The Debate on Death Penalty- Abolitionists and Retentionists

The death penalty is provided under section 302 of Indian penal code, which provides the offence for murder. The Indian Penal Code was drafted by the First Indian Law Commission presided over by Mr. Macaulay. The draft underwent further revision at the hands of well-known jurists, like Sir Barnes Peacock, and was completed in 1850.

The Indian Penal Code was passed by the then Legislature on October 6, 1860 and was enacted as Act No. XLV of 1860.

Death as a punishment

Section 33 of the Penal Code enumerates punishments to which offenders are liable under the provisions of this Code. Clause Firstly of the section mentions ‘Death’ at one of such punishments. Regarding ‘death’ as a punishment, the authors of the Code say:

“We are convinced that it ought to be very sparingly inflicted, and we propose to employ it only in cases where either murder or the highest offence against the State has been committed.”

Accordingly, under the Code, death is the punishment that must be awarded for murder by a person under sentence of imprisonment for life (Sec. 303). This apart, the Penal Code prescribed ‘death’ as an alternative punishment to which the offenders may be sentenced, for the following seven offences:

(1) Waging was against the Government of India. (S. 121)

(2) Abetting mutiny actually committed (S. 132)

(3) Giving or fabricating false evidence upon which an innocent person suffers death. (S. 194)

(4) Murder which may be punished with death or life imprisonment (S. 302)

(5) Abetment of suicide of a minor on insane, or intoxicated person. (S. 305)

(6) Dacoity accompanied with murder. (S. 396)

(7) Attempt to murder by a person under sentence of imprisonment for life if hurt is caused. (S. 307)

The debate on Death Penalty

Death penalty has been age-old debate between Abolitionists and Retentionists. Both the groups are deeply anchored in their antagonistic views. Both firmly and sincerely believe in the righteousness of their respective stands, with overtones of sentiment and emotion. Both the camps can claim among them eminent thinkers, penologists, sociologists, Jurists, Judges, legislators, administrators and law enforcement officials.

Arguments of Abolitionists

The chief arguments of the Abolitionists, are as under:

(a) The death penalty is irreversible. Decided upon according to fallible processes of law by fallible human beings, it can be and actually has been inflicted upon people innocent of any crime.

(b) There is no convincing evidence to show that death penalty serves any penological purpose:

(i) Its deterrent effect remains unproven. It has not been shown that incidence of murder has increased in countries where death penalty has been abolished, after its abolition.

(ii) Retribution in the sense of vengeance, is no longer an acceptable end of punishment.

(iii) On the contrary, reformation of the criminal and his rehabilitation is the primary purpose of punishment. Imposition of death penalty nullifies that purpose.

(c) Execution by whatever means and for whatever offence is a cruel, inhuman and degrading punishment.

It is proposed to deal with these arguments, as far as possible, in their serial order.

The Indian Supreme Court in the case Bachan Singh v. Union of India (1980), has considered this question in detail. In its judgment, the court put its arguments in response of the arguments of abolitionists as follows-

Regarding (a): It is true that death penalty is irrevocable and a few instances, can be cited, including some from England of persons who after their conviction and execution for murder, were discovered to be innocent. But this, according to the Retentionists is not a reason for abolition of the death penalty, but an argument for reform of the judicial system and the sentencing procedure.

Theoretically, such errors of judgment cannot be absolutely eliminated from any system of justice, devised and worked by human beings, but their incidence can be infinitesimally reduced by providing adequate safeguards and checks. In India, ample safeguards have been provided by law and the Constitution which almost eliminate, the chances of an innocent person being convicted and executed for a capital offence.

Regarding (b): Whether death penalty serves any penological purpose–

Firstly, in most of the countries in the world, including India, a very large segment of the population, including notable penologists, judges, jurists, legislators and other enlightened people still believe that death penalty for murder and certain other capital offences does serve as a deterrent, and a greater deterrent than life imprisonment. There are many examples of it-

Opinions of the Court

In Paras Ram v. State of Punjab [1973], the facts were that Paras Ram, who was a fanatic devotee of the Devi, used to hold Satsangs at which bhajjans were sung in praise of the Goddess. Paras Ram ceremonially beheaded his four year old boy at the crescendo of the morning bhajan. He was tried, convicted and sentenced to death for the murder. His death sentence was confirmed by the High Court. He filed a petition for grant of special leave to appeal to this Court under Article 136 of the Constitution.

It was contended on behalf of Paras Ram that the very monstrosity of the crime provided proof of his insanity sufficient to exculpate the offender under Section 84, Indian Penal Code, or material for mitigation of the sentence of death. V.R. Krishna Iyer, J., speaking for the Bench, to which one of us (Sarkaria, J.) was a party, refused to grant special leave and summarily dismissed the petition with these observations:

“The poignantly pathological grip of macabre superstitions on some crude Indian minds in the shape of desire to do human and animal sacrifice, in defiance of the scientific ethos of our cultural heritage and the scientific impact of our technological century, shows up in crimes of primitive horror such as the one we are dealing with now, where a bloodcurdling butchery of one’s own beloved son was perpetrated, aided by other ‘nious’ criminals, to propitiate some blood-thirsty deity.

Secular India, speaking through the Court, must administer shock therapy to such anti-social ‘piety’, when the manifestation is in terms of inhuman and criminal violence. When the disease is social, deterrence through court sentence must, perforce, operate through the individual culprit coming up before court. Social justice has many facets and Judges have a sensitive, secular and civilising role in suppressing grievous injustice to humanist values by inflicting condign punishment on dangerous deviants.”

In Jagmohan v. State of Uttar Pradesh (1978), also, the Court took due note of the fact that for certain types of murders, death penalty alone is considered an adequate deterrent:

“A large number of murders is undoubtedly of the common type. But some at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high standing in the country society is liable to be rocked to its very foundation. Such murders cannot simply be wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval of the society.”

Examining whether life imprisonment was an adequate substitute for death penalty, the Court observed:

“In the context of our criminal law which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of punishment, and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty.”

In Ediga Anamma v. State of Andhra Pradesh (1974) 4 SCC 443, V.R. Krishna Iyer, J., speaking for the Bench observed that “deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime.”

It was further observed that “horrendous features of the crime and the hapless and helpless state of the victim steel the heart of law for the sterner sentence.”

In Trop v. Dulles (1958) 356 US 86, Brennan, J. of the Supreme Court of the United States, concurring with the majority, emphasised the deterrent end of punishment, in these words: Rehabilitation is but one of the several purposes of the penal law. Among other purposes are deterrents of the wrongful act by the threat of punishment and insulation of society from dangerous individuals by imprisonment or execution.

Opinions of the Jurists and Scholars

Sir James Fitzjames Stephen, the great jurist, who was concerned with the drafting of the Indian Penal Code, also, was a strong exponent of the view that capital punishment has the greatest value as a deterrent for murder and other capital offence.

To quote his words- “No other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositions which it is difficult to prove, simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result…. No one goes to certain inevitable death except by compulsion.

Put the matter the other way. Was there ever yet a criminal who, when sentenced to death and brought out to die would refuse the offer of commutation of his sentence for the severest secondary punishment.”

Even Marchese De Cesare Bonesana Beccaria, who can be called the father of the modern Abolitionist movement, concedes in his treatise, “Dei Delitti a della Pana” (1764) that capital punishment would be justified in two instances,

Firstly, if an execution would prevent a revolution against popularly established Government; and, secondly, if an execution was the only way to deter others from committing a crime.

The adoption of double standards for capital punishment in the realm of conscience is considered by some scholars as the biggest infirmity in the Abolitionists’ case.

Thersten Sellin is one of the penologists who has made a scientific study of the subject of capital punishment and compiled the views of various scholars of the 19th and 20th centuries. In his book “Capital Punishment“, he has made an attempt to assemble the arguments for and against the death penalty.

He has also given extracts from the Debates in the British House of Commons in 1956 and, also, in March and April 1966. In the Canadian House of Commons. In the last part of his book, the learned Editor summarises his ideas about capital punishment. In his opinion. Retribution seems to be outdated and unworkable. It is neither efficient nor equitably administered. “Justice is a relative concept that changes with the times”.

A retributive philosophy alone is not now socially acceptable. “In the last analysis, the only utilitarian argument that has to be given attention is the one that defends capital punishment as being a uniquely powerful means of protecting the community.”

He ends his book with the observation: “I have attempted to show that, as now used, capital punishment performs one of the utilitarian functions claimed by its supporters, nor can it ever be made to serve such functions. It is an archaic custom of primitive origin that has disappeared in most civilized countries and is withering away in the rest.”

Incapacitation of the offenders

These scholars then stress another purpose of capital punishment, namely, incapacitation of the offender, which, in fact, is another aspect of its deterrent effect. To quote their words:

“There is an additional point worth stressing. Even if punishment by execution or imprisonment does not have any deterrent effect, surely it must exert some incapacitative effect on punished offenders by reducing or eliminating the possibility of recidivism on their part.”

Another well-known penologist, Isaac Ehrlich has also made a study of the deterrent effect of capital punishment. The result of his study was published in the American Economic Review in June, 1975. He includes a specific test for the presence of a deterrent effect of capital punishment to the results of earlier studies. Ehrlich has in his study claimed to identify a significant reduction in the murder rate due to the use of capital punishment. A version of his study is said to have been filed with the United States Supreme Court, in the case of Fowler v. North Carolina (1975).

In 1975 Robert Martinson, a sociologist, published the results of a study he had made in New York regarding the rehabilitation of prisoners. Among the conclusions he drew:

“The prison which makes every effort at rehabilitation succeeds no better than the prison which leaves its inmates to rot…. The certainty of punishment, rather than the severity, is the most effective crime deterrent. We should make plain that prisons exist to punish people for crimes committed.” (Quoted in Encyclopaedia Britannica 1978 Book of the Year, pp. 593-594)

Professor Jean Graven, Judge of the Court of Appeal of Geneva, and a distinguished jurist, maintains that the abolitionist must accept, the existing division between civil and military protection. According to him, in doing so, the abolitionist cannot avoid applying double standard and two mutually destructive criteria to their approach to the death penalty.

“For if the death penalty is accepted as protective in principle to society, then it should be so in all cases and in all circumstances in troubled times as well as in peaceful times, in respect of the traitor, the spy, the deserter, or the hostage, as well as of the brigand, the “gangster”, or the professional killer. We must be logical and just at the same time. In the realm of conscience and of ‘principles’, there cannot be two weights and measures.

There cannot be a morality for difficult times and another morality for easy times: one standard for military justice and another for civil justice. What then should be done with those individuals who have always been considered proper subjects for elimination? If the capital sentence is objectionable and illegal…. If the death penalty must be absolutely repudiated because it ‘degrades man’ (quoting Camus) then we accept the position.

But, in that case, no right to kill exists any longer…the greatest war criminals. those responsible – conscious of what they have done and intended to do – for the worst crimes of genocide, who gassed, incinerated in ovens or buried in quicklime a million innocent victims, or allowed them to perish in mines and marsher…. Society has not the right then to kill even these “Monsters”.

The Law Commission of India 35^th Report

The Law Commission of India in its 35th Report, after carefully sifting all the materials collected by them, recorded their views regarding the deterrent effect of capital punishment as follows:

“In our view capital punishment does act as a deterrent. We have already discussed 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 Governments, 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 India.

(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 doubt.

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

Views of the British Royal Commission

The British Royal Commission, after making an exhaustive study of the issue of capital punishment and its deterrent value, in their Report (1949-53), concluded-

“The general conclusion which we reach, after careful review of all the evidence we have been able to obtain as to the deterrent effect of capital punishment, may be stated as follows.

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment, and there is some evidence (though no convincing statistical evidence) that this is in fact so. But this effect does not operate universally or uniformly, and there are many offenders on whom it is limited and may often be negligible.

In a landmark judgment on death penalty ‘Bachan Singh v. UOI (1980)’, the supreme court viewed that whether or not death penalty in actual practice acts as a deterrent, cannot be statistically proved either way, because statistics as to how many potential murderers were deterred from committing murders, but for the existence of capital punishment for murder, are difficult, if not altogether impossible, to collect.

Such statistics of deterred potential murderers are difficult to unravel as they remain hidden in the innermost recesses of their mind. Retribution in the sense of reprobation – whether a totally rejected concept of punishment: Even retribution in the sense of society’s reprobation for the worst of crimes, i. e., murder, is not an altogether outmoded concept. This view is held by many distinguished sociologists, jurists and judges.

Source

Bachan Singh v. UOI (1980)