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Report No. 35

Topic Number 26

Conclusion regarding deterrent effect

370. Conclusion regarding deterrent effect.-

In our view, capital punishment does act as a deterrent. We have already discussed1 in detail several aspects of this topic. We state below, very briefly, the main points that have weighed with us in arriving at this conclusion:-

(a) Basically, every human being dreads death.

(b) Death, as a penalty, stands on a totally different level from imprisonment for life or any other punishment. The difference is one of quality, and not merely of degree.

(c) Those who are specifically qualified to express an opinion on the subject, including particularly the majority of the replies received from State Government, Judges, Members of Parliament and Legislatures and Members of the Bar and police officers-are definitely of the view that the deterrent object of capital punishment is achieved In a fair measure in India2.

(d) As to conduct of prisoners released from jail (after undergoing imprisonment for life), it would be difficult to come to a conclusion, without studies extending over a long period of years.

(e) Whether any other punishment can possess all the advantages of capital punishment is a matter of doubt3.

(f) Statistics of other countries are inconclusive on the subject. If they are not regarded as proving the deterrent effect, neither can they be regarded as conclusively disproving it.

1. See detailed discussion as to deterrent effect, paras. 303-369, supra.

2. See replies to question 2(b), summarised separately paras. 334-369, supra.

3. See also discussion relating to arguments for abolition; paras. 262-265, supra.

371. The statistical material which we have tried to analyse shows that the effect of abolition, has not been uniform. There are countries in respect whereof the figures are inconclusive; there are countries, in respect whereof the figures tend to prove the deterrent effect of the death penalty; and there are countries in respect of which the figures do not prove the deterrent effect of the death penalty. As regards the last category, we should state here, that in regard to social and economic conditions, cultural level and in regard to general climate, as regards law and order, many of them differ from India. Lord Hewart's observations may be quoted1:

"The figures of any country over a series of years may vary for quite other reasons than the presence or absence of the death penalty. They may be affected by such circumstances, as for example, economic depression or civil unrest and disorder. Of such undescribably varying influences in different parts of the world statistics take no account.".

1. Lord Hewart, Not without prejudice, p. 214, cited in the Ceylon Report (minority view), p. 103, para. 18.

372. As was pointed out in the Canadian Report1, the interpretation of statistical data involves difficulty because the figures cannot express the differences in tradition, standards of law-enforcement, social conditions and other factors in various countries or even regions within a country.

(g) Moreover, in most of the countries which, having abolished capital punishment, have maintained the abolition, the rates of homicide are far lower than in India2.

(h) Certainty of punishment, is, no doubt, an important factor contributing to the deterrent effect of punishment; but that is a consideration applicable to all kinds of punishments, and thus, to any other punishment that may be substituted for the penalty of death. That does not detract from the basic difference between death and a lesser punishment.

(i) Cases of abnormal persons or persons acting under peculiar mental stress apart, a human being of ordinary frame of mind would, before committing a crime, think of the consequences certainly where death is the consequence.

(j) Further, the argument that the offender never thinks of the possible punishment would take away the foundation of all punishments, and not merely of the punishment of death.

(k) There is a considerable body of opinion to the effect, that the death penalty acts as a deterrent3-4.

(l) When a person is brought up in the knowledge of a possibility of a sentence of death, that knowledge must form part of his mental make-up, and may be reasonably supposed to influence his actions in ordinary situations; and we do not believe that every case of murder (or other capital offence) is one where the offender completely disrobes himself of the fabric of fears that would have been woven by the threads of this knowledge. The element of fear would not be totally absent, though its operation may be offset in part by certain other facts.

(m) In short, the one big basic fact of fear of death has not been displaced by all the arguments, taken together, that have been advanced in negation of it. The springs of human behaviour flow within the channels created by law on psychologically valid foundations. The erratic storms of provocative circumstances, or the obstables erected by other counteracting influences, may divert those springs or block their smooth flow, but only occasionally.

1. Canadian Report, p. 13, para. 48.

2. See figures for 1962, for abolitionist and retentionist countries, given separately.

3. See replies to Question 2(b), summarised separately; paras. 334-369, supra.

4. See also view of Sir Patrick Spens House of Commons, (1955-56), Vol. 548, Cols. 2565-2566, para. 353, supra.

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