Report No. 35
Topic Number 25
Deterrent effect how far achieved-Replies to Question 2(b) summarised
334. Replies to question 2(b).-
Regarding the deterrent effect of capital punishment, a specific question was put in our Questionnaire1 as follows:-
"In particular, do you think that the sentence of death acts as a deterrent?"
Conflicting views have been expressed in the replies received to this question. One view, which may be said to represent the opinion of the largest single majority of those who have replied to this question, is that capital punishment2 does act as a deterrent. At the other extreme is the view that it has failed to act as a deterrent. Between these two extremes we find varying shades, such as, that-
(i) Capital punishment may not necessarily act as a deterrent, but in the present circumstances it is likely to act as a deterrent3;
(ii) it acts as a strong deterrent for normal human beings4;
(iii) in the case of hardened criminals it does act as a deterrent;
(iv) it acts as a deterrent only in cases where there are no extenuating factors or sentiments;
(v) though it may be debatable whether it necessarily acts as a deterrent, yet in the conditions which prevail in the country, it tends generally speaking to act as a deterrent5;
(vi) it acts to a large extent as a deterrent; but in some cases, particularly where passions are aroused, it cannot in the circumstances possibly act as a deterrent, especially having regard to the present trends of thinking on the subject, which attributes an act of homicide to a psychological or other imbalances or to a criminal tendency which flares up on passions being roused up6.
1. Question 2(b).
2. Question 2(a), latter half dealt generally with achievement of the objects of capital punishment.
3. S. No. 139.
4. S. No. 150.
5. Bar Association of India, S. No. 183.
6. S. No. 161 (An eminent member of the Bar).
335. We may record here, that all the State Governments and Administrations that have sent replies, all Inspectors-General of Police who have replied, and all High Courts or Judges of the High Courts who have sent replies to this Question, are of the opinion that the deterrent object is sufficiently achieved.
336. The reply of the Chief Justice of a High Court states1, that statistics from other countries are not safe criteria for the decision of the question whether the deterrent object is sufficiently achieved, because the incidence of murders and other crimes would largely depend on the cultural and educational level and social conditions prevailing in a particular country. And, further, the statistics do not also reveal the type and nature of the murders.
The reply also emphasises one aspect, namely, that since jail reforms have been effected with the emphasis more on the reformative than on the punitive object of the sentence of imprisonment, and facilities like release on parole and other amenities are provided to prisoners, a sentence of imprisonment would, as a deterrent, have little effect on the minds of the criminal elements in society, for whom the death sentence only would be the effective deterrent. On the minds of the average potential criminal, it is stated, the death sentence does act as a deterrent.
1. S. No. 393 (Chief Justice of a High Court).
337. A High Court Judge1, who has had experience as a Sessions Judge in more than one District noted for its crimes of murder, has stated, that this particular offence against the person showed a marked fall, if it was known to be dealt with firmly.
Another High Court Judge2 has stated, that his experience as an Advocate and as a Judge makes him feel, that it has a deterrent effect, and points out that every Advocate pleads for the reduction of death sentence to imprisonment for life, and every condemned prisoner entertains hope till the end that the death sentence would be altered into one of imprisonment by the appellate court or the executive. "If it is properly carried out, it will satisfy the sense of justice and provide social satisfaction and a sense of protection.".
1. S. No. 262 (A High Court Judge).
2. S. No. 262 (A High Court Judge).
338. A number of Members of Parliament and State Legislatures have stated that capital punishment does act as a deterrent1.
1. S. Nos. 221, 223, 224 and 226.
339. The reply of a Member of a State Legislative Council1 states, that after all the right to life is the greatest of all rights, and its deprivation is the greatest of all deterrents, provided the punishment is certain and reasonably prompt.
1. S. No. 248.
340. In the reply of the Advocate General of a State1, it is emphasised that the fact that certain offences are made punishable with death itself infuses a sense of security in the citizens.
1. S. No. 229.
341. The reply of the Law Minister of a State1, while noting that the number of cases of murder have not come down substantially, points out, that the very idea of a possible sentence of death seems to continue to act as a deterrent, and that the reason for the number of crimes not coming down may be the materialistic trend and the acute struggle for existence in modern society, rather than the inefficiency of capital punishment.
1. S. No. 253.
342. The reply of one Member of State Legislature1 states, that it does act as a deterrent for the criminally minded class.
1. S. No. 242.
343. According to the Judge of a City Civil Court in a Presidency Town1, the deterrent object is sufficiently achieved in respect of the offences now punishable by death under the Indian Penal Code.
1. S. No. 484.
344. According to the majority of the Presidency Magistrates in a Presidency Town1, the sentence of death does act as a deterrent on deliberate murders.
1. S. No. 549.
345. According to the Judicial section of the Indian Officers' Association in a State1, the object is to serve as an ultimate deterrent against heinous crimes involving high degree of violence, and the existing law "substantially, though not sufficiently", achieves this object.
The reply of a Judicial Officers' Association2 states, that retention of capital punishment is absolutely necessary as a deterrent, so long as we have in our country divergent castes, creeds and communities, who do not see eye to eye in the social and national problems, and whose education and cultural standards are not above the average.
1. S. No. 562.
2. S. No. 373, in reply to Question 2(a).
346. It is the view of a City Civil Court Judge1 who has had experience as a Sessions Judge in several districts of the bilingual State of Bombay, that the giving of capital punishment in a very few selected cases of gruesome, premeditated, cold-blooded and ghastly murders did act as a deterrent.
1. S. No. 376.
347. The reply of a Sessions Judge in the State of Madras1 states, that death sentence acts as a deterrent, especially when it is carried out within a reasonable time of the occurrence.
1. S. No. 419.
348. A Sessions Judge in the State of Madhya Pradesh1 also states that his experience has shown that the awarding of death sentence has reduced the number of capital offences.
1. S. No. 437.
349. A District and Sessions Judge in the State of Maharashtra1 has stated, that in some measure the infliction of capital punishment does impress the social mind that a life of crime is not worth living. He, however, emphasises that the deterrent effect does not last for a sufficiently long period. Public memory, it is stated, is always short, and an effective check on capital offences is not to be solely found in the retention of death sentence.
1. S. No. 330, reply to question 2(a) and 2(b).
350. In the reply of another District and Sessions Judge in the State of Maharashtra1, it has been pointed out, that it is not merely the awarding of a death sentence or its execution that acts as a deterrent, but that the very existence of capital punishment on the Statute Book, and the chance of its being meted out, together with its actual application once in a while, works out as a deterrent on the criminal mind.
The reply adds, that in certain criminal districts, where the number of murders is particularly large, it has been noticed that the awarding of death sentence does work as a curb on heinous crimes at least for some time. The long period of association of the death sentence with the particular crime of murder has worked out a deterrent fear in respect of that particular crime, on the social mind and the removal of the capital punishment from the Statute Book is likely to unsettle that "traditionally settled fear", and so work out an unprecedented spurt of serious crime1.
1. S. No. 334.
351. In the reply of another District and Sessions Judge1, it is stated, that the fact that serious crimes are on the increase is no reason for concluding that the death sentence or any other sentence should be abolished. Other measures for the prevention of crimes are necessary, but there is no justification for being more lenient than the law at present is.
1. S. No. 336.
352. The reply of an Additional Sessions Judge1 points out, that fast changing values have led to the result, that offenders take to killing on insignificant pretexts, and that capital punishment is the only answer to such murders.
1. S. No. 367
353. We may also refer here to the view expressed by Sir Patrick Spens to the effect, that from his experience in India he could say, that capital punishment did act as a deterrent to murder. We quote his speech1 in extenso-
1. House of Commons Debates (1955-56), Vol. 548, Col. 2565-2566.
"What I have to say to the House is partly, but not very greatly, founded on my experience as a judge in India.... I never, of course, there presided over a murder trial of the first instance, but I did preside over the Supreme Court of Appeal, and during the four years that I sat as Chief Justice we had a great number of appeals from death sentences. Our duty was, perhaps, not so difficult as that of a judge of first instance, but equally serious where we had to consider whether a death sentence was to be set aside or reduced-as we were entitled to reduce it, to 14 years' rigorous imprisonment-or confirmed.
It is partly from that experience that I, myself, am convinced that the death penalty is a deterrent in certain cases, and if the death penalty is a deterrent in certain cases, we then have to consider, and consider most carefully, what would be the result of doing away with it.
"Of course, it is perfectly true that the bulk of the murders with which I had to deal in the Appeal Court were similar to the bulk of murders in this country; that is to say, they were murders committed suddenly, fiercely, unpremeditatedly, and so forth. But, in the course of that experience, I came across another type of murder, which I think does indicate, and indicate reasonably clearly, that the death penalty is a deterrent. Those were cases arising out of crimes of violence when the perpetrators may or may not, have intended that the victim was to die, but, as a result of the violence used, the victim did in fact die and the crime, of course, was that of murder.
"I propose to quote only two very different types of those cases. The first was one of the earliest appeals that I had to hear in August 1943. It arose out of the uprisings in Bihar the previous year. There, on 13th August, 1942, a police station was captured by rioters. It was burned and the police officers were made prisoners by the rioters. The rioters then proceeded to strip the policemen and toast them in front of the fire. They proceeded to withdraw them as soon as they thought the policemen looked as if they were about to collapse. There were two of these unfortunate victims. One of them did collapse after three or four toastings and the other did not collapse. As soon as the first one was seen to be about to die, or to be liable to die, every person concerned set to work trying to revive the victims and to prevent them from dying.
"The rioters had already committed a crime which would obviously attract the longest term of rigorous imprisonment-why should they have tried to revive their unfortunate victims, but for the fact that they knew perfectly well that if one of those victims died they would be hanged, and hanged for a certainty?
"That is one instance. The other was a quite different one. A middle-aged lady, who strongly disliked her husband, proceeded every evening to give him an evening meal in which she put, not poison, but a very obnoxious irritant to the bowels. This went on over a period, after which it was quite obvious that the man was about to die. Thereupon, she rushed him to hospital and did everything in the world she could to prevent him dying. Why? Again, because she knew perfectly well that if he died she would incur liability to the death penalty.
"Of course, those are very small indications that the death penalty is a deterrent. I entirely concur in what has been said by my right hon. and gallant friend that no statistics can prove one way or the other whether the death penalty is a deterrent, but every one of us knows-knows inside himself-whether violent death is a deterrent taus and whether it will deter us from doing certain things. Masses of hon. Members in this House have served in the Armed Forces. I do not believe a single one if he says that he has never been deterred by bullets or bombs. Of course we have been deterred by bullets and bombs. I am not ashamed to confess that I have been gravely deterred, almost to the length of turning my back and not going forward when I ought to be going forward-"