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Report No. 35

Topic Number 19

Arguments for abolition considered

262. Arguments to be counter-balanced against each other.-

We have carefully considered these arguments. The arguments for and against have to be counter-balanced against each other. Ultimately, the question must be decided on the total result of such counter-balancing. No single argument for abolition or retention can decide the issue. But, in arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind1.

1. This would show the importance of the deterrent object of the capital punishment and of a consideration of that question.

263. Conclusion regarding abolition or retention.-

It is difficult to rule out the validity of, or to deny the strength behind, many of the arguments for abolition. Nor do we treat lightly the argument of irrevocability of the sentence of death, or the need for a modern approach, or the severity of capital punishment or the strong feeling shown by certain sections of public opinion, in stressing deeper questions of human values.

Having regard, however, to the conditions in India, to the variety of the social up-bringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, we do not think that the country can risk the experiment of abolition of capital punishment. The figures of homicide during the several years in India have not shown any marked decline1.

The rate of homicide per million of the population is considerably higher in India than in many of the countries where capital punishment has been abolished2. There are many parts of the country where a wave of crime shoots up occasionally. In many States, there are districts which are notoriously criminal. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area in this context, and similarly, even if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts.

1. The figures of homicide are given elsewhere.

2. See paras. 314-316, infra.

264. The suggestion that death penalty may be abolished as an experiment (so that it can be re-introduced after abolition) is an argument to which we have given our thoughtful attention; but we have to take note of certain possibilities. Between abolition and re-introduction may intervene an era of violence-we do not say that this is a certain consequence-but it is a possibility which cannot be ignored. Irreparable harm would then have been done not only to the victims of such violence, but to the general cause of security of the society.

Once the forces of lawlessness are let loose, re-introduction of capital punishment may not have the desired effect of restoring law and order immediately. Further, Parliament may not be sitting all the time, and the interval that might elapse before the law is again actually amended would prove disastrous. On a consideration of all the issues involved, we are of the opinion that capital punishment should be retained in the present state of the country.

265. Arguments for abolition considered in detail.-

We state below, briefly, our views as to the main arguments that have been advanced in favour of abolition:-

(1) General.-The general argument against capital punishment, that it is a legalised, revengeful and cruel destruction of human beings, really attempts to summarise so many facts of this big question. In the final analysis, capital punishment is a question of values, or rather, of the balancing of values, and the detailed discussion of each argument, that follows, is only intended to show the relative importance of each.

(2) Immoral.-That the taking of life by the State is not morally justified, is an argument which could perhaps be answered by drawing attention to the ends for which the State so takes life. One of those ends is the very protection of human life, by protecting the individual and by protecting the society.

(3) Inhuman.-To some extent, the argument that the penalty of death is inhuman1 is connected with the mode of execution. However, all punishments comprise suffering. In fact, the very concept of punishment implies suffering. It is true that capital punishment is different in quality from all other punishments, and to that extent, the question as to its justifiability assumes greater importance than questions as to the justification for any other punishment.

(4) Non-violence of Indian tradition.-Stress has been laid on the principle of non-violence as requiring the abolition of death penalty. But it must be remembered, that non-violence is an "ideal", and practical (difficulties have to be borne in mind in determining how far the action of the State and the policy of the law should conform to that ideal. All punishments imply suffering, and (excepting pecuniary punishments), all the usual punishments imply some degree of violence to the person.

Moreover, protection of the society from violence is an object of punishment (and particularly, of capital punishment); and the retention of capital punishment, far from being inconsistent with the doctrine of non-violence, actually promotes it. Opinions may, of course, differ as to whether the particularly, of capital punishment); and the retention law and order is desirable, and, so many aspects of the question have to be considered before a decision can be reached on the subject. It cannot, however, be asserted, that non-violence requires the abolition of the death penalty irrespective of other practical considerations.

(5) Irrevocability.-This has been dealt with separately2.

(6) Human Freedom.-This is a fundamental question concerning all punishments. If an offender is not a free agent, then no punishment is justified. The argument would take away the very basis for all punishments. It may also be pointed out, that where the circumstances show that the volition of the offender was affected, the Courts in India are free to discriminate in respect of punishments.

(7) Morbid.-Executions as such are not given much publicity in India, and, therefore, every execution may not lead to violence in its wake.

(8) Mockery.-It is stated that hanging is a mockery of punishment and that it is the officers who look guilty and feel ashamed. There is, however, no evidence to show that this is so.

(9) Injury to family.-That the sentence of death causes injury to persons who have no part in the crime, i.e., the family of the victim, is a factual proposition, which it will be useless to deny. In all punishments, there is some suffering to the members, though, no doubt, death causes more suffering than any other punishment. How far that consideration should be taken into account is a question of values.

(10) Unequal.-That persons who have no sufficient financial means, or who for some other reason, cannot fight the case to the last, suffer, and that the law proves to be unjust to them, is an argument which concerns the subject of legal aid rather than the substantive penal law3.

(11) Jury system.-Whether it would be better to leave the discretion as to the sentence to the Judge or to the jury is a matter on which conflicting views have been expressed4. So far as India is concerned, however, experience of the working of the present system, under which the question of sentence is left to the Judge, has not shown the system to be faulty in this respect.

(12-17) Deterrent effect.-The various arguments connected with deterrent effect of capital punishment need not be dealt with here5.

(18) Retributive object.-The retributive object of capital punishment has been the subject-matter of sharp attack at the hands of the abolitionists. We appreciate that many persons would regard the instinct of revenge as barbarous. How far it should form part of the penal philosophy in modern times will always remain a matter of controversy. No useful purpose will be served by a discussion as to whether the instinct of retribution is or is not commendable. The fact remains, however, that whenever there is a serious crime, the society feels a sense of disapprobation6.

If there is any element of retribution in the law, as administered now, it is not the instinct of the man of jungle, but rather a refined evolution of that instinct-the feeling of special abhorrence of murder. That this feeling prevails in the public is a fact of which notice is to be taken. The law does not encourage it, or exploit it for any undesirable ends. Rather, by reserving the death penalty for murder, and thus visiting this gravest crime with the gravest punishment, the law helps the element of retribution merge into the element of deterrence6.

(19) Eye for an eye.-It will suffice to note that the system of individual revenge is no longer recognised. Social abhorrence is intended to take the place of revenge which would otherwise manifest itself in the persons concerned taking the law into their own hands. Punishment is meted out by the society, and not by the individual, through the organs of society and not by the family of the individual, for the protection of society and not for the vindication of the wronged individual. If the society does not express its abhorrence of the offence of murder by appropriate sentence, there is a danger that individuals may take the law into their own hands, as a large number of cases from the northern part of India will show.

(20) Effect on trial.-It is stated that juries are unwilling to convict in view of the possibility of the sentence of death. Certainty of punishment, it is stated, is thus reduced, thereby affecting deterrent effect of the penalty of death. As to this argument, we wish to point out, that in India, the system of trial of murder and other capital offences is somewhat different from that in Western countries.

"Trial by jury7 is not in force uniformly throughout the country. (In fact, it is practically abolished). Even where it is in force, the final decision by the Court of Session on questions of fact does not entirely rest with the jury, as there are provisions in the Code of Criminal Procedure whereunder, if the Sessions Judge disagrees with the verdict of the jurors or the majority of them, he can refer the matter to the High Court8. Further, the question of sentence is also not left to the jury9. Trained judicial officers, with long experience, are not likely to be influenced by sentimental considerations.

In this connection we may refer to the observations in an English case10, which, though made in the context of contempt of court are applicable to the point under discussion also. "A judge is in a very different position to a juryman. Though in no sense superhuman, he has by his training no difficulty in putting out of his mind matters which are not evidence in the case. This indeed happens daily to judges on Assize. This is all the more so in the case of a member of the Court of Criminal Appeal, who in regard to an appeal against conviction is dealing almost entirely with points of law and who in the case of an appeal against conviction is considering whether or not the sentence is correct in principle.".

(21) Living conditions and other factors.-It is true, that the sentence of death by itself may not exclusively influence the rate of homicide, and in those countries where the rate was low, it might have bee_n low because of a better standard of living, and level of education of the people. But this would not, we are afraid, constitute an argument for abolition at all. What has to be emphasised, is, that these factors also act in conjunction with the sentence of death, or any other sentence that may be substituted.

(22) Public opinion.-How far public opinion favours abolition or retention11, and secondly, how far such opinion should be taken into account, are two important questions that have often been the subject-matter of debate whenever the question of abolition or retention is considered. We believe that though public opinion is not a conclusive factor, its importance cannot be brushed aside. In this as in many other fields where the law operates, there is a constant interaction between law and public opinion.

Sometimes the one is advanced, sometimes the other. But a wide hiatus between the two might bring the law into disrepute. If public opinion favours retention, and yet the law ventures to abolish the sentence of death, there is a danger that public opinion might assert itself in a reckless and unrestrained manner by killing or injuring the offender, particularly when the offence is a brutal one arousing intensely the sentiments of the public.

It is true, that those who argue for abolition also reflect public opinion. But, then, their views have to be weighed against the views of those who still favour retention-we do not say that the matter can be decided only on the numerical strength of either.

(23) Opinion of judges, etc.-It is stated that Judges, lawyers and police officers are not in any particularly favourable position for expressing a view on this question, and that they see the offender only when he is detected. It cannot, however, be denied, that the persons mentioned above have more points of contact with the behaviour of criminals than others.

Further, it would not be always accurate to assume that their knowledge of the conduct of the criminal begins only from the point of detection; often, the relationship between the accused and the victim, prior to the crime, has to be investigated and gone into by them. We do not go to the length of saying that the views of judges and lawyers should be treated as concluding the question. But they deserve special consideration. They are concerned with the administration and application of the law, and the whole evidence comes before them. To that extent they are in a superior position.

(24) Prison administration.-We agree that the difficulty of maintaining in the prison prisoners convicted of capital offences can be no argument for retention.

(25) Sympathy for the family of the victim.-We also agree, that mere sympathy for the family of the victim does not justify capital punishment. We should, however, hasten to observe, that, in so far as this sympathy plays its part in building up public abhorrence of the crime, it is a commendable one, and may constitute a link in the process of merger of other elements of punishment into the deterrent one12.

(26) Experiment.-We do not think that in the present state of the country, India can risk an experiment which may put into danger the lives of numerous citizens. It may not be easy to restore the status quo if the experiment fails-as it may, in those parts of the country which are notorious for crimes.

(27) Reformation.-That a criminal can be reformed is a consideration to which even now the law is not blind. The discretion left to the court in the matter of sentence leaves ample room for considering whether the offender is a person who can be retrieved from his evil ways. It is unnecessary to cite here cases in which, on the ground of age, ignorance, or other factors which show the possibility of reformation, courts have refrained from passing the death sentence13.

(28) Abolition no risk.-It has been stated, that the fear that abolition constitutes a risk in society is childish and primitive, and that, rather, it will inculcate a spirit of reverence for life in the people, who will have the example of the State before them. Mainly, this argument raises the question of the deterrent effect of capital punishment, which is discussed elsewhere14, and we need not tread the same ground again. But we would like to draw attention to events that led to the restoration of capital punishment in several countries15.

Opinions may differ as to whether the restoration in those countries was really due to an increase in homicide or due to political considerations, and, if it was due to any assumed increase in the rates of homicide, whether there was really any factual basis for that assumption. But it cannot be gainsaid, that the experience of those countries constitutes at least a reasonable argument for believing that the fear of capital punishment operated on the minds of human being is, and conversely, that the removal of that fear led to an increase in homicide.

(29) Experience of other countries regarding convicts.-That convicted murderers do not kill again, is a proposition which has been urged in favour of abolition. The Royal Commission recorded some evidence and collected certain figures as to the conduct of murderers after release from prison16, and observed that the evidence and figures would tend to show that released murderers, in general, behave well after leaving prison.

The conclusion of the Ceylon Commission17 also was, that the danger to the community from such prisoners on their release is minimum, particularly if they are sentenced to life imprisonment and a flexible and undetermined system of release accompanied by aftercare supervision replaces the present system. It must, however, be noted, that much depends on the personal idiosyncrasy of the offender.

Further, it would not be out of place to point out, that these figures relate to the conduct of prisoners, who by the very hypothesis, were not sentenced to the highest penalty, because their cases deserved special consideration and sympathetic approach. The same cannot be said of those who were sentenced to death. In the case of the latter categories of offenders, it may not be safe to predict that they would, if they had been sentenced to the lesser sentence, also have behaved in the same way. To this extent, the value of the figures obtained in respect of retentionist countries is diminished. Moreover much depends also on the training which a prisoner receives in a prison, the social hierarchy to which he belongs, the environment in which he lives, and the "after-care" given to him.

(30) Death penalty a lazy answer.-If the object which can be achieved by the penalty of death could be achieved by any other penalty, no one would for a moment justify its retention. But the very question is, whether the objects could be so achieved. This again raises the issue of deterrent effect18.

(31) Onus.-The onus, it is stated, lies on those who favour retention, as the question at issue is of human life. This is, perhaps an argument which could be advanced by retentionists also in their favour, since it is the protection of human life which is the mainstay of their case.

1. It would be interesting to note that the Privy Council has held that the mandatory death penalty for arson under section 33A, Law and Order (Maintenance) Act, 1960 of Rhodesia, does not contravene section 60 of the Rhodesian Constitution, which prohibits "torture or inhuman or degrading punishment"-Runyawa v. R., The Times, January 20, 1966: (1966) 1 Current Law 385 C (January 1966).

2. See discussion as to irrevocability; paras. 266-275, infra.

3. This mainly concerns legal aid.

4. See also discussion relating to discretion of the courts; paras. 541-578, infra.

5. See separate discussion relating to deterrent effect; paras. 308-372, infra.

6. See the R.C. Report, p. 18, para. 53.

7. See sections 268-269, Code of Criminal Procedure, 1898. As to High Courts, see section 305, Code of Criminal Procedure, 1898.

8. See sections 306, 307 and 374 to 378, Code of Criminal Procedure, 1898.

9. See sections 374-378, Criminal Procedure Code, 1898.

10. R. v. Duffii, (1960) 2 All ER 891 (895), (Lord Parker C.J.).

11. The replies received to the Commission's Questionnaire on Question 1 are summarised elsewhere in the discussion on that question.

12. Compare discussion relating to the retributive object of punishment paras. 295-299, infra.

13. See analysis of case law.

14. See paras. 303-372, infra.

15. See paras. 306-308, infra.

16. R.C. Report, p. 229, para. 651, and p. 486, Appendix 15.

17. Ceylon Report, p. 59, para. 55 and p. 58, para. 51.

18. The question of deterrent effect is dealt with separately; see paras. 303-372, infra.

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