Report No. 35
Mr. S. Silverman: "But the right hon. and learned Member did not do So."
Sir, P. Spens: "I did not do so, but I did not go forward in the way I would have done if there had not been bullets flying about. I will give another instance. Just before I left India there were bad riots in Delhi. There was a great deal of firing on one occasion and somehow or other I had to get round the area where the rioting was going on. I motored miles to avoid going through the middle of it. I am sure that anyone else would have done the same.
"I am absolutely convinced,-I know-that fear of violent death is a deterrent, and no statistics, no arguments whatever, will convince me that it is not. It is something we know and, if we know that violent death is a deterrent, we must assume that in the past there have been cases when, someone would have committed murder-not hon. Members of this House-had that person not known that if he did so he would hang for it. If there have been cases like that in the past, all I can say is that I am sure that we shall do a grave injury to society if we suspend or abolish the death penalty for the future.
"The right hon. Member for South Shields (Mr. Ede) made a powerful speech about the Evana case. Having seen the difficulty of evidence in that great country overseas, I am certainly no one to go to the length of saying that is impossible for the wrong man to be hanged. I am not one who would say that. I think the choice is between whether this country is going to risk in a very exceptional case under our procedure-which is as fool-proof as it can be-the possibility of the wrong man being hanged in future, or to risk the case, which gets far more sympathy from me, that some unknown and unknowable man, woman, or child is to be murdered in future who would not be murdered if the death penalty were retained.
"To me, there is no question of what the choice is to be. I should regard a vote cast for suspending or doing away with the death penalty as one full of risk that some innocent person would be murdered who otherwise would not have been murdered. I would much rather take the risk that some fellow might get himself into a position in which he is brought before a judge and jury and yet, with all the evidence against him that he is a murderer there is something wrong. In my view, there is an enormous chance against that sort of thing happening, whereas, if we abolish the death penalty, the chances of innocent persons being murdered who otherwise would not be murdered I believe are very great indeed.".
354. We shall now refer to the arguments advanced in support of each of the main views which have been summarised above. Those who have expressed the view that capital punishment acts considerably as a deterrent (i.e., that the deterrent object is sufficiently achieved), have pointed out, that successive confirmation of death sentences in cases from districts notorious for the record of crime has served as a check1. A hardened criminal, it is said, is very likely to commit murder after undergoing a life term.
The psychological and social effect of the severest punishment on society has also been stressed, and it had been contended that even if a particular form of punishment is not a deterrent by itself, that is no ground for substituting it by some other form of punishment, if it is felt necessary to have that punishment for creating the proper psychological and social effect on society. Execution of a person responsible for treason and murder, it is pointed out, has certainly a far more desirable and much better effect on every one than if he is merely sent to jail from where he can return and again commit serious crimes2.
1. S. No. 95 (A Retired Judge of the Bombay High Court); S. No. 212 (A District and Sessions judge in Gujarat State).
2. A State Government, in reply under question 2(a), S. No. 182.
355. It is also stated, that the fear of capital punishment is the greatest deterrent, and if it is not sufficiently achieved, the failure of the object may be due to the inadequate implementation of the law. An apprehension has also been expressed, that if the sentence of death is abolished, the murderer would be equated, so far as the award of punishment is concerned, with those who commit rape or robbery. This may encourage persons who commit robbery or rape to kill their victims (in the course of the commission of the crime), because, even if they do that, the punishment would remain the same1.
Every potential criminal or person who commits a crime, it is stated, knows in his heart of hearts what the consequences of his action would be, and his actions are also guided to a great extent by the nature and quantum of punishment likely to be awarded. In this context, death penalty does have a deterrent effect, and is in any case a suitable punishment for certain types of crime. It is also stated, that in a country like India, where there is acute poverty and where the percentage of literacy is very low and party or family feuds are innumerable, abolition of capital punishment would result in an adverse psychological effect, aggravating the crime situation2.
1. A State Government under question 2(b), S. No. 182.
2. A State Government under question 2(b), S. No. 182.
356. To sum up, while nobody has stated that death penalty acts as a deterrent in all cases (in fact it will be logically impossible to make such an assertion so long as there is a single case of murder), the persons and bodies in this category have pointed out, that it acts considerably as a deterrent, or acts as a deterrent in a large number of cases.
357. As against this, those who have questioned the deterrent effect of capital punishment have advanced several arguments. An argument advanced in many of the replies is, that on the basis of the studies made and figures collected in other countries, it appears that the object of deterrence is not achieved. It is pointed out, that the temporary abolition of capital punishment in some countries has actually decreased capital crimes. It is also stated1, that psychologists take the view, that in every given community, there will be found a segment of it predetermined with pathological and criminal potentials transcending the deterrent effect of any punishment, including capital punishment.
1. Quoting from Dr. Philip Q. Roche A Psychiatrist Looks at the Death Penalty, in the Prison Journal (October 19, 1958), p. 46.
358. According to a leading Theosophist1, the death sentence does not act as a deterrent. The reply adduces various reasons in support of this view, which may be briefly summarised as follows:-
(i) Many other countries have abolished capital punishment without any increase in homicide;
(ii) The police would do their duty better without the fear of having to bring a man to the gallows;
(iii) The 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;
(iii) Administration of the law would be speedier,
(v) There would be less corruption in courts;
(vil 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.
1. S. No. 479.
359. The conclusion of the Royal Commission on Capital Punishment1 is also quoted to the effect, that the figures of other countries do not give any clear evidence that the abolition of capital punishment has led to an increase in homicide rate, or that its re-introduction has led to a fall. Another argument advanced is to the effect that re-examination of the entire field of criminal law, based on Indian culture and philosophy, is needed. The highest Brahaman dwells in every one of us, in the criminal, in the police man and in the Judge2, it is stated.
It is contended, that punishment and the prisons should have an Indian "ethos" as the basis to reform the criminal, and not the legal system which the British rulers have evolved for ensuring a loyal social set up and respect for the colonial power. Another argument advanced is, that the rates of crimes are conditioned by factors other than the death penalty. Thus, man is unimportant in this tragic drama, and is simply caught in the steel-trap of circumstances3.
1. The reference seems to be to R.C. Report, p. 23, para. 65.
2. S. No. 118.
3. S. No. 122.
360. It has also been contended that certainty of detection and conviction act as a deterrent rather than the prospect of capital punishment. It is pointed out, that in England numerous minor crimes were capital at a certain time, but the abolition of death penalty has not increased their number1. The comparative figures for the yearly rate of murders for States in America with and without death penalty have been referred to2, in support of the argument that abolition States have consistently lower rates in most cases than retention State3.
As regards the argument that a released murderer might commit the same offence again, it is stated1, that the evidence received by the Royal Commission4 showed, that in countries like Belgium, Denmark, Netherlands, Norway, Sweden and Switzerland, cases of released murderers committing crimes of violence again were rare. It has been pointed out, that the majority of murderers can be remoulded by proper treatment and guidance5.
1. S. No. 126.
2. S. No. 119.
3. Figures from the "Crime Problem" by W.C. Reckless, New York, p. 465, quoted.
4. Royal Commission Report, p. 239, para. 651, end.
5. View of Mr. Lawes, former warden of Sing Sing prison, quoted from the "Encyclopedia of Criminology" by Branham and Kutash.
361. The personal opinion of Sir Ernest Gowers1 has been quoted to the effect, that it is impossible to arrive at a firm conclusion about the deterrent effect of the death penalty or, indeed, of any form of punishment. It is also argued2, that capital punishment is a type of punishment whose advantages can be obtained by other means and whose disadvantage cannot be prevented in any other way than by abolishing it3
1. Sir Ernest Cowers, view expressed in his book. "Life for Life".
2. Relying on Hentig Punishment-Its origin, purpose, and psychology.
3. S. No. 122.
362. The want of publicity in the execution of death sentence in India has also been put forth as weakening its deterrent effect1. It is also argued, that figures all over the world show that the deterrent effect is not achieved2.
In one of the replies3, two of the usual types of homicide have been dealt with thus-
"Where murder is done without pre-meditation on spur of the moment and under grave or sudden provocation4, it is obvious that death sentence can never act as a deterrent. The other type of murder commonly found is where a feuds or faction exists in a village. Here too the sentence of death for the man found guilty does not put an end to the feud or faction.".
1. S. No. 117.
2. A Member of the Rajya Sabha, S. No. 206.
3. An Advocate, through the Bar Council of India, S. No. 161.
4. As regards provocation, see section 300, Exception 1, IPC.
363. This brings us to the last category under this topic, namely, those who have emphasised that capital punishment acts as a deterrent, but partially. It is not necessary to re-state in detail1 the various shades of opinions expressed by these persons.
1. See, para. 334, supra.
364. Another reply1 states, that it neither deters criminals nor renders justice, and, that, on the other hand, family feuds are carried on.
1. S. No. 255.
365. Another reply1 states, that the existing law does not sufficiently achieve the deterrent object, because courts award the death sentence in a very rare number of cases.
1. S. No. 286 (A District Magistrate).
366. A few replies1 state, that it does not act as a deterrent, because it is not carried out in public.
1. S. Nos. 291 and 296.
367. The reply of an Advocate, who was previously a Member of Parliament1, states, that due to its application during these long years the death penalty has lost its deterrent effect (if it had any such effect initially), and that, making the utmost concession that it has some deterrent effect, it is certainly not a unique deterrent; because, if it were a unique deterrent, the number of murders would not have been what it has been throughout these years. "If a motor-car runs at exactly the same speed whether the brakes are off or on, surely it is an indication that the brakes are not working.". The reply states, that the example of the State taking life does more to lower the value of human life than the deterrent influence of death penalty.
1. S. No. 306.
368. A District and Sessions Judge in the State of Maharashtra1, while stating that death penalty is successful as a preventive measure, expresses the view that it is not more effective as a deterrent than any other penalty. When a murder is committed, the deterrent effect has obviously failed. Sex murders and murders committed by mentally abnormal persons are unlikely to be deterred by any threats. The same is true about impulsive murders. "The repulsive features and undesirable effects of capital punishment outweigh its unique force as a deterrent.".
1. S. No. 341.
369. Another District and Sessions Judge in the State of Maharashtra1 states, that the actual imposition of capital punishment is confined to very few cases of murder, so that the number of capital sentences in a particular area or district is not commensurate with the number of proved cases of murder from that area or district. He states, that the ratio between cases of actual imposition of capital sentence and cases in which the lesser sentence was imposed in a particular area would work out at 1 to 50. This necessarily makes it difficult to state confidently, that the existing law, as now administered, sufficiently achieves the deterrent object.
1. S. No. 346.
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