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Report No. 262

C. Deterrence

4.3.1 Deterrence aims to prevent individuals from offending by using the fear or threat of punishment.255 The assumption behind deterrence theory is that all persons are rational individuals, and will commit a crime only if they perceive that the gain they will derive from the criminal act will be greater than the pain they will suffer from its penal consequences.256

The belief is that the operation of deterrence is strengthened when the punishment is made as severe as death itself; no person in his/her right mind would commit an act which may result in the loss of one's life, the instinct of self-preservation being intrinsic, biological and insurmountable under ordinary circumstances.257 often quoted in this regard is a statement of Sir James Fitzjames Stephen that:

Some men, probably, abstain from murder because they fear that if they committed murder they would be hanged. Hundreds of thousands abstain from it because they regard it with horror. One great reason why they regard it with horror is that murderers are hanged.258

255 Andrew Ashworth, Sentencing And Criminal Justice 75 (4th ed. 2005); Raymond Paternoster, How Much Do We Really Know About Criminal Deterrence, 100 Journal of Criminal Law and Criminology 765, 766 (2010).

256 Andrew Ashworth, Sentencing And Criminal Justice 71 (4th ed. 2005).

257 Ernest Haag, The Ultimate Punishment-a Defense, 99 Harvard Law Review 1662, 1666 (1986).

258 Ernest Haag, The Ultimate Punishment: A Defense, 99 Harvard Law Review 1662, 1666 (1986)

4.3.2 The 35th Report cited the following (amongst other) reasons in favour of the proposition that the death penalty serves a deterrent value:259

1. Every human being dreads death.260

2. The death penalty stands on a different footing from imprisonment. The difference is one of quality, and not merely of degree.

3. Experts consulted by the Commission, including state governments, judges, Members of Parliament, Members of State Legislatures, police officers, and advocates were of the view that "the deterrent object of capital punishment is achieved in a fair measure in India."261

4. Whether other forms of punishment possess the advantages of capital punishment is a matter of doubt.

5. "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."262

6. There is a "considerable body of opinion" to state that death penalty acts as a deterrent.263

259 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India, at para 370.

260 Hood & Hoyle argue that although it is possible that some people refrained from committing murder because of fear of execution, this is an insufficient basis to conclude that existence of the death penalty deters people from committing murders. See: Roger Hood & Carolyn Hoyle, Myth of Deterrence, in Moving Away From The Death Penalty: Arguments, Trends And Perspectives 67 (United Nations Commission on Human Rights, 2014).

261 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India, at para 370.

262 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India, at para 370.

263 For this proposition, the Commission cites replies received to its questionnaire, as well as a statement made by Sir Patrick Spens in the House of Commons, based on his experience in India.

4.3.3 In Bachan Singh v. State of Punjab, (1980) 2 SCC 684 the Supreme Court observed that in most countries of the world, including in India, a "large segment of the population, including notable penologists, judges, jurists, legislators, and other enlightened people" still believe that the death penalty serves as a greater deterrent than life imprisonment. Bachan Singh v. State of Punjab, (1980) 2 SCC 684, 713.

The Court noted various cases where it had recognized the deterrent value of the death penalty. The Court refers to Paras Ram v. State of Punjab, (1981) 2 SCC 508, Jagmohan v. State, AIR 1973 SC 947, EdigaAnnamma v. State of Andhra Pradesh AIR 1974 SC 799, Shiv Mohan Singh v. State AIR 1977 SC 949, Charles Sobhraj v. Superintendent, Central Jail, Tihar, New Delhi, 1978 AIR 1514.

4.3.4 Post-Bachan Singh, the Supreme Court has often used deterrence as a justification for imposing the death penalty. For instance, while imposing the death sentence in Mahesh v. State of Madhya Pradesh, (1987) 3 SCC 80 the Court noted that "[the common man] understands and appreciates the language of deterrence more than the reformative jargon." Mahesh v. State of MP, (1987) 3 SCC 80, 82. See also: Sevaka Perumal v. State of Tamil Nadu, (1991) 3 SCC 471, 480, Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667, 675, Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561, 574.

In Jashuba Bharatsinh Gohil v. State of Gujarat, (1994) 4 SCC 353 the Court held that "protection of society and deterring the criminal is the avowed object of law." Jashuba Bharatsinh Gohil v. State of Gujarat, (1994) 4 SCC 353, 360. See also: Paniben v. State of Gujarat, (1992) 2 SCC 474, 483, B. Kumar v. Inspector of Police, (2015) 2 SCC 346, 354, Gyasuddin Khan v. State of Bihar, (2003) 12 SCC 516, 525, Paras Ram v. State of Punjab, (1981) 2 SCC 508, 508.

There are however other cases where the Court has held that deterrence is not the primary justification for imposition of the death penalty, See: Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, 343. or doubted the efficacy of deterrence itself. Ravindra Trimbak Chouthmal v. State of Maharashtra, (1996) 4 SCC 148, 151.



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