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Report No. 35

IX. Counter-arguments for abolition (in reply to retentionist arguments)

191. Certainty of punishment better than severity.-

Detection is important. Deterrence by any means can be substituted by detection and prevention1.

1. Shri Bhupesh Gupta, Rajya Sabha Debates, 25th April, 1958, Col. 495.

192. Capital punishment, or the possibility of sentence of death being awarded in a particular case, diminishes, the certainty of punishment and makes the jury unwilling to convict.

193. Abolitionists do not want to take away the right of the State to punish the offenders. They would like to punish those who offend against the State or any person. But the truth is, that because of capital punishment, offenders escape unpunished. Capital punishment "hangs like the Damocles sword on the heads of the Judges.". They dread it, and are afraid to give capital punishment, because they fear so many loopholes are there 1.

When it is abolished, there will be less murders, because everybody will be punished 2.

1. Shri Prithvi Raj Kapoor, Rajya Sabha Debates, 25th April, 1958, Col. 523.

2. Shri Prithvi Raj Kapoor, Rajya Sabha Debates, 25th April, 1958, Col. 524.

194. Sensationalism.-

Existence of capital punishment makes murder trials protracted and sensational, and distorts the administration of justice and renders the dispassionate examination of the evidence more difficult1. "When life is. at hazard in a trial, it sensationalises the whole thing almost unwittingly; the effect on juries, the Bar, the public, the judiciary, I regard as very bad. I think, scientifically, the claim of deterrence is not worth much, Whatever proof there may be in my judgment does not outweigh the social loss due to the inherent sensationalism of a trial for life."2.

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

2. Mr. Justice Felix Frankfurter (USA) cited by Shri M.L. Agrawal, Lok Sabha Debates, 24th August, 1956, Cols. 4345-4388.

195. Juries are unduly swayed in their verdict by fear of death penalty1.

The presence of capital punishment falsifies criminal proceedings, which take on the character of a tragi-comedy. This renders justice uncertain2.

1. Canadian Report, p. 12, para. 41, stating the argument.

2. U.N. Publication (1962), p. 61, para. 224.

196. Better living conditions in other countries.-

The argument that the homicide percentage in other abolitionist countries was low seems to be plausible, but what brought down the incidence of murders there in such countries was not the sentence of death, but better living conditions and training of the emotion and the impulses and proper education1.

1. Shri P.N. Nair, Rajya Sabha Debates, 25th April, 1958, Col. 470.

197. Public opinion.-

Public opinion is divided over the matter; those who argue for abolition, also reflect, to some extent, public opinion1.

1. Shri Bhupesh Gupta, Rajya Sabha Debates, 25th April, 1961, Col. 1698.

198. The argument of public opinion is an irrelevant one. For no social reform, even the Hindu Marriage Act, there was any public opinion. Still, legislation was brought forward, because the leaders who are Members of Parliament are responsible for creating public opinion and for reforming society1.

1. Smt. Savitry Devi Nigam, Rajya Sabha Debates,.-9-1961, Col. 3831.

199. Public opinion is divided on the issue, and is largely uninformed. Practically all specialised studies by experts favour abolition. Parliament should give a lead to public opinion, if abolition is desirable1.

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

200. Opinion of Judges and police officers not conclusive.-

Judges, lawyers and police officers are not in any favourable position to form views, on this question, since they see the murder only after or at the stage of detection of the crime, when his attitude to the possible punishment is likely to be very different from his attitude before or during commission of the crime1.

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

201. Prison Administration.-

Difficulties of prison administration are no argument for retention. The execution of murderers runs counter to the established purpose of the prison administration,-namely the reformation of criminals. Further, advocates of abolition include many experienced prison administrators. Taking of life by the State for economic reasons is counter to universally accepted religious and moral principles1.

1. Ceylon Report, p. 40, et seq., Summary of Arguments under "Prison Administration"

202. Even if the housing of all convicted murderers presented difficulties it would be improper to permit mere administrative considerations to stand in the way of abolition, which is justified on broad grounds of public policy1.

The argument that it is unreasonable to expect the State to feed and clothe convicted murderers for the rest of their lives was met in very forceful language by Professor Goodhart2:-

"There are undoubtedly, serious arguments, which have been advanced against the abolition of capital punishment, but this particular one seems to be wicked and immoral. Are we to kill men and women in cold blood because it is too expensive to maintain a prison in which to house them? If the terrible problem of life or death is to be decided on the basis of pounds, shillings, and pence, then we can have little reason to be proud of our modern civilization.".

1. Canadian Report, p. 12, para. 42, stating the argument.

2. Letter of Professor A.L. Goodhart to the Manchester Guardian, cited in the Woodrow Wyatt "Again the issue of Capital Punishment", Times Magazine, January 8, 1956 reproduced in McClellan, Capital Punishment, (1961), pp. 105-106.

203. Sympathy for victim no justification.-

Sympathy for the victim's family does not justify capital punishment. Death cannot cure a crime or restore the life of the victim. By just "murdering the murderer", we do not show any sympathy for the family of the victim. Nor do we show any sympathy for the person who has been murdered by the State and his family1.

1. Smt. Savitry Devi Nigam, Rajya Sabha Debates, 8th September, 1961, Col. 3832.

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