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Report No. 35

VIII. Deterrent and other objects not achieved.

A.-Deterrent effect not achieved

177. Deterrent effect not established.-

The deterrent effect of capital punishment is not established1. In England, very petty offences were previously capital. They are no longer capital2.

1. The topic of deterrent effect will be discussed in detail separately, paras. 303 to 372, infra.

2. Shri Bhupesh Gupta, Rajya Sabha Debates, 25th August, 1961, Col. 1699.

178. Not a unique deterrent.-

The question is, to what extent capital punishment has a greater impact on the mind, compared with life imprisonment. It has not been settled yet, for example, that "90 degrees" of deterrence will be created by imprisonment for life, and "100 degrees" by capital punishment.1

"It is no doubt a deterrent, but we have to see if it is a deterrent which is unique and which cannot be replaced by any other punishment.2"

1. Shri Bhupesh Gupta, Rajya Sabha Debates, 25th August, 1961, Col. 1700.

2. Shri M.L. Agrawal, Lok Sabha Debates, 24th August, 1956, Cols. 4345 to 4388.

179. Crime curve and sentence not interrelated.-

The crime curve and the existence on the Statute Book of the capital punishment are not related in any way. The two things are virtually independent of one another1.

1. Dr. W.S. Barlingay, Rajya Sabha Debates, 25th August, 1961, Col. 1706.

180. If capital punishment had any deterrent value, murders would be less and less, since capital punishment has been on the statute book for many years. The crime curve would be a declining one; but it is not actually so1.

1. Shri Bhupesh Gupta, Rajya Sabha Debates, 25th August, 1961, Col. 1699.

181. Examples of Indian States.-

In the old State of Hyderabad, for the last forty years, no death sentence was executed. Every sentence of death was commuted by the Nizam of Hyderabad; and there had been no instance to show that it required the revival of execution of death sentence in Hyderabad1.

[We understand that in the old State of Hyderabad the death sentence was not executed. In individual cases the Nizam used to commute it to life imprisonment. There were no standing orders in this regard, but individual cases were being considered2.]

In the States of Cochin and Travancore, capital punishment was not in existence for a number of years; the incidence of crime in those years was no higher there than in other parts of India3.

1. Shri V.K. Dhage, Rajya Sabha Debates, 25th August, 1968, Col. 468, top.

2. Based on letter of Government of Andhra Pradesh, dated 27th January, 1966, to the Law Commission.

3. Shri P.N. Nair, Rajya Sabha Debates, 25th May, 1958, Col. 469, top.

182. Examples of other countries.-

Numerous countries have abolished capital punishment, and have not thought of going back to it again1.

"If you drive a motor car and it runs exactly at the same speed whether the brakes are off or on, surely it is an indication that the brakes are not working.2".

In countries where capital punishment has been abolished, the incidence of crimes has not gone up3.

For many crimes which were capital in England previously, the death sentence has been abolished, and yet there has not been any increase in the incidence of those crimes in that country4.

In those countries of Europe where death sentence has been abolished-for example, Austria, Belgium, Denmark, Finland, Iceland, Netherland-and also Norway, Portugal and Sweden-abolition has led not to an increase but to a decrease in homicide5.

1. Dewan Chaman Lao, Rajya Sabha Debates, 25th August, 1961, Cols. 1741.

2. Shri M.L. Agrawal, Lok Sabha Debates, 24th August, 1956, Cols. 4346 to 4388.

3. Shri P.N. Nair, Rajya Sabha Debates, 25th April, 1958, Col. 472.

4. Shri B.K.P. Sinha, Rajya Sabha Debates, 25th April, 1958, Col. 447.

5. Shri Raghunath Singh, Lok Sabha Debates, 21st April, 1962, Cols. 314 and 315 (in Hindi).

183. Experience in India.-

As far as ordinary crimes are concerned, capital punishment has not achieved its objective. Under the British, capital punishment had been used, and yet murders have gone on increasing and dacoity has become in some places the order of the day1.

1. Shri Bhupesh Gupta, Rajya Sabha Debates, 25th April, 1958, Cols. 492 and 493.

184. Crimes committed in excitement.-

The deterrent theory does not hold good, on a close analysis. 70 per cent. of those who go to the gallows are men who had committed the crime in the course of a heated argument, in a fit of insane jealousy, or robbers who, when they were fearful of discovery, unwillingly pulled the trigger and became murderers. When such people commit the crime, they do not think of the consequences.1.

Serious crimes are committed only in a state of mental excitement, and in such a state punishment never acts as a deterrent to such a person2.

"Mostly people get suddenly provoked by passion and without considering the consequences commit murder.3 ".

1. Shri B.K.P. Sinha, Rajya Sabha Debates, 25th April, 1958, Col. 447.

2. Shri Yogendra Jha, Lok Sabha Debates, 1st April, 1962, Col. 352 (Hindi).

3. Shri M.L. Agrawal, Lok Sabha Debates, 24th August, 1956, Cols. 4345 to 4388.

185. The arguments that capital punishment does not deter the various categories of persons who commit homicide can be thus elaborated. Offenders fall into following categories:-

(i) Those who carefully plan a murder or a crime like robbery;-they deliberately plan to avoid detection, and are not therefore influenced by the threat of the death penalty;

(ii) Those who meet the test of the legal defence of insanity; they can never be deterred;

(iii) Those who do not meet such test, but are yet not fully responsible for their actions. They also cannot be restrained by the threat of any punishment;

(iv) Thus, there remains only the normal law-abiding citizens, who would not murder in any case1.

1. Canadian Report, p. 11, para. 36, stating the argument.

186. Infrequency of application.-

Capital punishment is not an effective deterrent. On the planned murder, it has no effect. On the unplanned murder committed in the heat of passion, etc., it has no effect. Further, its effect is weakened by the comparative infrequency of its application due to difficulties of detection, apprehension and conviction, and by the exercise of the power of reprieve after conviction1.

1. Ceylon Report, p. 38 et seq. Summary of Arguments, under " Deterrence".

187. Secrecy of execution.-

There is a contradiction in claiming that the death penalty has a deterrent effect and at the same time surrounding the execution with secrecy1.

1. U.N. Publication (1962), p. 62, para. 229.

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