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Report No. 35

Topic Number 22

Objects of Capital Punishment-Answer to Question 2(a)

277. Question 2(a).-

We had in our Questionnaire put a specific question about the object of capital punishment. The question1 was as follows:-

"What, in your opinion, is the object of capital punishment? Does the existing law sufficiently achieve that object ".

As was expected, most of the replies on this question have stressed the deterrent object of capital punishment: That object has been described from its various aspects, such as, to preserve the social order, to deter persons from crimes, to act as a deterrent in respect of serious offences, to deter persons from homicide, or more elaborately, to deter anti-social and criminal elements who may not (in the absence of such punishment) hesitate to take away life or to commit other offences which are capital at present. Detailed discussion as to how far the deterrent object has been achieved, falls under Question 2(b)2.

1. Question 2(a) in the Questionnaire.

2. See discussion of replies under Question 2(b); paras. 334-369, infra.

278. Another object which has been mentioned in the replies is, the retributive one or "social justice" as reflected in the mind of the society to obviate private vendetta. But several replies have expressed disagreement with this proposition, either (i) by stating that vengeance, ("tooth for tooth and eye for eye") is not at all the object of capital punishment, or (ii) by stating that retribution is hardly an appropriate function of the State, or (iii) by arguing that it is "impossible to determine what penalties provide the varying but exact amount of retribution called for by a list of crimes ranging, e.g., from theft of a handkerchief to murder,1" or (iv) point out that even this retributive object has not been sufficiently achieved.

1. Quoting from the Manual of Correctional Standards, issued by the American Corrections Association, (1965), p. 9.

279. The reply of a High Court Judge1 states the object of the punishment of death to be three-fold, namely, first, retributive with reference to the murder itself, secondly, deterrent on those persons who might under the influence of anger, greed or religious frenzy feel tempted to take other people's lives; and, thirdly, morally satisfying the feeling of society that wrong-doers are likely to be punished effectively.

1. S. No. 251 (A High Court Judge).

280. The reply of a State Government1 states, that the object is two-fold, (i) primarily as a deterrent, and (ii) to a lesser extent, retribution. The reply points out, that the object is such that one cannot expect to achieve it fully, but, since the penalty of death inevitably acts as a deterrent, th.-object can be stated to have been sufficiently achieved.

1. S. No. 242 (A State Government).

281. The reply of another High Court Judge1 states that some element of retribution is, of course, involved in all punishments, in the sense that a decisions as to whether a person is punishable must be based on his past actions; but that the principal object of punishment may be stated to be the protection of society, which is sought to be achieved partly by reforming the criminals and partly by deterrence.

The reply of another High Court Judge2 states that the object is deterrence, and that it is a principle of criminal jurisprudence that murder (deliberate homicide) should be deterrently punished with the gravest penalty.

Another High Court Judge2 describes the object as "to mark the crime which carries with it the death penalty as the most heinous, and to prevent it.".

In the reply of another High Court Judge3, it has been stated that a more subtle meaning has to be given to the word "deterrence"4. The reply refers to a case which occurred a few years ago, where the entire family of an Advocate was done to death on the outskirts of Bangalore, by a murderer in the hope of gain. The community felt shocked beyond words; the necessity of inflicting death penalty in similar cases for proved offenders illustrates the point made above.".

The reply also proceeds to deal with the point made by Dr. K.N. Katju5, and states that the reasons given by Dr. Katju for abolition that so few persons ultimately receive the death penalty, and that the severity of the punishment leads to too many acquittals, "appear to be really the proper reasons for retaining the capital sentence for murders committed in the circumstances which shock the community by their aggravated circumstances or by premeditation.".

The reply of another High Court Judge6 discusses the various theories (the ancient theory of placating the God and expressing group disapproval by removing the culprit, retribution theory, and theory of deterrence), and notes the criticism levelled against each theory. The reply, however, states that none of these theories seem to state the real object of capital punishment.

The reply of the Chief Justice of a High Court7 states that the main object and the sole justification of capital punishment is its deterrent effect on persons who might otherwise take away the lives of their fellow beings.

1. S. No. 230 (A High Court Judge).

2. S. No. 262 (A High Court Judge).

3. S. No. 262 (A High Court Judge), under questions 1 and 2

4. Observations of Lord Denning about emphatic denunciation by the immunity cited.

5. Dr. K.N. Katju's article "To hang or not to hang" which was published in t he Statesman of December 19, 1964.

6. S. No. 316 (A High Court Judge).

7. S. No. 317 (Chief Justice of a High Court).

282. Most of the District and Sessions Judges have emphasized the deterrent object of capital punishment, and stated that it is achieved sufficiently or to a considerable extent.

283. One of the replies1 emphasizes that the object of capital punishment is not tooth for tooth, but to create caution or realisation in the mind of a murderer that he will also meet the same fate as his victim.

1. S. No. 367.

284. Another reply1, while stating that the principal object is prevention of offences, states that at times there is an element of vindictiveness which cannot be left out of sight, and that both public and personal sentiments demand that the person who has made another person suffer unjustly should be made to suffer himself.

1. S. No. 371.

285. In the reply of a very senior Advocate of the Bombay Court1, the object of capital punishment is described as two-fold, namely, to punish the killer adequately for his cruel and wicked crime; and, secondly, to serve as a deterrent not only to prospective criminals, but also to the average citizens who have a natural dread of capital punishment.

1. S. No. 318.

286. The reply1 of the Chief Justice of a High Court states, that "the first and primary object is that it should act as a deterrent. The second object is that the punishment should correspond with the gravity of the crime. In regard to punishment, a cold, calculated and brutal murder cannot be equated with a murderer committing the crime in the heat of passion and other extenuating circumstances. In the former case the only befitting sentence is the sentence of death.".

1. S. No. 393.

287. The reply of a City Civil Court and Additional Sessions Judge1 states, that the experience of Sessions Judges and practising Advocates on the criminal side shows that the accused as well as the common man does have the fear of death sentence; even in ordinary or casual conversation, expressions such as "What will you do at your worst? You would not be able to hang me" are met with.

1. S. No. 484, under "additional note".

288. The reply of a High Court Bar Association1 states, that the primary object of punishment is retribution-in the sense that punishment looks to the past and originates in the instinct of vengeance. "One of the purposes of punishment is to serve as an outlet, a kind of safety valve for the indignation of the community. All cases ultimately depend on their enforcement upon public sentiment in their favour. Fear of punishment protects a man against himself. Both the deterrent theory and reformatory theory are inadequate to express the whole truth about punishment".

1. S. No. 493 (A High Court Bar Association in a Presidency-town).

289. The object of removing a person from the world for ever, and thus protecting the society, is stressed in the reply of one of the Sessions Judges1.

1. S. No. 516.

290. In the reply of a District Panchayat Officer1 it has been emphasised, that capital punishment gratifies, as no amount of imprisonment can, the "natural and healthy resentment" of the relations and friends of the murdered man and it is an effective check on murder.

1. S. No. 425.

291. There has been a strong objection in one of the replies to the retributive aspect, on the ground that the prejudice that the murder should not go unavenged has in several cases, been the cause of a sentence of death1.

1. The decision in Gurdev Singh v. Emperor, (AIR 1948 Lah 5) has been referred to in this connection. But that decision does not go so far, and (as far as is relevant), merely holds that the sentence of death could not be refused on the ground of age of the convicted person (alleged to be 19 to 20 years).

292. The retributive aspect has been expressed in some of the replies1-2-3 in a different form, namely, to allay the grief of the family of victims, and to give consolation to the relatives of the murdered person.

1. S. No. 154 (A State Government).

2. S. No. 166 (An Inspector-General of Prisons).

3. S. No. 161 (A Member of the Bar through the Bar Council of India).

293. One object which has been mentioned in some of the replies is that of "disabling", that is to say, the object of doing away with a person who, if allowed to live, may, on regaining liberty, be a serious menace to society.

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