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Report No. 35

246. Arguments for abolition (advanced in the set out replies).-

The arguments which have been put forward in the replies received on this question, may now be set out. So far as those who have supported total abolition are concerned, one contention advanced is that there is always a possibility that an innocent person may be hanged. It is stated, that the conviction is based on the oral testimony of witnesses to the occurrence or on circumstantial evidence and the appreciation thereof by a human judge.

The evidence, it is contended, may be tainted by so many factors, and these may be coupled with the inefficiency or want of resources of the accused; and, further, the investigation might have been coloured by corruption and malpractice. It is pointed out, that in several cases, the Privy Council or the Supreme Court has set aside sentences of death even after confirmation by the High Court, and it is argued, persons who do not command talent or ability for taking their case to the highest Court would still suffer.

247. Further, it is argued that capital punishment is a serious blot on our civilization, that in the last 200 years tremendous change has taken place in the attitude towards capital punishment; that many offences which were capital in England in the 19th Century have now ceased to be capital1; that many countries in Europe have abolished capital punishment and many States in America have also abolished capital punishment, and that the people of India with ahimsa should have abolished the death sentence long ago.

1. The replies were received before the Murder (Abolition of Death Penalty) Act, 1965, became law.

248. It is also stated, that there are so many aspects, namely, biological, social, psychological, economic, educational and moral, to the problem, and that social problems should be tackled at the roots rather than in their symptoms. It is pointed out, that modern concepts of criminology and penology rightly demand a fundamental re-construction and radical re-orientation of the existing penal system. It is also stated, that society is not so far advanced that it can demand the life of another being, whatever crime he might have committed. The deterrent effect of capital punishment has been questioned also1.

1. Detailed-treatment of deterrent effect falls under Question 2(b); see paras. 334-369, infra.

249. The reply of a State Government1 tries to meet the arguments usually advanced for abolition. First, the argument that life is a gift of the creator is met by stating that the abstract theoretical doctrine that human life is sacred will work hardship if applied to a class of persons who consider life of human being not so sacred; secondly, the argument that retaliation is not a defensible basis for a penal system is met by stating, that the dominant idea of penology of imposing death sentence is the deterrent idea, and that capital punishment is intended to serve, and in most cases does really serve, as a deterrent.

It is also stated, that the consciousness of the general public that certain kinds of offences are punished with death itself gives security to the general public to move about freely. Thirdly, the argument that the death penalty is unjust and inhuman is noted; the reply states that punishment is evolved for the maintenance of security and peace for the citizens in general, and what kind of offences should be met with death penalty should be determined at a given time and place having regard to the state of development of citizens and their requirements for maintaining security and safety.

1. S. No. 574.

250. One of the replies1 states, that society is not so far advanced that it can demand the life of another human being, whatever he may have done. Further, there is always the risk of an innocent man being hanged.

1. S. No. 161(ii).

251. Another reply1 states, that capital punishment neither deters the criminal nor achieves the object of rendering justice; that family feuds are carried on to such a length that murders take place in the concerned families in coming generations as a matter of retribution; that it is based on the old principles "tooth for tooth", and on the assumption that man cannot be cured. Since its deterrent object is not achieved, the reply favours abolition.

1. S. No. 255.

252. Another reply1 points out, that studies conducted in foreign countries reveal that the assumption that a person who has once committed a murder will again commit a serious crime is not warranted2. Again, it is stated, if it is assumed that a person who has once committed a murder has a proclivity to repeat the same or similar offences, and thus constitutes threat to human being, that must be equally true in the case of a person who has at any time committed any act of violence.

Unassailable evidence, it is urged, is still lacking to show that fear of punishment is the dominant factor which dissuades human beings from committing socially forbidden acts. History of punishment in the middle ages in Europe shows that the increase in the number of capital offences did not produce the expected result. It is also emphasised, that the spectacle of the State taking away the life by judicial killing tends to produce just the result contrary to what is intended.

It is also stated, that criminals are of three classes, those who commit murder as a result of defective personality or highly unfortunate social environment; those swayed by extreme passion; and those who commit premeditated murders. In the first two cases, the deterrent effect of death penalty is very negligible, while, as regards the last case, it is very seldom that criminals carry with them firearms and deadly weapons during their adventure so far as India is concerned. It is also stated, that the assumption that the fear of penalty deters them from carrying weapons should be tested by facts.

The statistical analysis made by the Royal Commission3 is referred to in order to show that in countries like Norway, Sweden, Italy, etc., the homicide rate has not been affected by abolition. The example of Travancore-Cochin is also cited. It is also stated, that public opinion may not be easy to ascertain in the matter of abolition or retention, and further, that public opinion always fluctuates with current events. Moreover, it is not based on rational grounds4.

1. S. No. 304 (A University Professor).

2. R.C. Report, p. 228, cited.

3. R.C. Report, Appendix 6, cited.

4. Cowers Life for Life, p. 136, cited.

253. Another reply1 emphasises the reformative aspect of punishment, which, it is stated, is wanting in our penology. The chances of error, and the futility of capital punishment as a deterrent, are also put forth as grounds of abolition.

1. S. No. 305.

254. Dr. Katju, in an article1, made these points:-

1. Article in Statesman, December 19, 1961, "To Hang or not to Hang", Enclosure to S. No. 315.

"The public conscience is said to revolt against the death penalty, and the fear of a miscarriage of justice and of an innocent person being hanged is ever present.

"I know of one case reported in the Calcutta High Court Law Reports where an old man was accused of murdering a young girl and then doing away with her body. He protested his innocence. He was however tried, found guilty, sentenced to death and hanged. Two years later the young girl returned to her village home and said that she had just run away out of sheer terror.

"During the past 12 years between ten and eleven thousand people have been accused of murder each year all over India. There were protracted trials and numerous acquittals, about 72-75 per cent. by Sessions Judges; later, another 15 per cent. were acquitted by the High Courts on appeal. And then many of those convicted escaped the extreme penalty by the exercise of the prerogative of mercy by State Governments and by the President of India. Ultimately, only a small number-between 100 and 150-go to the gallows every year.

"This aspect of the situation requires very careful consideration. Every case involving the death sentence causes numerous difficulties for the investigating authorities and the courts concerned. Every one is conscious throughout the duration of the-ease that a human life is at stake, and the accused gets the benefits of even the slenderest doubt. This attitude is based upon purely humanitarian consideration right upto the President of India.

"Those who support capital punishment stress its deterrent effect and say its abolition will probably lead to a larger number of murders, but the answer is that if out of 10,000 to 15,000 people accused of murder you punish with death only 125 or 150 in a year, it appears that the phrase 'deterrent effect' has no real meaning. Further more, the vast majority of these murders are committed in the spur of the moment without any premeditation and the murderers seldom reflect that by their action they are running the danger of being sentenced to death.

"In death sentence cases, from the Magistrates up to the High Court, the inconvenience, waste of time, waste of effort and waste of money and human energy is indescribable, and often guilty people escape.

"The problem is a perplexing one. I have, however, come to the conclusion, after considerable experience in many spheres of administrative and judicial activity, that it may be worthwhile abolishing the death penalty, at least as a temporary measure throughout India. If mischievous results do not follow, then a good day will have dawned in India with the extinction of capital punishment. The law courts and all administrative agencies and authorities up to the President of India will have a sigh of relief. The administration of justice in all cases will also become a sure proposition, and there will be fewer acquittals in murder cases.".

255. Another reply1 summarises the argument thus:-

1. S. No. 479 [A leading Theosophist and a society of Theosophists) under Q. 2(b)].

'We do not consider that the death sentence acts as a deterrent, for the various reasons enumerated below:

(i) Belgium, Finland, Norway, Sweden, Switzerland, New Zealand and many states of the U.S.A. have either abolished capital punishment or allowed it to fall into disuse. Their statistics not only show no increase in the homicidal rate but also indicate decrease in many cases. On the contrary, life sentences and long imprisonment have proved more deterrent.

(ii) The police would do their duty better without the fear of having to bring a man to the gallows.

(iii) Juries would do their duties better. Decent and intelligent men avoid serving on juries of murder trials, since they shrink from shedding the blood of a fellow being.

(iv) Administration of law would be speedier.

(v) There would be less corruption in courts.

(vi) Executioners and others concerned suffer from the degrading and brutalising effect of such work.

(vii) Witnesses and readers of executions feel a brutalising and hardening influence.

(viii) The criminal is deprived of the chance of reform.'

(ix) The nature of the punishment is due to a barbaric tendency as an outcome of ignorance of man's nature and of what happens to him when he is violently thrown out of his body.

(x) It is immoral. The erring ones are infected in the moral plane. Why murder them when we do not murder diseased people who also are a menace to society? Why not cure morally ill?

(xi) Justice might be miscarried and the innocent slaughtered. Such cases do happen and are on record.

(xii) The wrong done by the murder is not righted by another murder, since by this method the victim is not brought back to life.

(xiii) The criminal is like a delinquent child and requires intelligent guidance. We do not kill naughty children but guide and educate them to behave better.

(xiv) Sometimes the accused is like an insane person. We do not kill insane people but endeavour to rehabilitate them. Why kill a criminal for manifesting his mental aberrations?

(xv) "Thou shalt not kill " is one of the commandments of Jesus. This is a universal ethical injunction based on metaphysical philosophy and reflected in all spiritual traditions.

(xvi) "Kill not-for Pity's sake-and lest you slay the meanest thing upon its upward way". Thus spoke Lord Buddha in enunciating the Panchasila. Not without reason did he adjure his hearers so".

256. On the other hand, those who have favoured total retention emphasise that the time is not yet ripe in India for abolition of capital punishment. The law and order situation obtaining in the country has been referred to as justifying its retention. It is also pointed out, that in most progressive countries in the world, the average citizen is well informed and conscious of his duty to society and has a healthy outlook on life, and does no lose his balance except under provocation, while in India, because of lack of education and proper social outlook, people are easily upset emotionally and, (in such uncontrolled state), are a grave menace to society. The deterrent effect of capital punishment has been strongly emphasised1.

1. Detailed discussion as to the deterrent effect falls under Q. 2(b). See paras. 334-369, infra.

257. In the reply of the Chief Justice of a High Court1 it has been stated, that a cold, calculated and brutal murderer cannot be equated with a murderer committing the crime in the heat of passion and other extenuating circumstances. In the former case, the reply states, the only befitting sentence is the sentence of death.

1. S. No. 393, reply to question 2(a).

258. The reply of a High Court Judge1, who has had extensive experience in the Court of Session also, states that the existing law sufficiently achieves the deterrent object, i.e., the object of preventing other persons from committing serious crimes.

1. S. No. 396, reply to question 2(a).

259. In reply of a District Bar Association in Madhya Pradesh1, it has been emphasized, that in many parts of the country the people are very backward and are temperamentally very rash. Prices of land and food products are going high; disputes about possession of lands are increasing in great number; and gundas are actually hired for obtaining forcible possession of property. The incidence of murder due to political rivalry is also increasing. It is, therefore, stated that abolition will be a great risk.

1. S. No. 426.

260. An eminent public man1, who had had rich and varied experience of criminal law, and who has held very high public offices, has expressed himself strongly against abolition, in these words:-

"The deterrent effect of the well known and universally dreaded sentence of hanging is not to be measured by statistics of cases. The wicked and reckless thoughts of angry or greedy man to do away with a human obstruction in his way do not take active shape because of the universally known law that killing means hanging of the offender. Many a murder ends only with the thought of it. These do not come to be numbered. If this death sentence is abolished, hundreds of angry and foolish minds would take the chance of 15 years in jail much more readily than they do now. And the motives for such crime are increasing these days, and jail life has lost most of its terrors.

"I therefore am clearly of opinion that judges should take the motive and the distress of the offender into account and be free to deal with the convicted offender; but the death penalty should be there for suitable cases so that men may abstain from killing on account of the dread of the death sentence.".

1. S. No. 338.

261. Those who have favoured partial retention, have emphasised the unjustifiability of capital punishment, except for brutal crimes, and have argued for liberalisation of extenuating circumstances. Some of them would like to abolish the death penalty except for waging war or treason. Some would suggest adoption of a law similar to the (English) Homicide Act, 19571.

One of the suggestions is for retaining the death sentence only for waging war and treason2:

Another reply suggests3, that the sentence of death should be retained for offences under sections 194, Indian Penal Code and for offences under section 302, Indian Penal Code only if attendant with very cruel circumstances, and offences under section 396, Indian Penal Code only if attendant with very cruel circumstances. Examples of cruel circumstances given are-murder by burning, murder by cutting to pieces, and murder by taking the victim unawares.

Another reply states4, that the imposition of death sentence in a few selected cases of gruesome, premeditated, cold-blooded and ghastly murders did act as a deterrent, and that, capital punishment is found effective at some notorious places with some classes of people. The reply also suggests, that the sentence of death should be retained for offences under sections 121, 132, 302, 303 and 396, Indian Penal Code.

Another reply5, while stating that capital punishment is found to be effective at a particular place and with some people only, seems to contemplate that it should be reserved for murders of a heinous character committed after planning and cold calculations, and that it should be abolished for the offence under section 307, Indian Penal Code.

The reply of a High Court Judge6 states, that so far as murder is concerned, the sentence of death should not ordinarily be imposed unless there are aggravating circumstances on record, by reason of which the Judge considers it proper to award the extreme penalty. Examples of aggravating circumstances given in the Reply are-enormity of the crime (cold-blooded and premeditated), unnecessary brutality, murder by a life convict, murder with dacoity, etc.

Another reply7 suggests that capital punishment be retained only for waging war and abatement of mutiny.

1. The replies were received before the passing of the Murder (Abolition of Death Penalty) Act, 1965.

2. S. No. 206.

3. S. No. 237 (Member of a State Legislature) under Questions 3(a) and 7(b).

4. S. No. 376 (A City Civil Court Judge, who has experience as Sessions Judge in several districts).

5. S. No. 380 (a) a City Civil & Sessions Judge, reply under questions 3(a) and 6(b).

6. S. No. 397 (a High Court Judge) in reply to questions 1, 3(e) and 6(a).

7. S. No. 459 (a District & Sessions Judge) in reply to questions 1 and 2(a).

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