was one of the founders of philosophy of law and natural law doctrine. For him, laws are only necessary when reason fails, for the law of reason is the ideal law. This clearly shows he is the originator of the natural law which sees the law of nature as law of reason. Plato condemns positive laws which are only used when men are weak; he says thus that if men are perfectly rational and ready to submit to the law of reason, there would be no need for positive laws.

Now, the idea of Aristotle follows from that of his master, Plato. He makes use of the law of reason. Teleologically, there is always some end to natural phenomena. By studying a thing we come to know what it is intended for by nature. Each being has its own proper end intended for it by nature. What Aristotle has in mind is to bring natural law to this idea. That is natural law is nothing else than this “intention” of nature of things expressed through the natural tendency of things.  And for the Stoics, their natural law was indifferent to the divine or natural source of the law.


Death Penalty: An analysis



Death as a penalty servesa deterrent as well as retributive form of punishment.The retributive aspect of the punishment is meant to gratify the instinct of revenge or retaliation which exists not merely in the individual wronged, but also by way of sympathetic extension in the society at large. People will not be disposed to resort to private revenge if they can have the offender brought to book and adequately punished for his crime through a court of Law, Punishment of the wrong-doer is the vengeance of the wronged, and this reinforces the faith of the people in the administration of justice. If people can get away after committing serious crimes by being awarded light punishments, it may induce the person wronged and his friends and sympathizers to resort to private vengeance which is not at all desirable for maintaining peace and order in society.In the words of (Salmond) “A society which felt neither anger nor indignation at outrageous conduct would hardly enjoy an effective system of law”, ‘Kant’ considered death as a proper punishment, if the criminal was beyond redemption, ‘Hobbes’ asserted that every man had under the natural order has the right of reprisal for wrongs done to himself or anyone else.Bentham’s theory of penal objectives also provides that pain of offender should be higher than pleasure he enjoys by commission of the crime.

As, Crime has rightly been described an act of warfare against the community touching new depths of lawlessness,the object of imposing deterrent sentences is threefold:

1)      To protect the community against callous criminals for a long time.

2)      To administer as clearly as possible to others tempted to follow them into lawlessness on a war scale if they are brought to and convicted, deterrent punishment will follow, and

3)      To deter criminals who are forced to undergo long-term imprisonment from repeating their criminal acts in future. Even from the point of view of reformative form of punishment “prolonged and indefinite detention is justified not only in the name of prevention but cure. The offender has been regarded in one sense as a patient to be discharged only when he responds to the treatment and can be regarded as safe for the society.

Being a human we consider Life is the most wonderful gift that God gives us. He also gives us the power to do what we wish with that life. We can keep it and guard it, or we can take it away. It follows that murder is the worst crime anyone could ever commit. It is a crime that no one can ever make right because once you take a life away you can never give it back. Penalties exacted from criminals are made to fit the crimes committed. The worst crime possible should therefore receive the worst penalty possible. That penalty is the death penalty. A killer who is a perpetrator of other’s right to live can’t claim to have an inviolable right to live. The focus should be on the mischief flowing from what the criminal has done to his victim and those near and dear to him and greater attention be paid to victim logy and therefore to the retributive aspect of punishment.The Origin of Death Penalty can be traced back to Eighteenth Century B.C. in the Code of King Hammaurabi of Babylon, which codified the death penalty for 25 different crimes.The death penalty was also part of the Fourteenth Century B.C.’s Hittite Code, the SeventhCentury B.C.’s Draconian Code of Athens, which made death the only punishment for all crimes,and the Fifth Century B.C.’s Roman law of the Twelve Tablets. Death sentences were carriedout by such means as crucifixion, drowning, beating to death, burning alive, and impalement.In the Tenth Century A.D., hanging became the usual method of execution in Britain. Bythe 1700s, 222 crimes were punishable by death in Britain, including stealing, cutting down atree, and robbing a rabbit warren. Because of the severity of the punishment of death, manyjuries would not convict defendants if the offense was not serious. This led to reforms ofBritain’s death penalty. From 1823 to 1837, the death penalty was eliminated for over 100 of the222 crimes punishable by death. (Randa, 1997) In the early part of the nineteenth century, many states reduced the number of their capital crimes and built state penitentiaries. In 1834, Pennsylvania became the first state to move executions away from the public eye and carry them out in correctional facilities. In 1846, Michigan became the first state to abolish the death penalty for all crimes except treason. Later, Rhode Island and Wisconsin abolished the death penalty for all crimes. By the end of the century, the world would see the countries of Venezuela, Portugal, Netherlands, Costa Rica, Brazil and Ecuador follow suit (Bohm, 1999 and Schabas, 1997).



The issue of death penalty has been debated, discussed, studied from a prolonged time but till now no conclusion can be drawn about the retention or abolishment of the provision. As above mentioned Death penalty has been a mode of punishment from time immemorial which is practiced for the elimination of criminals and is used as the punishment for the heinous crimes.In many countries the death penalty is dropped and is replaced by life imprisonment.Various countries have different outlook towards crime in different ways. In Arab countries they choose the retributive punishment of “an eye for an eye” others have deterrent punishment. Of late there has been a shift towards restorative and reformist approaches to punishment, including in India. The International movement for the abolition of capital punishment came in vogue only after the Constitution of Universal Declaration of Human Rights, 1948. According to Article 3 of UDHR, imposition of death penalty is in conflict with the ‘Right to Life’ which is the basic human right. The efforts have been made by the General Assembly of United Nations since 1959 towards the promotion of respect for right to life and desirability of abolishing capital punishment. Many international instruments, most notably the International Covenant on Civil and Political Rights prohibit the imposition of Death Penalty. One of the major steps towards achieving the goal of abolishing death penalty is the adoption of second optional protocol to the International Covenant on Civil and Political Rights on 15th Dec. 1989 by the General Assembly with the help of the Human Rights Commission. The optional protocol aims at the abolition of the Death sentence as a punishment. Similarly, a protocol to the American Convention on Human Rights to abolish Death Penalty was concluded in 1990. Recently, in December 2007, the United Nations has introduced a moratoriumon execution with a view to abolish Death Penalty. More than two-third of the countries in the world have now abolished the death penalty in law or practice.In India the present position regarding death sentence is quite a balanced one. But the wide judicial discretion given to the court has resulted into enormously varying judgment, which does not potray a good picture of the justice delivery system. What is needed to be done is that the principle laid down in cases like Bachan Singh or Machhi Singh have to be strictly complied with that is the death penalty must be awarded only in ‘rarest of rare cases’ and for ‘special reasons’Though what constitutes a ‘rarest of rare case’ or ‘special reasons’ has not been answered either by the legislature or by the Supreme Court. However, the application of its principles by the courts to various cases before them has been very uneven, and inconsistent. This has naturally led to the criticism that the jurisprudence suffers from a judge-centric approach, rather than a principles-centric approach. The Supreme Court has itself admitted on several occasions that there is confusion and contradiction in the application of the death penalty. Last year, 14 eminent retired judges wrote to the President, pointing out that the Supreme Court had erroneously given the death penalty to 15 people since 1996, of whom two were hanged. The judges called this “the gravest known miscarriage of justice in the history of crime and punishment in independent India”.

The opinion of Justice Ruth Bader Ginsburg, (U.S. Supreme Court) targeting the Indian Legal system based on the political power, “I have yet to see a death case among the dozen coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial… People who are well represented at trial do not get the death penalty.” Just over four years ago, AjmalKasab walked into Mumbai’s ChatrapatiShivaji Terminus railway station and ‘waged war with India’. He reportedly told police he wanted to replicate 9/11 in India. He was prosecuted, convicted and, on 21 November, executed by the Indian Government. Many death row convicts signed a petition that was presented to the President of India under Article 72 of the Constitution that appealed to his power to grant mercy to a convict after the Supreme Court has confirmed the death sentence. As an appeal for mercy, the petition did not rely on substantive legal grounds or due process. The events leading up to the execution strengthen the view that the due process guarantee of the Indian legal system cannot protect prisoners from the lottery based on poverty, class, caste geography and prosecutorial independence that the death penalty continues to be.



Death sentence must fulfill the conditions for protection of human rights in Criminal Justice Administration in India. In European countries the agitation against capital punishment started with criminologists Jeremy Bentham and J.S. Mill’s writings for due punishment; who maintained that punishment must be just, adequate, fair, reasonable and proportionate to the crime to achieve the goal and should never be excessive.

The execution of death row prisoners in India might have come to a near standstill, with only one in the last decade, and another recently. Yet, the frequency of confirmation of death sentences by the Supreme Court has created a large pool of death row prisoners in the country, who may be living between life and death constantly for many years, till the executive decides on their mercy petitions. When the Supreme Court time and again admits that many of these prisoners might have been sentenced on the basis of erroneous legal precedents set by it, the executive cannot pretend to be unconcerned.Due to arbitrary and discriminatory decisions and unjust procedures, basic rights of accused are violated in inhuman and brutal manner which are not only contrary to the National Human Rights principles envisaged in the Constitution but also contrary to the Universal Human Rights ethos. In order to serve as a just and effective mechanism for administration of justice to all sections of society, law should be nourished by and nurtured in human rights.