CHAPTER II

THEORIES OF PUNISHMENT
(WITH SPECIAL REFERENCE TO CAPITAL PUNISHMENT)

In this chapter it is proprosed to analyse various theories of punishment. Austin considered sanction as

an essential ingredient of law. It is only through sanction that obedience to law can be secured. Sanction is

nothing but inflicting pain or injury upon the wrong doer. This in a way can be called punishment. The

immediate consequence of a criminal act is punishment. The term punishment is defined as, “pain, suffer­

ing, loss, confinement or other penalty inflicted on a person for an offence' by the authority to which the

offender is subjected to.”1 Punishment is a social custom and institutuions are established to award punish­

ment after following criminal justice process, which insists that the offender must be guilty and the institu­

tion must have the authority to punish. In this chapter an attempt is made to discuss various theories of

punishment and their efficacy and effectiveness in the light of modem penology.

2.1. NATURE OF PUNISHMENT:

The primary operation of punishment consists simply in announcing certain standards of behaviour

and attaching penalties for deviation, making it less eligible, and then leaving individuals to choose. This is

a method of social control which maximizes individual freedom within the coercive frame work of the law

in a number of different ways....-2

The first moral duty of the community or of the State on its behalf is to reassert the broken moral laws

against the offender who has broken it. For this reason, it must affirm his guilt and deal with him in accor­

dance with it.3 To forgive may be right: to condone is always wrong. A criminal act must not be condoned.

It must be punished.4

Government prohibits taking life, liberty or property of others and specifies the punishments, threat­

ens those who break the law. The intended effect of all legal threats obviously is to deter people from doing

what the law prohibits. The threats must be carried out. Otherwise, the threats are reduced to bluffs, and

become incredible and therefore ineffective 5 Thus, all states punish people whom they identify as crimi­

nals. How a punsihment should be is still a question to be answered. Neo-Kantians proposed the concept of

11
proportionality. “Punishment must fit the crime”, when we say that the aim of punihsment is to prevent

crime. We must accept that man avoids criminal behaviour if that behaviour elicits swift, severe and certain

punishment.6 Many studies by many sociologists and criminologists such as Gibbs, Chiricos and Waldo and

Tittle suggest that the severity and certainty of punishment are additive factors.

But, evidence suggests that the severity and certainty' of punishment are inversely related. Jeffrey

states that severity of punishment can be gained only by sacrificing certainty and that “increasing the

penalties for crime has had negative effect of making the punishment less certain.”7

John Bright throughout his life argued that certainty of punishment was more important than severity

of punishment in preventing the development of crimes.5 William C. Bailey, Assistant Professor of Sociol­

ogy, The Cleavland State University and Ronald W. Smith, Assistant Professor of Sociology, University of

Nevada conducted extensive research in finding whether the severity and certainty of punishment really

deter the criminals. They concluded that the severity and certainty are not substantially inversely related for

the index crimes nor are changes in their level.9

Another facet ofthe punishment is that it cannot be benign to the criminal. But for the society punishment

is and should be a benign process. So punishment is necessarily adverse to the interests of the criminal, but

to the society it is not necessary. The first duty of the state is to dissociate itself from the acts of its own

member. To do this it must act,not only upon but against the member.... 10While acting so, it must exhibit no

antagonism in its will against the will of the offending members. This is necessary for the preservation of its

own character,on which the character of its citizens largely depend.”

All punishments properly imply moral accountability. Community wants the punishment to reach the

criminal’s mind as well as his body; it wants him to suffer remorse for his evil deed: to realize that he had

against him right as well as might. Unless, the community believes these conditions are attained it is unsat­

isfied and the object of punishment is not fully realized 12

2.2. PURPOSE OF PUNISHMENT:

In primitive times, crimes were mainly attributed to the influence of evil spirits, and the major purpose

12
of punishment was to placate the gods.13 Later, in the evolution of punishment more stress was laid on social

revenge, because crime was considered a wilful act of a free moral agent. Society, outraged at an act of

voluntary perversity, indignantly retaliated. Thus, we started punishing primarily for vengeance or to deter

or in the interest of a just balances of accounts between “deliberate” evil doer on the one hand and an

injured and enraged society on the other.14

According to Gouldner, members of the society identify themselves with the victim. Hence, the urge

to punish the offender.Take rape as an illustration. Since, the victims of rape are females, we might hypothesise

that women would express greater punitiveness towards the rapist than men, and that degrees of hostility

would correspond to real or imaginary exposure to rape. Thus, young girls might express more punitiveness

towards rapists than homely women. Among males, we can predict that greater punitiveness would be

expressed by those with more reason to identify with the victims. Thus, males having sisters or daughters in

the late teens or early twenties might express more punitiveness towards rapists than males lacking vulner­

able hostages to fortune.13 This notion in a broader perspective is well expressed by Sir James F. Stephen.

Aecoridng to him the purpose of punishment is to gratify the desire for vengeance by making the criminal

pay with his body. To quote him “The criminal law stands to passion of revenge in much the same relation

as marriage to the sexual appetite.”16 Punishment gratifies the feeling of pleasure experienced by individuals

at the thought that the criminal has been brought to justice. That desire ought to be satisfied by inflicting

punishment in order to avoid the danger of private vengeance. It is plain that however futile it may be, social

revenge is the only honest, straight forward and logical justification for punishing the criminals.17 To carry

out this purpose we need an authority. A criminal has a right to be punished. Because he is treated as a moral

agent - a person who chooses between right and wrong- he is capable of choice.

In the words of Jeremy Taylor “A herd of wolves is quiter and more at one than many men, unless all

have one reason in them or have one power over them.” Hobbes says, “Without a common power to keep

them all in awe, it is not possible for individuals to live in society. Without it justice is unchecked and

triumphant and the life of the people is solitary, poor, nasty, brutish and short.”18

According to Jackson Toby punishing the criminals is necessary a) for preventing crime b) for sustain­

ing the morale of conformists and c) for rehabilitation of offenders.

Those who have introjected the moral norms of the society cannot commit crimes because their self

determined concept will not permit them to do so. Only unsocialised (and therefore amoral) individual fit

the model of classical criminology and is deterred from expressing deviant impulses by a nice calculation of

pleasures and punishments.19 Other things being equal, the anticipation of punishment would seem to have

more deterrent value for inadequately socialised members of the group. According to Durkheim minute

gradation in punishment would not be necessary if punishments were simply a means of deterring the poten­

tial offender. Eventhough punishment is uncertain, especially under contemporary urban conditions the

possibility of punishment keeps some conformists law-abiding.

(b)PUNISHMENT AS A MEANS OF SUSTAINING THE MORALE OF CONFORMIST:

Durkheim talks about punishment as a means of repairing “the wounds made upon collective senti­

ments”.20 According to him, the punishment of offenders promotes the solidarity of conformists. When the

conformist sees others defy rules without untoward consequences, he needs some reassurance that his sacri­

fices (being a law abiding citizen) were made in good cause. If “the good die young and the wicked flourish

as the green bay tree”, the moral scruples which enable conformists to restrain their own deviant inclinations

lack social validation. He feels his sacrifices are not worthwhile. He unconsciously wishes to violate the

rules.

(c)PUNISHMENT AS MEANS OF REFORMING THE OFFENDER:

Now, the trend is towards treatment of the offenders. Criminologists all over the world profess that

criminals are as good or rather as bad as patients, and they need to be treated, not punished. It would be an

error to suppose that punishment is invariably experienced as painful by the criminal whereas treatment is

always experienced as pleasant by the psycho-pathological offender. On this assumption, punishment may

be a necessary preliminary to a rehabilitation programme in as much the same way that shock treatment

makes certain types of psychotics accessible to psychotherapy. Those offenders who regard punishment as

a deserved deprivation resulting from their own misbehaviour are qualitatively different from offenders

who regard punishment as a misfortune bearing no relationship to morality. The former accepts punishment

as legitimate and the other bows before the superior force, because he has no option.
14
 Immanuel Kant, the German philosopher sounds pessimistic when he says: “Judicial punishment can

never serve merely as a means to further another good, whether for the offender himself or for society, but

must always be inflicted on him for the sole reason that he has committed a crime.”21 The object of punish­

ment must be to substitute justice for injustice. According to Paranjape, the principle which underlies the

doctrine concerning the desirability and objectiveness of punishment is to reduce the incidence of criminal

behaviour either by deterring the potential offenders or by incapacitating and preventing them from repeat­

ing the offence or by reforming them into law abiding citizens.22 All said and done we do not yet generally

punish or treat in the sense that scientific criminology would imply, namely, in order to change antisoical

attitudes into social attitudes.23

2.3.THEORIES OF PUNISHMENT:

There are four theories of punishment, namely, retributive theory, deterrent theory, preventive theory

and reformative theory. Of all the four theories retributive theory is the first and foremost. A child who falls

down, kicks the floor inadvertently. Generally, it is believed to be a form of taking revenge and would not

serve any penal purpose. Deterrent theory by punishing the offenders deters the wrongdoer specially and

deters the general public also by punishing him and refrains them from committing an act which is an

offence. Preventive theory incapacitates an offender from repeating the crime,while reformative theory

serves the purpose of rehabilitation of the offender. Modem penologists do not believe in purposeless pun­

ishment. They believe that a criminal is a patient and he be treated with humanity. All these four theories

have their own merits and demerits. They are discussed at length in this chapter.

2.4:RETRmUTlVE THEORY:

Retribution is probably the oldest and most ancient justification for punishment, according to which a

wrong is made right by an offender’s receiving his just deserts. It involves a “get even” spirit, atleast since

the formulation (in about 1875 B.C.) of the Code of Hammurabi (“an eye for an eye and a tooth for a tooth”),

it has been urged by leaders and accepted by the general public that the criminal deserves to suffer.24 Among

the ancient Jews even animals which killed human beings were regarded as contaminated and were got rid of

15
for the good from the community.25 Many authorities have attempted to base the forms of human punish­

ment on instinctive reactions, which might variously be called wrath, anger, resentment or revenge. Both

theologists and philosophers advocated the theory of retributive justice. Some have even sought to demon­

strate the existence of rudimentary punishment in the animal kingdom, in the effort to validate the instinc­

tive basis of punitive action. But, it is hazardous to seek equivalent of human punishmnt in animal behaviour.

But, we often observe, the reaction to crime on the injured party and the public are often indignant and

wrathful and fairly spontaneous. In American society a particularly offensive crime such as rape, kidnap­

ping, cold-blooded murder calls out a wave of popular indignation and resentment. Even in the Indian

Society we often hear of pick-pocketers who are caught red handed and are beaten black and blue. Injuries

and wrongs frequently incite a spontaneous instinctive wrath and anger. Immanuel Kant notices that punish­

ment inflicted neither benefits the criminal nor the society, but the sole and sufficient reason for inflicting

punishment is the evil doer facing the evil:" he did the evil, he suffered the evil. Bentham referring to the

concept of vengeance wrote, “The pleasure of vengeance calls in my mind sermon’s riddle....It is sweet

carrying out of terrible, it is the honey dropping from the lion’s mouth.”26

In the evolution of punishment more stress was laid on social revenge. Society is outraged at an act of

voluntary perversity and indignantly retaliated. It is plain that, however, futile it may be, social revenge is

the only honest, straight forward and logical justification for punishing the criminals.

Retribution theory intends that a man deserves punishment because he has acted wrongfully. What

retribution has insisted upon is that no man can be punished unless, he has broken the laws. To be more

precise, retributionists consider that the offender

i. performed an action of a certain culpability:

ii. that the penalty will give satisfaction equivalent to the grievance caused by his action:

iii.that similar ones have been and will be imposed on similar offenders:

iv. that he was responsible for his action and performed it with knowledge of possible consequences

according to a penalty system and,

v. that unlike non-offenders, he has gained satisfaction on the commission of an offence. As it stands

16
it is worth consideration as a sufficient argument for punishing a man.

Retaliation fulfils a religious mission of punishing the offender it reestablishes the social harmony

affected by the offence and offender’s guilt is washed away through suffering.28 Even if a civil society were

to dissolve itself by common agreement of all its members, the last murderer remaining in prison must first

be executed, so that everyone will duly receive what his actions are worth and so that the blood guilt thereof

will not be fixed to insist on carrying out the punishment, for if they fail to do that, they may be regarded as

accomplices in this public violation of legal justice.29

Plato observed that “It could never be really to harm anyone, however he may have harmed us.” “To

quote Prof. Sidwick,”It seems still to be widely held that justice requires pain to be inflicted on a man who

had done wrong, even if no benefit results even to him or to others from the pain. Personally, I am so far

from holding this view that I have an instinctive and strong moral aversion to it: and I hesitate to attribute it

to common sense, since I think that it is gradually passing away from the moral consciousness of educated

persons in the most advanced communities.”30

In Greek civilisation, Protogaras protested emphatically against atrocious retaliation as the basis of

theory of punishment. He proclaimed humanitarian correctional approach to be adopted. The abolition of

the concept of physical torture and public punishment in the modem society is an indication that goes

against this theory. According to him the theory of deterrence is proper theory of punishment.

Plato adumbrates, “Justice is the good and health of the soul as injustice is its shame and chastisement

is the remedy for the disease. Every culpa (guilt) requires expiation; the culpa is ugly and contrary to justice

and social order. The expiation is beautiful; to suffer for justice is beautiful.” According to Plato he who

punishes rightly punishes justly. Just is noble, nobility is good, and therefore either pleasurable or usefUl.

Plato continues “since punishment does not give pleasure, it must be useful.” If punishment is not useful,

then as Plato says, it would not be just: and therefore everything that is useless in punishment should be

avoided.

However, the demand for punitive reaction still lurks in the minds of individuals. Only aspect is that

we want some justification or rationalization or sentiment for taking revenge. Even the oldest reformer

could not dare to completely breakaway from the tradition based upon retribution.31
17
 At the outset, no penal reformer or legislator can afford to disregard popular notions of good or ill

desert, even if he himself believes them to be quite illusory. Even in advanced societies the punishment of

crime, if it is to be genuinely preventive, must carry popular sentiment with it and to do so, it must appeal to

the popular sense ofjustice. Today’s society inspite of the boasted civilisation expects revenge. But, in the

heart of hearts it feels that State agencies should look after the matter. That is why Stephen observed: “The

criminal law stands to the passion of revenge in much the same relation as marriage to sexual appetite.”32

The sentence of law is to the moral sentiment of the public in relation to any offence is what a seal is to hot

wax.33

2.5. RETRIBUTIVE THEORY AND CAPITAL PUNISHMENT:

There are two aspects in this theory. In the first aspect confirmists say “lex talionis” is right. A killer

deserves to be killed. They do not want to offer any other explanation except that the criminal should die,

because he killed another. The demand for retribution has a shady origin. It springs from the crude animal

impulse of individual or group to retaliate, when hurt by hurting the hurter. In itself such resentment is

neither wise nor good and, in its extreme forms, it is generally condemned as vindictive. Also it often has

morbid accompaniments, such as the impulse which leads boys to run to see a pig being killed. This is due

to a blend of anger and alarm which furiously demands outlet and will not be denied.34 Another aspect of

retributive theory also supports the doctrine of “an eye for an eye and a tooth for a tooth”, but in a subtle way

which sounds philosophical. Both aspects needless to say are supported by the retentionists of Capital Pun­

ishment and both are opposed by the abolitionists of Capital Punishment. For the first aspect an answer is

being given directly and for the second aspect the answer is in the same philosophical tone. The stalwarts

who are engaged in this scholarly battle are Earnest Van Den Haag for retentionists and John P. Conrod for

the abolitionists.

Retribution is to restore an objective order rather than to satisfy a subjective craving for revenge.35

This definition given by Prof. Earnest Van Den Haag was challenged by many a scholar of criminology. The

major term in retributive doctrine is “just desert” which suggests that criminals should not be punished

capriciously. Yet, the retributivists fail to stipulate who is to determine the just desert for a particular type of

crime.36
18
 The argument of retributivists is tha: the criminal should die, because he has committed a terrible

crime, and only his death will satisfy the public and keep it from taking the law into its own hands.37 Ac­

cording to the retributionist, society has the right and the duty to vindicate the wrong done to it and it must

impose a punishment which fits the crime. It does not mean returning of an evil for evil but the righting of

wrong. It implies the imposition of a just punishment.38 Prof. Haag argues that retribution is imposing spe­

cific punishments on people who “deserve” feeling and feelings just are. He does not accept retributionism

as a theory. It is a feeling. It cannot be proved right. But things may be right even if they cannot be proved

scientifically to be true. It is certain at any rate, that the law must to some extent gratify the retributionist

sentiment, the desire to see crime punished, even if it were useless to do so. If the law did not punish the

criminals who harm others, the victims would want to do so. The desire to see crime punished is felt by non

- criminals. If criminals could break the law with impunity, the self restraint of non - criminals would have

been invain. The punishment of the criminals is needed to justify the restraint of the non - criminals. It is

psychologically restorative: it returns the advantage to those who play by the legal rules.

Retributionism although it may tell us why we do punish does not tell us why we should punish. Sir

James Stephen gives the answer: some men, probably, abstain from murder because they fear that if they

committ 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.39 Retributionists insist

that it is unjust and immoral not to punish the offenders. Punishment is good in itself whether it is useful or

not is not the criterion in imposing the penalty.

“We are reluctant to admit how large a part underlying sense of its retributive justice has played in

public approval of Capital Punishment. We feel it is unenlightened and reactionary.... ”No penal administra­

tion or legislator can afford to disregard popular notions of good or ill desert even if he himself believes

them to be quite illusory.40 Perhaps, this is one reason why we are still maintaining death penalty in our legal

books.

Almost a similar view was expressed by Lord Denning before the Royal Commission. “The punish­

ment of death should reflect adequately, the revulsion felt for the gravest crimes by the great majority of the

citizens.”41

19
 It is a question to be contemplated whether sheer retribution is a worthy motive for action by the

political society. “I am revolted by the idea of retribution through officially imposed death just as I am

revolted by the idea of poisoning for money; in neither case in the end, as I able to prove another

person that, that person ought also to be revolted by either of these ideas or by both of them.”42 To

demand an eye for an eye without reference to the context of crime, to the motive which prompted it or

the consequences in which it is used is as absurd as the early English Law which suggested that if a

man has caused the death of another by falling out of tree upon him, the avenger of blood must himself

climb a tree and fall upon the culprit.43

But, our retributive justice is less naive. That is why, it only requires a counter stroke of the same

moral order and magnitude as the offence. The offender’s own aggressive act is not simply reenacted

upon him, but something which deemed to be the crime’s equivalent in value and significance. Just

retribution consists not in simple but in proportionate retaliation, that is, in receiving in return for a

wrongful act not the same thing but its equivalent.44

Rapists cannot be raped; robbers Cannot be robbed; burglars cannot be burglarized. The state

cannot retaliate against these criminals by treating them as they treated their victims. It is neverthe­

less possible for the state to kill, as it must when a man or woman stands convicted for murder. Only

because murder, the crime of crimes, is punishable by death it is regarded with proper horror. Any

less response would trivialize the death of an innocent victim45 The answer for this challenge is found

in his opponent’s answer. The “Lex talionis” cannot be literally applied. The severity of the punish­

ment should be proportionate to the seriousness of the crime, though its form may differ from the

form of the crime, since we cannot steal from burglars, rape rapists or defraud those who commit

fraud. Still, for some crimes we can do something of the kind. It is in the nature of retributivist view

to tiy. Thus, we may fine those whose crimes are pecuniaiy and execute the murderer.46

If the business of the criminal justice system is to punish the guilty, because, and only because,

they deserve it, jurists and and legislators need not be concerned with problematic consequences of

punishment. The retributive theory is not utilitarian. Its goal is “doing justice” rather than prevention

20
of crime.47 The fundamental shortcoming of the retributive doctrine is not that it seeks to justify a legal

punishment as an end itself; rather the doctrine offers no solution to the specific problem that haunts the

criminal justice system. Putting the criticism more bluntly, the retributive doctrine is attractive because it is

little more than an empty formula. That characterization is not a tacit belittlement of the perennial efforts of

retributivists to justify legal punishments. Nonethless, the justification of legal punishments in general is

not a justification of the death penalty, let alone a penal policy.48 Yet, some of the justices are willing to

entertain a distinctly different argument that retribution is a sufficient justification for legal executions.49

It is surprising to note that the retributive doctrine is currently receiving support from numerous schol­

ars.50 “Retributive justice does not require the death penalty to maintain its credibility.” Conrod’s statement

is supported by the following argument. In the legal battle for the prosecution and defence the crime sinks

into a sort of oblivion. All the while, the chief aim of retributive justice, the repudiation of the wrong done by

the criminal, is suppressed in the excitement of the game and its aftermath. At the end, the men are put to

death. A life in prison is severe punishment Manhood and vigour ebb, and years after murder has been

forgotten there may remain a living body sunk in senility. The years in prison cells contribute to apathy, but

surely apathy is not the response that is appropriate to retributive justice, nor is the defiance implicit in the

notion of paying a debt to society by suffering death in return for having caused the death of another. The

response that the criminal should seek and that the state should encourage is atonement. For atonement for

a wrong, done to another is the foundation of the reconciliation between the society and the offender that

should conclude the long process of retributive justice. The essential element in .... retributive punishmaent

is.... the assertion of the good will of the community against his evil will, whereby in one act it condemns

the evil will and reminds him that the good will of the community is also his own: or attest that his duty and

welfare consist in making it so.... 51 Execution of the most contemptible murderer conflicts with the true

functions of retributive justice - the reputations of the evil done and prospective reconciliation of the crimi­

nal with the community he wronged. When punishment lapses into mere retaliation, the criminal’s total

criminality is affirmed; there can be no reason to expect reconciliation. When the retaliation takes the form

of execution, the community makes it clear that it expects neither atonement nor reconciliation. The

21
unreconciled criminal was our enemy: once he is executed he is still unreconciled - a dead enemy.

The scales of punishment that should compose the structure of retributive justice do not require retali­

ation. Capital Punishment can be justified only by retaliatory justices practised in ancient Greece and

Rome.(Retributive thought has gone far from the Twelve Tables of Republican Rome.) For retributive

justice, long imprisonment, sometimes life imprisonment, is the response that fits the continuity of punish­

ments to which modern society is now committed. The death penalty is an anachronism of which society

must purge itself so that the process of retributive justice may contribute to order and solidarity rather than

to the inflammation of hostility. A truly retributive system of justice needs no executions. On the contrary,

justice is disfigured by the barbarous actions that are committed in its name.

The retributive theory is incongruous in an era of enlightenment. The Prime Minister of Canada, Mr.

Pierre Trudeau, addressing the Canadian Parliament, pleading abolition of death penalty, posed a question:

“Are we as a society so lacking in respect of ourselves, so lacking for human betterment, so socially bank­

rupt that we are ready to accept state vengeance as our penal policy?” 32 The Florida special commission on

Capital Punishment recommended retention cf the death penalty on other grounds, but rejected, “vengeance

or retaliation” as justification for the official taking of life.33

The retribution involved in the theory - “Tooth for a tooth and an eye for an eye” has no place in the

scheme of civilised jurisprudence.

2.6. DETERRENT THEORY:

Retributive theory is based on the assumption that punishment is for the sake of punishment. It is

suggested that evil should be returned for evil without any regard to consequences.54 Beginning with the

Age of Reason in the eighteenth century, the aim of the criminal law has gradually changed from punish­

ment for its own sake to punishment as a means of improving social behaviour.33 Punishment is designed

not to take revenge but to terrorise the future offenders. An exemplary punishment should be given to the

criminal so that others may learn a lesson from him. According to Manu ‘Tenalty keeps the people under

control, penalty protects them, penalty remains awake when people are asleep, so the wise have regarded

punishment as a source of righteousness.” He continues, “People are in check by punishment, for it is

22
difficult to find a man who by nature sticks to the path of virtue.”36An eighteenth century judge, while

awarding death sentence to a person guilty of stealing a sheep observed: “You are to be hanged not because

you have stolen a sheep but in order that other may not steal sheep.57

Noted criminologist Sutherland divided this theory into two categories:

1. General Deterrence and

2. Specific Deterrence.

GENERAL DETERRENCE:

Punishment is designed to deter future crime by making an example of each defendant, thus frighten­

ing citizens so much that they will not do what the defendant did.

SPECIFIC DETERRENCE:

Beyond serving the above mentioned purpose, punishment is designed to educate and therefore to

reform the criminals subjected to it. It is also maintained that punishment reforms criminals and that it does

it by creating fear of repetition of the punishment.38

2.7.GENERAL DETERRENCE:

The basic argument for general deterrence is that inflicting suffering upon those convicted of crime

serves to terrorise others, and the punishment has great value for that reason, even if some individuals are

not deterred. When Ohio’s Attorney General William J. Brown made a claim though dramatically that “The

mandatory type penalty structure deters crimes of intent. The criminal when he commits a crime should

know that the judge does not have any discretion. The guy who used a gun should know that he will be put

in jail for ever. That is the only way to solve the crime problem, he,” he not only reflected the mind of his

own but of the law enforcement officers world wide, with few exceptions.39 If prevention of crime is the

chief object of law, terror alone can achieve this goal, opined Lord Chief Justice Ellenborough.

This theory of deterrence is criticised by many. The deterrence principle is mechanistic, holding that

varieties of crimes and varieties of punishments are to be finely balanced that each punishment imposed on

a criminal will have a significant impact on citizens at large, as well as directly on the criminal. In this view,

23
the calculus of deterrence is the basis of criminal law; law makers and others need only do their sums

carefully in order to ensure that appropriate amounts of pain are inflicted on wrong doers, thus convincing

bystanders, that the cost of committing a crime outweighs the benefits.

Besides this, the principle of general deterrence is stated in economic terms, such as “pay the price of

crime” and “pay his debt to the society”. Thus, the economic hypothesis seems to be based on the hedonistic

assumption that people regulate their behaviour by calculations of pleasure and pain. This is a misplaced

faith. It supposedly follows that if the pain element is increased by severe punishments, people will turn

from crime to righteousness.60 Believing this lawmakers and public laid their faith in the cruelty and severity

of the punishment. But, extreme and indiscriminate severity is worse than ineffectiveness. It defeats its own

end by outraging public opinion and rousing sympathy with the criminal. Where ordinary people do not

regard an offence with horror, they will not co-operate in subjecting the offender to a horrid fate, witnesses

will not give evidence, juries will not convict, and, even after conviction, the advisers of the Crown will

hesitate to allow the law to take its own course.61 Giving severe punishment is like bending the bow till it

snaps back.

All said and done, the parameters of deterrent theory - certainty and severity - are psychological

variables. They vary depending upon various factors present in an individual and society as well. When

general deterrence was regarded as the principle purpose of punishment, penalties were made as public and

brutal as possible. Anyhow, if protection is the sole purpose of any punishment, the truth is that the busiest

hangman can do little to protect society in comparison with an efficient police force. Inspite of such argu­

ments from criminologists against the deterrence theory whenever a community experiences a significant

increase in its crime rate - however that rate may be produced - a demand for an increase in cerainty and

severity of penalties arises, based on the assumption that if more criminals are punished more severely, other

persons will be effectively deterred from similar crimes.62 But, it is proved that it is to pay with a “certain

evil” for a “very uncertain good”.

2.8.SPECIFIC DETERRENCE:

It is also maintained that punishment reforms criminals and that it does this by creating fear of repeti-

24
tion of the punishment. The belief is that hurting criminals changes them into non-criminals. When a boy

touches a hot stove, he is painfully burnt, and in that way learns to avoid hot stoves. The philosophy of

specific deterrence is very simple. Pain must be inflicted to get results. All over the world many parents

believe in this philosophy and practises it upon their children. Law enforcement authorities practise the

same upon criminals.

Recently, thousands of experiments in human learning have been run in the effort to determine the

relative values of rewards and punishments in human learning and performance, and these studies are

considered pertinent to policies for the reformation of criminals. But,the effects of punishment, even in

these experimental situations, cannot be stated as a simple proposition. A mild punishment may promote

learning, but a more severe punishment may cause terror and panic which interferes with the whole

learning process. More over, the social situations in which punishments for crime are inflicted involve

variables which are lacking in punishment's administered in experimental laboratories.63

A century ago most of the teachers’ time was in almost all the schools was devoted to the mainte­

nance of order and infliction of punishment. The behaviour of school children in modem schools, in

which corporal punishment is seldom inflicted is much better than in schools of a century ago when

corporal punishment was extemely frequent.64

The deterrent effect of the threat of penal treatment in relation to non-criminals and its deterrent or

corrective effect upon criminals is modified by many factors, such as: the psychological make-up of the

culprit: his previous history: the attitudes of those who administer punishment: certainty and severity:

the psychology of the community that is concerned, etc., All these and more work together to determine

the effect of punishment upon a given individual. The effect of punishment is a human nature problem

and like human nature it admits of no easy analysis.65

2.9. DETERRENT THEORY AND CAPITAL PUNISHMENT:

The belief that the death penalty is the supreme deterrent to murder is hardy perennial and deeply

planted in the human mind and nourished by emotions.66 It presumes that life is regarded by man as a

precious possession which he wishes to preserve eagerly, perhpas, than any other of his attributes.67

25
Death was - must be - was bound to be - could not help being - a great deterrent than any other form of

punishment, and therefore, its abolition was bound to result in a large increase in whatever the crime

in question was.68 Most people will not commit a crime if they know that they may be executed as a

result: this is an outgrowth of man’s instinct for self preservation.69

No other punishment deters men so effectually from committing crimes as the punishment of

death argued Stephen.70 Was there ever a criminal who, when sentenced to death and brought to die,

would refuse the offer of a commutation of his sentence for the severest secondary punishment?”

Stephen’s belief was shared by many. Lord Jowitt said that death penalty’s potency as a deterrent

reduces the number of murders. Lord Brentford, who was Home Secretary (for the British Govern­

ment) from 1924-1929, offered the same proof. In all his five years tenure of office he had only known

one case in which the condemned man had been content to be hanged: in all other the man and his

family strove their utmost to save him from the gallows. That to his mind, was conclusive evidence of

the value of the death penalty as a deterrent.71 Given the choice between life in prison and execution

nintynine percent of all prisoners under sentence of death prefer life in prison....it follows that the

threat of death penalty is likely to deter more than the threat of life in prison.72

Lord Wright thought that “deterrence could obviously not to be proved by evidence. It was a

conclusion that must be drawn from the general impression one gains from experience, from looking

around the world, from seeing how things are done and how people feel.73 Lord Simon had no doubt

that Capital Punishment prevented more murders to an extent that no other punishment could. It was

not a matter of statistics but of the judgment and common sense.74 Lord Bridgeman based his belief in

the deterrent force of the penalty. “.....more on what I think is my knowledge of human nature than

anything else.”75

Bishop of Truro on the value of the death penalty as a deterrent felt that his own feelings were a

surer guide than any statistics from other countries and he was sure that the death penalty would be a

great deterrent to him if he were to be contemplating murder76 Surely, a murderer, for whom a pos­

sible death penalty had to be proved no deterrent, would be considered abnormal were he not to make

26
every effort to escape death after being discovered and sentenced to die.77 Earnest Van Den Haag sup­

ports death penalty as a deterrent from another point of view, “....if rehabilitation and the protection of

society from unrehabilitated offenders were the only purpose of legal punishment the death penalty could

be abolished: it cannot attain the first end and is not needed for the second. No case for the death penalty

can be made out unless “doing justice” or “deterring other” are among the penal aims.”78 When the

threatened punishment is so light that the advantage of violating rules tends to exceed the disadvantages

of being punished; greater the threatened penalty, the more it deters; the threat of fifty lashes deters more

than the threat of five; $ 1000 fine deters more than $ 10 fine; ten years in prison deters more than one

year in prison. The threat of life in prison deters more than any other terms of imprisonment. The threat of

death may deter still more. It is a mistake to regard the death penalty as though it were of the same kind

as other penalties.... death differs significantly in kind, from any other penalty. Life in prison is still life,

however unpleasant it may be. In contrast, the death penalty does not just threaten to make life unpleasant

- it threatens to take away the life altogether.

The death penalty is the only possible deterrent. In cases of acute substantial attempts to overthrow

the government, prospective rebels would altogether discourt the threat of any prison sentence. They

would not be deterred, because they believe that the swift victory of the revolution will invalidate a prison

sentence and turn it into advantage. Execution would be the only deterrent, because unlike prison sen­

tence, it cannot be revoked by victorious rebels. The same reasoning applies to deterring spies or traitors

in war time. Finally, men who, by virtue of past acts are already serving or are threatened by a life

sentence could be deterred from further offenses only by the threat of death penalty.79 If the life imprison­

ment is substituted for the death penalty, a man who has committed a crime for which he may be sen­

tenced to life imprisonment would be likely to commit other serious crimes, because, he would also know

he was already subject to the maximum penalty.80

Prof. Ehrlich published an article in 1975 in which he wrote that Capital Punishment is more effec­

tive deterrent than life imprisonment. During 1935-1969 he employed number of assumptions and con­

cluded each execution deterred seven or eight murders. In contrast to this proposition Friedman and

27
Passes and Taylor have claimed that instead of each execution being associated with seven or eight fewer

murders, each execution associated with fourteen more murders. Ehrlich criticises this argument as an

attempt to prove that executions generate murders. However, neither of them could successfully prove

their propositions.81 Royal Commission on Capital Punishment observed that “Prima facie (i.e. common

sense tell us) the penalty of death is likely to have stronger effect as a deterrent to normal human beings
i

than any other form of punishment, and there is some evidence (though no convincing statistical evi­

dence) 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. It is accordingly important to view this

question in a just perspective and not to base a penal policy in relation to murder on exaggerated esti­

mates of the uniquely deterrent force of the death penalty.82

Before arriving at this conclusion, the commission had noted that “Capital Punishment has obvi­

ously failed as a deterrent when a murder is committed. We can number its failures. But, we cannot

number its successes. No one can ever know how many people have refrained from murder because of

the fear of being hanged. For that we have to rely on indirect and inconclusive evidence.”83 If we keep in

mind that the issue is not the deterrent force of punishment but the claim that the death penalty is a more

“efficacious deterrent of crime” than any other punishment, it is obvious that all the dogmatic assertions

quoted above are simply personal opinions unsupported by any scientific evidence and based on intuition

and common sense, which are untrustworthy guides. Common sense once upon a time told us that the

earth was flat.84 “Common sense is the wisdom of the common man. It rises up from the general experi­

ence of ordinary people. It does not depend on specialized education, on the acquisition and manipulation

of data, or on the subtleties of the logician. Common sense has nothing to do with the reason for commit­

ting a criminal act, and probably almost nothing to do with the reason for abstaining after serious consid­

eration of committing a crime.”85

The same view was expressed by Sir Romily long back. Death penalty deters offenders - might be

so in theory, it would not happen in practice: the chief deterrent to crime was not severity of punishment

but certainty of conviction.86

28
 If those who profess deterrence as an effectual threat are correct the following hypotheses should

hold good:

1. Death Penalty jurisdictions should have a lower annual rate of criminal homicide than

abolition jurisdictions.

2. Jurisdictions which abolished the death penalty should show increased annual rate of

criminal homicide after abolition.

- 3. Jurisdictions which reintroduced the death penalty should show a decreased annual rate

of criminal homicide after reintroduction.

4. Given two contiguous jurisdictions differing chiefly in that one has the death penalty

and the other does not, the latter should show a higher annual rate of criminal homicide.

5. Police officers on duty should suffer a higher annual rate of criminal assault and homi

cide in abolition jurisdiction than in death penalty jurisdiction.

6. Prisoners and prison personnel should suffer a higher annual rate of criminal assault

and homicide from life term prisoners in abolition jurisdiction than in death penalty jurisdiction.87

Thorsten Sellin after a serious and thorough study of the entire subject in United States on behalf of

American Law Institute concluded “Anyone who carefully observes the data is bound to arrive at the

conclusion that the death penalty as we use it, exercises, no influence on the extent of fluctuating rate of

capital crime. It failed as a deterrent.”88 Many a scholar shared his point of view.89

Sellin’s findings have been cited as superior to Ehrlich’s because of the existence of several signifi­

cant factors in his study. His work has also found support and acceptance injudicial quarters. Panel of

research on “Deterrent and Incapacitative Effects” which was commissioned by the National Acadmy of

Sciences to review “deterrence reserach” concluded that available results of analysis on Capital Punish­

ment provided no useful evidence on the deterrent effect of Capital Punishment for policy purposes.90

Ehrlich himself all along maintained that proof for his conclusion is not possible.91

British and Canadian papers as well as the works undertaken by the European Council, the Com­

mittee for the Prevention of Crime created by the United Nations and The European Parliament Studies

29
concluded “violent crime follows a curve that is a function of social and economic conditions and the

evolution of the moral values of society at a given moment. It is unaffected by existence or absence of

Capital Punishment. In otherwords the death penalty does not reduce nor does its abolition increases it.”92

Knorr observes that when human lives are at stake, it does not seem reasonable to weigh lives against

such questionable statistics as that of Ehrlich’s.93

The repudiation of death penalty is till now based on statistics. On theoretical grounds also it is

strongly contested. “Whether death is the penalty or not good men and women abhor violence... .particularly

when it is homicidal.” In America the number of murders is less than 0.1% of its total population. Conrod

finds no reason to believe that the remaining 99.9% are refrained from killing only by the threat of the

hangman.94 This reasoning that Capital Punishment is an effectual deterrence assumes that potential

criminals are rational men. They want to maximize gains and minimize losses. The rational criminal man

if he exists at all, seldom commits murder, and when he does, his crime is usually impossible for the

police to detect.95 Criminals are not economists, and when they kill they do not take into account the risk

of such behaviour, but kill out of infuriated frustration.96 Further this theory preserves the idea that law

can have no deterrent effect upon a potential criminal, if he is unaware of'its existence.97

There is no evidence to support that abolition of death sentence would lead to an increase in crime.

In Goa and Travancore in India, where Capital Punishment was not in force for many years, the evidence

amply established the fact that absence of the death penalty did not increase crime. In the twenty two

countries that have completely abolished it, there has been no increase in the rates of homicide.98

Assuming that offenders are deterred by death penalty there are another category of criminals who

commit murders as a result of psychopathic compulsion who are relatively immune to the deterrent effect

of death penalty, “....no person in our society is in a normal state of mind, when he commits murder. A

high percentage are not only emotionally scarred and twisted but are actually psychotic”99. Gerald Gardiner

supports the observations of Glueck..100 It is interesting to note the Indian experience in this context. “In

....majority of cases murder is unpremeditated and is the result of some uncontrollable passion, cupidity,

lust, revenge, jealousy, anger, fear, pity, despair, self-righteousness, political fanaticism and duty. The

30
 deterrent effect of Capital Punishment certainly cannot function when murders, are committed in such
psychological state of mind.”101
Former Supreme Court Judge of India, Krishna Iyer holds the opinion that there are generally
three kinds of murderers - those who kill on impulse and therefore do not consider the noose before
committing the murder, those who are hardened criminals and are again unconcerned with their even­
tual punishment and lastly, those who kill because of belief and justification in what they are doing. In
all the three cases the eventuality of a death penalty does not deter the killer. If at all there is any other
deterrent effect, it lies in the certainty of such punishment and not in its severity.102
Almost the same view is expressed by noted criminologists Barnes and Teeters:”.... nor can the
death penalty be supposed to act as an effective deterrent in the case of the professional gunman. He
realises that his chances of being apprehended for his crime are relatively slight: that the probability of
his conviction after arrest is not more than fifty percent; that he runs a fair chance of being released on a
technicality in appeal, even if he is convicted; and finally, if he is sentenced to death, he is likely to have
this sentence commuted to life imprisonment may ultimtely be pardoned and restored to a life of free­
dom. Probably the death penalty does no: have deterrent effect on those who commit murder to settle a
deep seated grudge. Because, any fear would be outweighed by the strong pressure to commit murder
and the consciousness of large probability of escaping in application.”
‘The death penalty even if applied invariably to every apprehended and convicted murderer with­
out any subsequent intervention of commutation or pardon, would not even seriously deter many of
those whose personality types would respond to the operation of deterrent influence.”103
“ for murderers who act in passion the threat of death has little or no deterrent effect. It should be
borne in mind that the large majority of murders are committed without premeditation many of them by
good citizens who have committed no previous offence, in circumstances which preclude any consider­
ation of the consequences. The relatively small number of planned murders are committed by men who
believe that they will never be found out.”104 Professor Conrod makes reference to poverty stricken, ill
experienced robbers who lack planning and in panic cause the death of the victim. Capial Punishment
does not affect their behaviour.105
Not only the theory of deterrence has been subject to intense criticism, but also the use of Capital
Punishment has been critically questioned as to its desirability in a society espousing the goal of rehabili­
tation and not retribution.
Life is generally regarded as man’s most valued and even sacred possession, and the protection of
life by avoidance of doing deliberate harm to others or to ourselves is taught to us from childhood in
many ways by many means. When inspire of this general social aversion to murder, killing occurs it
means that the perpetrators have eithrr not been properly taught to respect human life or that they find

31
themselves in a situation where hatred, desire, anger, greed, necessity, or other mores of a group to

which the offender belongs, acquire such dominance that all else is ignored or forgotten, including the

possible punishment.106

Even if it is assumed that the potential fear of death can deter a crime, this in itself may not be

necessary and sufficient reason for the use of death penalty. This.comment is made by none

else than the ardent retentionist of death penalty Professor Van Den Haag.107 “If deterrence does

not work, the implication is that the execution of a person becomes a means to influencing the behaviour

of another. Is such coercive mechanism which sacrifices human life just? Is a process which aims at

attempting to solve a problem by creating fear reasonable?” 108

“Discounting war and revolutions, all but very few people, even most murderers, consider the

taking of life as a terrible moral wrong. It is this feeling that ultimately is the great deterrent”

Anyhow,”.... the deterrence hypothesis may have no real basis in fact. Therefore attempts to

justify the use of Capital Punishment by relying on this theory must be carefully examined, and evalu­

ated, since the consequences of accepting such a justification as legitimate is literally a matter of life or

death.”109

2.10. PREVENTIVE THEORY:

This theory was meant to restrain an offender personally from repeating a criminal act by inca­

pacitating him, by such punishments such as imprisonment, death or exile.110 In ancient times this form

of punishment had a bearing on the nature of the crime and member of the body most responsible for

commission of such an offence thereof used to be incapacitated. For example the hands of a thief have

a major role in an offence of theft. Chopping the hands of the thief would hence incapacitate him from

repeating theft.111 The punishment for perjury was cutting one’s tongue. Capital Punishment and exile

served the purpose of incapacitating an offender, whatever may be the crime. This does not act much

on the motive of the offender, but disable his physical power to repeat the offence. Howevewr, now the

criminal justice system does not turn to barbaric punishments such as mutilation and exile, though

death penalty is in the statute books of many countries.

32
 The notion that punishment is necessary to protect the society from criminal had been growing in

importance. Punishment is for social defence and solidarity. In such a background prisons came handy

to serve the dual purpose of protecting the society and punishing the criminal. The incarceration of the

culprit has the result of severing him from the society and eventually preventing him from laying his

hands again on similar crime or other crimes atleast temporarily for the period of incarceration. This is

attended with the smug belief that the isolation and some sort of rigorous labour which will give a

feeling of degradation and self remorse. It may help in eradication of any future motive in his mind.

Prisons not only serve the purpose of severing the culprit from the society, it further deprives him

of his personal liberty, which one values most after one’s own life. Thus, incarceration serves three

purposes: protection of the society, incapacitating the offender without turning to barbaric mutilations,

and punishing the offender by deprivation of liberty. Thus prisonisation of criminals was considered to

be the best method of prevention of crime.

Sutherland, as well as Bamess and Teeters, the modem criminologists observed preventive theory

from a different angle. First realising the necessity of removing the social and economic forces that

induce attitudes leading to delinquncy and crime, and secondly, focussing attention on the individual

who shows potentialities for anti-social behaviour either because of biological and psychological handi­

caps or lack of social or economic opportunities for attaining a desirable integration.112

The first goal, which aims at creating such social and economical conditions in the society which

prevent the offender to commit a crime, is very difficult to achieve. Removing social and economic

forces that induce attitudes leading to delinquency and crime is the aim of social reformers, social

workers and above all politicians. Nobody could do it till date - not even Marxists and nobody can do it

in the near future.

Though Marxists hold that crime generates from economic inequalities, that is not the only fertile

ground for criminality. The behaviour of man is unpredictable. Criminality depends on various other

factors, psychological and personal also, which are nothing to do with economics. At any rate, removing

such social and economic forces which generate crime is ruled out.

33
 Then remains the second goal focussing the attention on the individual. That is what precisely the

modem criminologists advocate. As Krishna Iyer J. stated the attention should be on criminal and not on

the crime 113

2.11. PREVENTIVE THEORY AND CAPITAL PUNISHMENT:

The preventive theory which is known as incapacitative theory also is a good weapon in the

armour of retentionists. Their argument is not to keep the offender behind the bars, though that amounts

to incapacitation. They argue, murderers are hanged not merely to deter people from meeting similar

end but to eliminate such offenders, lest they repeat their crime. In case of life imprisonment the chances

of parole, remission, pardon, commutation etc., are available. Retentionists do not want any of such

privileges to be available for a killer. Killing the killer is the best method of prevention, according to

them.

This theory is a two edged weapon, used for the argument of abolitionists also. They advocate that

life imprisonment serves the purpose of prevention of crime. Incapacitating the prisoner behind the bars

throughout his life is the best method of prevention. Professor Conrod argues that wife killers, who

commit murders at the spur of the moment, once in the prison are docile, guilty and the survivors of an

irreversible tragedy. They never repeat their crime.114

2.12.DEATH PENALTY FOR PREVENTION OF CRIME AND FINANCIAL FACTOR:

Retentionists of Capital Punishment continue their argument by stating that though life imprison­

ment is also a preventive measure death penalty is cheaper than that.115 Maintaning a killer for twenty

years at the cost of public exchequer is not proper.

Advocates of abolition counter this argument by observing that execution is not actually cheaper

because the trials of death penalty cases are ordinarily much longer than trials of other cases, which

would cost more. The expenditure for death houses (such as gas chamber and electrocution) and the

close custody which must be maintained for the condemned man is not less. However, considering the

fact that executions could be purchased for less money than life imprisonment is not fair, humane and

just. Indeed if financial implication were the only issue, and if citizens could be killed cheaply, then it

34
would follow that we should kill insane and mentally retarded persons, as well as criminals whose

institutional maintenance would cost more than their executions.

Conrod further continues his argument on behalf of the abolitionists. “This cost is not inherent in

the penalty, but imposed by judges. It is not cheaper to keep a criminal confined, because most of the

time he will appeal just as much causing as many costs as a convict under death sentence. Being alive

and having nothing better to do, he will spend his time in prison conceiving of ever new habeus corpus

petitions, which being unlimlited, in effect cannot be rejected as res judicata. The cost is higher.” How­

ever, he accepts that it is not a decisive factor.116

Moreover, now-a-days, the treatment and training programmes in prisons have been considerably

improved in tune with the modem trends in correctional jurisprudence. There is ample opportunity for

a prisoner to learn a trade in prison in accordance with his aptitude and interest and earn remunerations

during his incarceration. He cannot only learn but be able to pay for his maintainance in the prison,

contribute towards the support of his dependants and if necessary, make payments to the relatives of the

victims of his crime. The idea that hanging is less expensive is not correct.117

It is the lifer who becomes a man, leaving gradually his preoccupation with self as the routine of

prison life removes the stress of programmed death. Some of them achieve a sort of goodness, as

though atonement for atrocities committed in the past can be achieved in the calm monotony that is

possible for lifers 118

Prevention of crime can be achieved by segregating offenders. Not much longer can we hang

them and feel that we have done all that is necessary.119 We must punish no more than we must. The

death penalty is needless in an age when maximum security prisons are available.

2.13. REFORMATIVE THEORY:

Retribution and deterrence are the philosophies of the classical and neo-classical schools, with

their emphasis on “let the punishment fit the crime”. The positive school on the otherhand, emphasises

the importance of the “punishment fitting the criminal”. It is the individual criminal, not the crime, that

is the focal point in the positive thinking. Reformative theory emerged of such positive thinking. Ac-

35
cording to this theory the object of punishment should be the reformation of the offender. This is not

virtually a punishment, but a mere rehabilitative process. It aims at making the criminal as far as

possible a better citizen by means of moral and ethical training, that is teaching him to go straight as an

upright man and meaningful citizen. This is founded on the surmise that a crime is not the result of an

original sin in a criminal but is much more a product of its environment, his lack of opportunity and

training.120

Until the present century, almost all attempts to change criminals were mass methods designed

to modify the criminal in some mechanical manner.

The classical theory suggested that reformation would occur if enough pain was inflicted on the

offender. A second method designed tc change criminals was meditation, generally enforced by isola­

tion: for some it may work, but generally this procedure has not been effective. Third method was

moralising by sermons in the name of God, mother, country etc., Fourth method was asking the of­

fender to sign a pledge or in some other way make resolutions to live a law abiding life. Fifth method

of reformation was mechanical habituation, produced by various punitive regimes including hard and

dreary work in the prison and rigid prison discipline.

These five methods were examples of the effort to change the criminal in the past. Although they

have been carried over to the presen:, they reveal the importance of knowing more about human

behaviour than was known in the last century.121

The present century researches in the field of criminal science brought about a radical change,.

The new approach focussed greater attention on the individual who committed crime rather than the

crime itself. The five methods explained above were also meant for reformation of the offender. But,

the difference between last century approach and present century approach is that in the last century

reformation was taken up on the mass level, and in the present century every individual is treated

separately and attended to individually. The present day reformists advocate that sympathetic, tactful

and loving treatment of the offender would bring a revolutionary change in them. They want to punish

criminals “as little as possible” and improve them as much as possible.122 The advocates of this theory

36
emphasise on rehabilitation of the convicts in peno-correctional institutions, so that they are trans­

formed into good citizens. 123

In furtherance of this theory, Borstal Schools had been set up. Probation of Offenders Acts were

enacted throughout the world. Parole Boards came into existence. Indeterminate sentences, furlough,

suspension of sentence - are all the bye-products of this theory. The reformative theory stretched

further in 20th century and “Open Air Institutions” emerged as a novel idea for reforming the criminals

without inflicting any pain. The open prisons which accomodate primarily the life convicts, most of

them being murderers, prove that no man is a bora criminal.

Salmond criticises this theory by observing that if criminals are to be sent to prison to be trans­

formed into good citizens by physical, intellectual and moral training, prisons must be turned into

comfortable dwelling places. However,, he observes that reformative element must not be overlooked

but neither must it be allowed to assume undue prominence 124

It is submitted that modem prisons must transform into reformatories with a programme of

work, education, and religious services with the purpose of rehabilitating the offenders and preparing

him for adjusting himself into a law-abiding citizen.

2.14. REFORMATIVE THEORY AND CAPITAL PUNISHMENT:

The global winds are blowing in favour of reformatory and rehabilitatory process of punishment,

as a result of progressive changes in the penological field. The concept of retribution is outdated. The

object of punishment is not to torture the criminal nor to undo his crime. The purpose of punishment is

to deter others and reform the criminal. The punishment should be such which makes strong impres­

sion on the minds of others with least suffering to the criminal. As a result of pathological studies in

the field of criminology and penology, it has been proved that there is no direct connection or relation

between crime and punishment. On the otherhand there is no substantial proof of the fact that the ratio

of crime increases because of soft or civilised punishment.125 The civilised goal of the criminal justice

is the reformation of the criminal and death penalty means abandonment of this goal for those who

suffer it.126

37
 Prof.Conrod observes this aspect from a totally different angle. According to him, it is the lifer

who becomes a man. Condemned prisoners cannot think of others. They seldom express regrets for

their killing. They could only think of themselves and thier scheduled deaths.127 But, some of the

lifers achieve a sort of goodness, as though atonement for the atrocities committed in the past can be

achieved in the calm monotony that is possible for life prisoners.128 Obviously, death penalty cannot

serve the reformatory goal, because it extinguishes life and puts an end to any possibility of reforma­

tion. It defeats the reformatory end of punishment.

A sentence that provides for unpaid public services or monetary compensation to the victim’s

family or personal services to them when monetary compensation is not feasible serve the purpose of

punishment better than simply taking away the life of the offender. In fact, this we find in Sukraniti,

according to which this bad practice of Capital Punishment violates the vedic injunction and should

be replaced by imprisonment for life, if necessary, and a natural criminal should be transported to an

island, or fettered and made to repair the public roads.129

Conrod further observes “I have seen many murderers who have chosen service to others - as

best as they could with limited opportunities - as their way of expiating guilt for an offence - a guilt

with which they must live for the rest of their lives.” The most famous such case is that of Nathaniel

Leopold, convicted for a crime of the utmost atrocity, who dedicated himself to the education of

criminals and to research leading to their better understanding. Less gifted murderers have chosen to

make their lives as useful as possible to others - to fellow prisoners, to a large society when they can.

The case of Pancham Singh is a very good example to illustrate this. Pancham Singh Chauhan was a

dreaded bandit, who headed a 60 - member gang of hardcore dacoits in the notorious Chambal

Vailey. He was so desperately wanted by the police that they announced a hefty reward of Rs. 1.30

lakhs to anyone who gave them information which might eventually lead to his arrest. Some of the

offences he had committed were murders, kidnappings and dacoities.

When the police turned the heat on him Pancham Singh and his band of bandits finally surren­

dered to them. Though they surrendered, the Court, which tried their offences sentenced them to

38
death in view of the gravity of their offences. But for the late Jayaprakash Narain, Pancham Singh

and his gang would have been dead by now. The Government reduced their death sentence to life

imprisonment. But, they were released after eight years, in prison obviously for their good behaviour.

Pancham Singh, who afterwards became a Rajayogi in Brahma Kumari movement, spent the

booty he had looted for charitable purposes. He constructed a school in Madhya Pradesh. Now, he is

66 years old and leading a peaeful life with his wife and two sons and two daughters. He is eking out

his living by growing a vegetable garden in the six and half acre land allotted to him by the Govern­

ment under the ex-dacoits rehabilitation scheme.130 Krishna Iyer makes a mention of Valmiki and

Aurobindo, the first being a hunter in a forest and turned the great epic writer and the second was

implicated in a conspiracy to murder and in prison he became Krishna conscious and enriched global

life with a boundless light. To hang a man is to deny an embodied soul the sublime honour to trans­

form himself and humane, a human being. It is a path that they cannot follow when they must go to

a scheduled death.

Some people experienced in the handling of prisoners have concluded that murderers are among

the best behaved prisoners.131 Statistics show that most persons convicted for murder are successful

parolees. Of 36 persons under life sentence who were paroled between 1943 and 1958 in New York

only two were returned to prison - one for technical offence and the other for burglary. Most of these

prisoners would have been executed if their sentence had not been commuted.

In a study by the Philadelphia Bar Association in-1951, of 215 persons pardoned after serving

varying terms on sentence of life imprisonment for murder, it was found that only seven were later

arrested and of these only one was for murder.132 It is generally accepted that lifers who have escaped

the death penalty for murder make the best prisoners and after serving a relatively long term keep out

of trouble. These and many other examples clearly show that it is not possible to know before hand

with any degree of certainty that a murderer is beyond reformation.133

It is absurd to think of punishing a person who is suffering from cancer or any other malignant

disease. Indeed, it is likewise absurd to punish those who are socially ill to the degree that they

39
commit socially disapproved acts. We must reduce so far as possible, the unhealthy social environ­

ments that generate those bad habits that emerge in criminal conduct, and set up systems of treatment

that will rehabilitate reformable convicts. The problem of Capital Punishment appears to be relatively

important in relation to the much broader and more fundamental series of problems that involve crime

causation, criminal jurisprudence and the rehabilitation of criminals. By killing them we are depriving

the offenders a chance of atoning their wrongs.

“...every saint has a past and every sinner a future, never write, off the man wearing the criminal

attire but remove the dangerous degeneracy in him, restore his retarded human potential by holistic

healing of his fevered, fatigued or frustrated inside and by repairing the repressive, though hidden,

injustice of the social order which is vicariously guilty of the criminal behaviour of many innocnet

convicts. Law must rise with life and jurisprudence respond to humanism.134

Our attitude to murder and the treatment of offenders is entirely unrealistic. It is rather - like

panic response. A man kills, we cannot tolerate this, of course, and something must be done, so we kill

him. The incidence of murder has not been reduced, the man is certainly no better off, and neither is the

society. The response seems to be rationalized rather than reasoned...we are certainly not adopting the

best approach; we have, in Freudian terms, fixated.

If we abolish Capital Punishment we shall have lost nothing; we shall not have endangered the

society, and we may do some practical good, because our energies may be diverted to solving the

problem by new techniques.135 An execution is a needless tragedy, an anachronism whose survival

does great harm to society without accomplishing any comparable good. Orwell’s instinct was correct.

An execution is both wrong and tragic.136...’’condemned man has lost the universal human power of

correcting his ways.” 137

The criminal always remains a human offender, and as a human he is always free to learn new

values and new adaptations. When Chessman was executed millions across the globe felt that “the

man killed on Monday by the Sovereign State of California was not the same man whom the State’s

Courts originally sentenced....California sentenced a young thug: it killed a man who learned law, and

40
probably citizenship, the hard way.”138 Then would it be right to extinguish the life of a human being

merely on the basis of speculation - and it can only be a speculation and not any definitive inference -

that he cannot be reformed. ‘There is divinity in every man and no one is beyond redemption.” 139

The imposition of punishment is justified only by its ability to reeducate an offender and thereby

to return him to society as an integral human being. The evil doer cannot be done to death. Capital

Punsishment cannot serve the goal of reformation. Because it extinguishes the life, thus puts an end for

the reformation. Krishna Iyer recalls Victor Hugo: “We shall look upon crime as a disease. Evil will be

treated in charity instead of anger. The change will be simple and sublime. The cross shall displace the

scaffold.”140

The hope of reforming even the worst killer is based on experience as well as faith and to legitimise

the death penalty even in the so called exceptional cases where a killer is said to be beyond reformation

would be to destroy the hope by sacrificing it at the altar of superstition and irrationality.141 Even the

Royal Commison on Capital Punishment concurred with this view. “Not that murderers in general are

incapable of reformation, the evidence plainly shows the contrary. Indeed, the experience of countries

without Capital Punishment indicates that the prospects of reformation are atleast as favourable with

murderers as with those who have committed other kinds of serious crimes. The released murderers

who commit further crimes of violence are rare, and those who become useful citizens are common.”142

So long as the offender can be reformed through the rehabilitatory therapy which may be admin­

istered to him in the prison or other correctional institution and he can be reclaimed as a useful citizen

and made conscious of the divinity within him by techniques such as meditation, how can there be any

moral justification for liquidating him out of existence?143

In what does doing justice to man consist? In giving him his due. You give fish its due by

allowing it in water: you give an artist his due by encouraging him to paint his best pictures: and you

give a man, any man, his due by fostering his power to realise as completely as possible, his manness,

his essential humanity : you cannot do that by killing him.144 Lex talionis a tooth for tooth, but no more

than a tooth, a life for life no more than a life, but only for a life, is the origin of judicial murder, or

41
Capital Punishment. But,another great advance was to come: Christ came into the race of talionis and

explained what was wrong with that law. You can never get a just society - by mechanical squaring of

accounts; you can get only when people learn to give and to love - and once they have learned it they

discover that the giving and loving is their own free development itself, as well as that of others. So

you must forgive, unto seventy, times seven; must love your enemies, including the enemies of the

society.145

2.15.:FUTURE OF THE PUNISHMENT:

Punishment must be just. It must be directed to the good of the society. A punishment which

prejudices rather than promotes the good order of society is plainly not just, no matter how guilty the

offender may be, how well founded the authority which imposed the punishment may be.

Punishment ought to be medicinal rather than retribuitive. In his disclosure to the Catholic

Jurists of Italy in December 1954 Pope Pius XII stated that the limction of punishment is “the redeem­

ing of the criminal through repentance” and thus seemed to set the reformation of the offender as the

primary end of penal sanction.146

There is a general belief that has persisted since the late eighteenth century that punishment

must have an aim. Retributivists punish because the criminal is guilty. According to them the crime

itself justifies the punishment and punishment has no other purpose than to be imposed as a legal

consequence of the guilt.147

Punishment is categorically imperative, the guilty criminal must be punished, but moral order

demands that the punishment should be proportionate to the gravity of the offence.14* Utilitarians

would punish because they seek to prevent crime by intimidation, incapacitation or reformation of the

criminal and by presenting his fate to the general public so that the like minded may see what the

consequences of a criminal act will be. However, histrov has shown, critics contend, that punishment \

has never reduced crime to any marked degree. To maintain that punishment is imposed in order to

prevent crime is to offer an answer to the question ofthe aim of penal legislation. To say that punishement

is imposed because the criminal has incurred guilt is to offer an answer to the question of the justifica-

42
tion for imposing penalties.149

To conclude, punishment is the proper immediate consequence of the criminal act, a stage in the

criminal justice system. It should be administered in such a way that the criminars reconciliation to

the community is not impeded.150 Perhaps, in future, in imposing the punishments, authorities would

take this point into consideration. Our probation laws, parole system, open prisons etc., aimed at this

goal only.

2.16. ARGUMENTS FOR RETENTION AND ABOLITION OF CAPITAL PUNISHMENT:

Some people advocate abolition of Capital Punishment, while some strongly oppose the abo­

lition of Capital Punishment. Those who object the abolition and propagate in favour of retention are

called retentionists, and who advocate the abolition of Capital Punishment are known as abolition­

ists. The specialists of social sciences, criminologists, sociologists, penologists, psychiatrists, doc­

tors and writers on social sciences and criminology are, in their great number abolitionists. The

supporters of Capital Punishment, apart from a number of political figures and persons holding high

public office, are generally jurists with a traditional training and judges.151 Law enforcement and

prosecutorial groups tend to be strongly supportive of Capital Punishment.152

There are three aspects to the question of Capital Punishment: first the moral-humanitarian,

religious; secondly, the popular the views, the prejudices and superstitions of a common man in the

street; and lastly, the scientific viz., penological, psychiatric, sociological, in short, the accumulated

knowledge and experience of various brands.

However, the controversy between the two groups is as old as the issue of death penalty itself.

The debate dates back to Bible in the Western world and Mahabharata in the East. In this section an

attempt is made to present the views of both retentionists and abolitionists.

2.17. ARGUMENTS FOR RETENTION:

In primitive societies and even in the more developed societies which suceeded them, from the

Greece-Roman civilization to the Middle Ages and the Renaissance upto the 17th century, one no­

tices the persistence of the idea of talion uner the form of individual or tribal vengeance. When the

43
respect for life began to be widely admitted one tried to show that the death of the criminal was

complement in such a way that it could be said to be both just and necessary.133

(a) CAPITAL PUNISHMENT HAS RELIGIOUS SANCTION:

From the religious point of view, the death penalty is in large measure controversial. It is

asserted by Catholic authors like Ermecke and Protestant writers like Gloege that the murderer has

forfeited his life under the divine order as it is revealed in the scriptures; in consequence, the State, in

carrying the death penalty, is only doing something which in any event has been preordained. The

death penalty, moreover serves the balance out the disturbance to the moral order. 134

An incident on par with this argument is found in Mahabharata. Justifying the retention of

death penalty King Dyumatsena observed that if the offenders were leniently let off, crimes were

bound to multiply and thta they therefore plead that the true ahimsa lay in the execution of unworthy

persons. He further argued that the distinction between virtue and vice must not disappear and the

evil element must be removed from the society.133

A killer must be killed, though not in the same cruel way as he had dealt with the victim. It is

law of nature, arid the Gods too. The Bhagvadgita reckons it as a sacred duty for which the God

himself comes down to earth. A judge hanging the offender and the State executing him are exactly.

in the same position as the surgeon who straightaway removes the offensive limb of his body to save

his life. It is a duty which both owe to the society as Brahmagnani Vishwamitra had emphasised

when Rama was face to face with Tataka.136

(b) CAPITAL PUNISHMENT MARKS THE REPROBATION OF SOCIETY:

Capital punishment marks the society’s detestation and abhorrence. Capital Punishment marks

the detestation and abhorrence of the taking of life and its revulsion against the crime of crimes. It is

supported not because of a desire for vengeance, but rather as the society’s reprobation to the grave

crime of murder.137

(c) RETRIBUTION SATISFIES THE PUBLIC CONSCIENCE:

All retributionists would agree that if anybody deserves death sentence for his crime it is the

44
killer for hire.158 The criminal should die because he has committed a terrible crime, and that only his

death will satisfy the public and keep it from taking the law into its own hands.159

(d) CAPITAL PUNISHMENT IS DETERRENT:

No other punishment deters men so effectually from committing crimes as the punishment of

death.160 True, it cannot be proved by evidence. It is a conclusion that must be drawn from the general

impression one gains from experience, from looking around the world, from seeing how things are

done and how people feel.161 Lord Simon expressed he had no doubt that Capital Punishment pre­

vented more murders to an extent that no other punishment could. It was not a matter of statistics but

of the judgment and commonsense of every individual.162 In a speech in the House of Lords in 1948,

Lord Jowitt said that “to his mind there was only one possible justification of Capital Punishment -

that its potency as a deterrent reduced the number of murders. He belileved it did: he could not prove

it: it must be matter of impression and one’s own personal opinion.163 Lord Brideman based his belief

in the deterrent force of the penalty “more on what I think is my knowledge of human nature than

anything else, and Bishop of Truro thought that on the value of the death penalty as a deterrent.... his

own feelings were a surer guide than any statistics from other countries.... and he was sure that the

death penalty would be a great deterrent to him if he were contemplating murder.164

The death penalty is a deterrent to premeditated murders. The experience of law enforcement

officers show that many offenders do not carry weapons because of their fear of death penalty.

Statistical studies on the effectiveness of the death penalty have been inconclusive, and are in any

case, unimportant. The public views Capial Punishment as both deterrent and denunciation of those

who have committed the most terrible crime.

Retentionists further argue that Capital Punishment is a deterrent. Taking a realistic view, so

long as the society does not become more refined, death sentence has to be retained. The security of

the society and the security of the individual liberty has to be borne in mind. Capital Punishment is a

deterrent because the deterrent force of Capital Punishment affects the conscious thoughts of an

individual. Most people will not commit a crime if they know they may be executed as a result: this

is an outgrowth of man’s instinct for self-preservation.165

Abolitionists suggest life imprisonment as an alternative to Capital Punishment. But, Capital

Punishment is less human than the proposed alternative of life imprisonment. If life sentence is sub­

stituted for death penalty, a man who has committed a crime for which he may be sentenced to life

imprisonment would be as likely to commit other crimes because he would know that he was already

subjected to the maximum penalty. The lifers may feel that they have nothing to loose. 166 Some

retentionists argue that lifers would often be released on parole and commit crimes. Thus, the protec­

tion of the society is at stake. Keeping the murderers, in the prison greatly complicates the work of

prison administration. Life sentence is not an alternative. It is inadequate, because of the practice of

early release.167

(f) CAPITAL PUNISHMENT IS MORE HUI*IANE:

Capital Punishment is more humane and painless than life imprisonment. Making a person to

spend in jail throughout the remaining part of his life is more barbarous. Capital Punishment does not

prolong the agony of the prisoner as imprisonment of life does. However, if Capital Punishment is to

be abolished the life imprisonment should be implemented strictly. Staying behind the bars all alone,

away from the family members till the life ends is more miserable than the death penalty.

(g) STUDIES OF ABOLITIONISTS ARE BIASED:

When Prof. Sellin conducted research in two adjacent states and concluded that both the states

have similar rates of crime, Prof. Haag retorted observing that, “the fact that two states, one with

Capital Punishment and the other without, have similar rates of crimes does not prove that there is no

deterrent effect. Both the studies are based on assumptions. However,this lack of evidence for deter­

rence is not evidence for the lack of deterrence. It means deterrence has not been demonstrated satis­

factorily - not that non-deterrence has.” 165

All human beings fear the loss of their lives, even those, who may be suffering from major

mental disturbances. The instinct of self-preservation is fundamental and threat of death, apprehended

as such must have a powerful deterring influence on the voluntary direction of human activity. The

46
claim that the death penalty itself decreed for the commission of a major crime, will not exercise a

deterring influence on the great majority of potential criminals, contradicts one of the fundamental

facts of human psychology. 169

Threat of the death penalty, plays an important role in forming and maintaining law- abiding

self-image. The fear of death is the ultimate deterrent. Although the fear of long term incarceration is

also a deterrent, there is a margin of increased deterrence present by the threat of death penalty.170

Parkasho v. State of Uttar Pradesh: AIR 1962 All. 151.

(h) MISCARRIAGE OF JUSTICE IS RULED OUT:

The danger of miscarriage of justice is negligible under a well-oriented administration of crimi­

nal law. Mistakes are unlikely, the presence of judge at the trial and impartial review upon appeal

provide adequate protection. Abolitionists show one or two instances. In the light of the existing safe­

guards of appellate review and the possibility of commutation, executing the innocent is unlikely.

However, the modem judicial system has become so foolproof that the chances of an innocent person

being hanged are extremely rare.171 Supreme Court and Government are there to look after such in­

stances. However, one or two cases do not make history.172

(i) PRAIMACY OF SOCIAL DEFENCE:

It is the surest method of eliminating the hopeless elements from the society. It is more danger­

ous to the society if it supports a criminal whose release means a perpetual peril and subsequent con­

tamination and depredation. Garofalo says the Capital Punishment satisfies the sense of justice and

protection and relieves the society of the pernicious effect of those who resolutely and ceaselessly was

upon it. Garafalo goes upto the extent of saying that it is the only.means by which absolute elimination

of irreparable or typical criminals can be eliminated.173 Capital Punishment is not only a threat to the

offenders, but to those persons who are yet to have committed murder. If the offenders are not punished

severely, criminals will think that they can get away with murder. According to Stephen hundreds and

thousands abstain from murder, because they disregard Capital Punishment with horror.

The 35th Law Commision of India also expressed the same fear. A particular potent weapon

47
needed for dealing with the dangerous criminals and individuals not only for protecting the human life

and cultural values but even to safeguard certain social property which is placed under the protection of

law. Society must be protected from the risk of a second offence.

0) ABOLITION OF CAPITAL PUNISHMENT IS A RISK TO THE OFFICERS:

are numerous cases of prison inmates who have killed guards and other inmates, knowing that the worst

punishment they could get would be continued tenancy in the same institution. Opponents of the death

penalty usually resist even life sentence without parole, and the deterrent function of that would be even

less effective than Capital Punishment.174

(k) CAPITAL PUNISHMENT IS MORE ECONOMICAL:

Capital Punishment is lest expensive. Public funds shall be saved. The death penalty is often

defended on the ground that it is less expensive than life imprisonment. The per capital cost of

imrprisonment is about ten thousand dollars per year, and the life term may amount to an average of

twenty years, making a total of two hundred thousand dollars.175

(l) CAPITAL PUNISHMENT PREVENTS MURDERS:

There is no other surest way to prevent crimes of violence and to reduce the number of profes­

sional criminals than implementation of Capital Punishment.

(m) MANY STATES REINTRODUCED CAPITAL PUNISHMENT:

In many countries capital Punishment is re-introduced. For example Brazil had abolished Capital

Punishment in the year 1882 but reintroduced it in 1969. Argentina also had abolished Capital Punish­

ment in 1921 and again in 1972 but reintroduced it in 1976.

(n) PUBLIC OPINION IS IN FAVOUR OF RETENTION:

In United Kingdom public opinion was in favour of abolition of Capital Punishment. In India

majority of the citizens are for Capital Punishment. 176

(o) VICTIMS’ FEELINGS SHOULD BE GIVEN PREFERENCE:

Knowing that the law would not come to their rescue, or does not respect their feelings, victims

may take law into their own hands. Execution avoids popular reactions. Thus, we can avoid lynching.

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 (p) CAPITAL PUNISHMENT SERVES ATONEMENT:

Capital Punishment is the only just punishment, the only one capable of effacing an unpardon­

able crime.

(q) RISK TO THE INNOCENTS:

Abolition means risking innocent lives. We must weigh the execution of the convicted mur­

derer against the loss of his victims and of the possible victims of other potential murderers.

2.18.ARGUMENTS FOR ABOLITION OF CAPITAL PUNISHMENT:

(a) RELIGIOUS, MORAL AND ETHICAL GROUNDS:

The abolitionists point to the fifth commandment in support of their argument. ‘Thou shall not

kill” and to Christ’s appeal in the Sermon on the Mount. “Do good.to those who hate you.” Further,

there is the case in the Bible of the murderer Cain, whose life was spared: and Church itself does not

provide for the death penalty on its own canonical law.177

In Mahabharata also, Satyaketu, Dyumatsena’s son was against Capital Punishment. He pro­

tested against the mass scale executions ordered by his father and argued that destruction of human

life can never be justified on any ground.178

The sentiment and reasoning against Capital Punishment is found in Sukra, according to whom,

this bad practice violates the vedic injunction against taking any life, and should be replaced by

imprisonment for life, if necessary and natural criminal should be transported to an island or fettered

and made to repair public roads.179

Life is a precious gift of God. God, who gives the life, alone has the right to take it back. This

right should not be executed by any agency including judiciary. Taking life of the accused by way of

death sentence deprives him from salvation (Nirvana or Moksha). The soul of the person who died

unnatural death roams above unsatisfied.180

The Father of the Inidan Nation Mahatama Gandhi also reiterated the same long back. “God

alone can take life. Because He alone gives it. Destruction of human life can never be an virtuous

act.”181

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 (b) RIGHT TO LIFE AND THE STATE:

Every individual is entitled to have his rights and each individual has a responsibility to protect

those rights for all others. Life is an universal human right. To put off such a right by the State dimin­

ishes the basic concept of the dignity of the individual, and this dignity is an inalienable right.182 While

using the death penalty a State was not only exercising a right it was not entitled to possess, but also was

engaging in a war against a citizen, whose destruction it believed to be necessary and useful.183 A

similar view was expressed by the French Representative in United Nations Conference on Human

Rights. “The Right to Life was the right of individuals. The State conferred no right, it had a duty to

protect the life of citizens against anything which endanger it.”184. Professor Conrod reminds the duty

of the State in his famous debate with Professor Haag. “Killing demeans the State. Inevitably the State

is a teacher, and when it kills it teaches vengeance and hatred. Murderers are not to be loved nor their

acts be disregarded. But, in allowing them to live, the State reminds all citizens that no man is always

and only a murderer.185 However, the abolitionists strongly opine that it is morally wrong for the State

to take human life. Conrod in his famous debate observes that “I must oppose Capital Punishment

because I cannot accept killing as permissible action for any one, even a civil servant acting as an agent

of the State. Killing demeans the State and a society that insists killing its murderers violates the pre­

cepts that it make it possible for us to live together.”186

(c) CAPITAL PUNISHMENT IS BARBAROUS:

Capital Punishment is a cruelly callous investment by unsure and unkempt society in punitive

dehumanisation and cowardly strategy based on the horrendous superstition that cold-blooded human

sacrifice by professional hangman engaged by the state will propotiate the Goddess of Justice to bless

Mother Earth with crimeless society.187 Execution brutalises those involved in the process. It brutalises

the human intellect.

Capital Punishment is injurious to human values: the act of execution is degrading for the crowd,

the executioner, and the criminal, and its appeal is to basic instincts.188 The gallows is not only a ma­

chine of death but a symbol. It is the symbol of terror, cruelty and irreverence for life.189

50
 (d) CAPITAL PUNISHMENT IS NOT ETHICAL:

“... taking a human life, even with subtle rites and sanctions of law, is retributive barbarity and

violent futility, travesty of dignity and violation of divinity, bankruptcy of deterrent dividends, revo­

cation of correctional possibilities, myopically unscientific in that its focus is on the effect not the

cause and its basis is macaberely devoid even of moral alibi.” 190

(e) CAPITAL PUNISHMENT IS INHUMAN:

Capital Punishment is inhuman and barbaric. Man is a wonderful creation of God. One cannot

destroy it in the name of punishment. The physical pain caused by the action of killing a human being

cannot be qualified. Nor can the psychological suffering caused by foreknowledge of death at the

hands of the State. Whether a death sentence is carried out six minutes after a summary trial, six weeks

after a mass trial or sixteen years after a lengthy legal proceedings, the person executed is subjected to

uniquely cruel, inhuman and degrading treatment and punishment. It denies the value of human life.191

A great reverence to human life is worth more than a thousand executions in prevention of

murder: and is, in fact, the great security of human life. The law of Capital Punishment while pretend­

ing to support the reverence, does in fact tend to destroy it. 192 It is against the spirit of humanity. It

brutalises the human intellect.

There is a phrase in the early book of the Bible that runs something like this. “Ye shall make no

slaves: for ye were slaves in Egypt.” So, we might say “Ye shall be cruel to no man : for ye are men,

and know what cruelty done unto you would mean.”193 “We are not discussing ideas ofjustice, retribu­

tive, retaliatory, or otherwise: we are merely claiming that Capital Punishment is abominably cruel,

having taken for granted, I hope with objector’s agreement, that abominable cruelty, deliberately in­

flicted on anyone, is in all circumstances inadmissible.”

“Thou shall not kill” must penologically overpower “an eye for an eye”. The authentic voice of

the divinity and dignity of humanity, echoed in many national constitutions and now underscored in

the Universal Declaration, has been that of Buddha and Gandhi and not of Manu and Hammurabi.

Beccaria and Bentham, not Bradely and Bosanquet are the torch bearers in this area.194 The extreme

51
penalty’s falsity and ferocity, its humanity and irreversibility, life’s sanctity and society’s safety and

above all, finer criminology transformed by high consciousness, argue for Jesus and aginst Moses.”A

deep reverence to human life is worth more than a thousand executions in the prevention of murder.”

(f) RETRIBUTION IS NO ANSWER:

Strict “Lex Talionis” was not practical even for the early Romans.195 Execution is no more than

vengeance, and vengeance is not the aim of the justice. Justice no longer lies in retribution. It demands

the criminals induction into a new social environment devoid of those circumstances that incited the

criminal in him.196 However, the most conspicuous failure of retribution by death is seen in Capital

murders committed by hired killers and their employers, who are rarely brought to the bar of justice.

Retribution can hardly protect the society. The Legislative vengeance has adversely failed to cope with

the present day biological and social problem.197 However, we may inflict harm as a means of denounc­

ing violation of the law, but in doing so we have to set careful limitations on the harm we may inflict.

(g) CAPITAL PUNISHMENT IS NOT DETERRENT:

British and Canadian White papers as well as the works undertaken by the European Council, the

committee for the Prevention of Crime created by the United Nations and the European Parliament

studies came to the conclusion,” violent crime follows a curve that is a function of social and economic

conditions and the evolution of the moral values of society at a given moment. It is unaffected by the

existence or absence of Capital Punishment. In otherwords the death penalty does not reduce crime, nor

does its abolition increases it.”

A criminal does not expect to be caught, if caught to be convicted, if convicted to be the recipient

of the maximum sentence, it is also true that criminals will not be deterred by the most severe sentence

that may be imposed on them. Studies do not prove any deterrent effect.195

Available information confirms that removal of Capital Punishment has never been followed by a

notable rise in the incidence of the crime. In fact, theft, robbery, forgery, counterfeiting currency, infan­

ticide which were punished with death in 19th Century decreased after partial abolition. In Greece,

banditry decreased after it ceased to be punishable with death. The same thing with Canada in cases of

52
rape. In England, there has been since 1957 no increase in the crimes which ceased to be capital mur­

ders under the Homicide Act of that year. Yugoslavia shares this experience. Arizona, Colorado, Kan­

sas of United States and in Queensland of Australia where Capital Punishment was reintroduced after

a period of abolition crime did not decrease. In Argentina Capital Punishment was abolished in 1922.

Yet, despite the constant increase in population, the number of murders of the kind previously punish­

able with death declined steadily in the decade which followed.199

The authorities on death penalty like Sellin, Isenberg and do not accept the deterrent theory.

“There is no evidence that the abolition of death penalty generally cause an increase in criminal homi­

cides or that its re-introduction is followed by a decline.”200 “....’’the presence of death penalty - in law

as in practice does not influence homicide death rates....the death penalty as we use it exercises no

influence on the extent of fluctuating rate of capital crime. It has failed as a deterrent.”201

(h) CAPITAL PUNISHMENT VIS-A-VIS THE FAMILY OF THE VICTIM:

Killing one offender means killing not only a particular offender, but killing his wife, children

and parents also. The loss suffered by the victim’s family is a legitimate concern of the State, but it

should be dealt with through economic support rather than the perpetrating vengeance. Because, the

victim’s grief does not command that society should put the offender to death. The march of justice

over the centuries has been to overcome private vengeance. How can we do this without first rejecting

the law of an eye for an eye.202

(i) CAPITAL PUNISHMENT IS DEGRADING AND FUTILE:

Punishment for death is degrading after all. If the current standards of review over imposition of

death penalty are insufficient, the death penalty should be banned.

It is futile to attempt to reconcile in one’s mind the abstract justification of death penalty juris­

prudence with the pain and suffering of a murder victim. Law cheats morality.

Murder and Capital Punishment are not opposites that cancel one another, but similars that breed

their kind, when the State itself kills, the mandate “thou shall not kill” looses the force of the absolute.

A significant percentage of death-row inmates request the death penalty rather than exhaust their

appeals, thereby indicating the desirability of death over imprisonment. The inmates who choose death

53
may simply desire to put an end to the waiting involved. In otherwords, the inmates might prefer the

certainty of immediate death rathre than continue to experience anguish through the appeals process

while waiting on death row. Most murderers perceive life imprisonment as more severe than the death

penalty. 203

(j) CAPITAL PUNISHMENT AND THE LIKELIHOOD OF UNCERTAINTY:

In a public opinion survey, 60% of death penalty proponents stated that as jurors they would

require “much more” or some what more” evidence in order to convict if the penalty would be death.

Of those opposed to the death penalty, 40% stated that they would never vote to convict if they knew

that the penalty would be death. Consequently, the use of death penalty might result in an increase in

the acquittal of murderers and therefore, lead to more lives lost at the hands of those acquitted murder­

ers who kill again.

(k) LIFE IMPRISONMENT IS A GOOD ALTERNATIVE:

It is far from clear that life imprisonment may, in fact, perform the punishment better than the

death penalty. Prisoners convicted for murder are no more likely to commit violent acts while impris­

oned, than other types of prisoners.

(l) IRREVERSIBLE ERROR MAY RESULT IN CAPITAL PUNISHMENT:

Although it is impossible to determine the exact percentage of defendants executed wrongfully,

one study indicates that a significant number exists.204 Certainly our criminal justice system is filled

wih errors. Jurors can err in their findings of fact. Judged can err in their legal determinations and in the

exercise of discretion. Witnesses can err in their recall. Lawyers can err in their strategy. These imper­

fections can alone, without a system of perfect review, serve as the basis of a strong argument against

the use of the death penalty.20-'

Joseph Regan’s reprieve arrived two minutes too late; Rush Griffin was hanged, but nonetheless,

papers requiring a stay of his execution were delivered to the courts three days later; and an order by

the governor requiring the stay of the execution of Burton Abbot reached the warden just after the

pellets of the gas chamber were dropped. Fortunately for Charles Stielow and William Wellman, their

54
reprieves arrived in time, although they were both already strapped into the electric chair.206 A wrong­

fully convicted offender sentenced to life imprisonment can hope, each day of his or her natural life, for

justice to be done. Like wise, no wrongful sentence in terms of years matches the injustice of a wrong­

ful sentence of death.207 The risk of judicial error should suffice to ban the death penalty.208

(m) CAPITAL PUNISHMENT AND BIASED JURY:

Inability of jurors to deliver unbiased results is a problem detected by a leading empirical study

completed over two decades ago. More recent evidence suggests that at times juries still convict or

sentence offenders based on race or social status rather than on the proof of harm and culpability.

Biased verdicts do result. In the infamous Chessman’s case among twelve jury members eleven were

women, whose verdict naturally went against him , because he was charged with the offence of at­

tempted rape. The conviction depends upon the choice of the judges, the respective abilities of the

lawyers and prosecutors. Isn’t it true that for identical crimes, some criminals may be punished by death

and others escape scot free? When the life of a man is at stake, this judicial lottery is morally intoler­

able.209

Law gives to the judge the sovereign power to decide the fate of another human. Not only must

they decide the guilt or innocence with all the risks of the error inherent in such a decision, but they can

also decide whether this human is to live or to die. Such absolute power is not acceptable in a democ­

racy.210

(n) POWER OF COMMUTATION IN CAPITAL PUNISHMENT CASES:

The same is true of the power to commute. Such a power implies that one person may, according

to his whim, halt the execution or allow it to proceed, without answering to anyone. This right of life or

death granted to one man is the survival of another age of another political system, a throwback to the

period when the right to pardon had its basis in the sacred aura of the monarch. In a democracy, no man,

no power, can hold the right of life or death over another person.211

(o) REVOCABHJTY IS IMPOSSIBLE:

“.... miscarriage of justice through judicial error, minimal may be, cannot be ruled out.”212 “ ...if

Capital Punishment eliminates the guilty it also eliminates the chance of correcting judicial errors

55
imposed on the innocent.”214 Former Home Secretary, Mr. Chuter Ede, who in 1950 had refused to

reprieve Timothy John Evans frankly admitted that “Evan’s Case shows ... that a mistatke was pos­

sible, and that, in the form in which the verdict was actually given on a particular case, a mistake was

made. I hope no future Home Secretary will ever have to feel that although he did his best he sent a man

to the gallows who was not guilty as charged”. As long as the death penalty remains such irremediable

errors ofjustice can never be altogether excluded.

(p) DEATH PENALTY IS A LAZY ANSWER:

To fancy comfortably that Capital sentence is a sovereign remedy for the criminal syndrome

afflicting the current complex society is a sombre confusion about socical defence, a guilty ignorance

about executioner’s impotence and jural farewell to advancing human rights and civilized meanings.214

This extreme penalty, an amalgamation of collective vengeance, and deterrence, has scientifi­

cally lost its penological purpose particularly in the context of traditional crimes and is functionally

non-utilitarian. At global level it has claimed numerous outstanding and socially significant lives and

it still continues particularly in the third world countries where the governments are dictatorially hys­

teric and letharigic. To be precise, if murder by an individual or a group of individuals is undesirable,

how could it be justified if committed by the state or body politic.

In any case the test by which rightfulness of Capital Punishment must be judged is not only its

immediate success or failure in deterring potential murders, but its long-term influence on the con­

science of the community.215

(q) CAPITAL PUNISHMENT DOES NOT SERVE THE PURPOSE OF SOCIAL DEFENCE:

Death Penalty, as violation of fundamental human rights, would be wrong even if could be shown

that it uniquely met a social need. Anyway, it has never been shown to have any special power to meet

any genuine social need.216 However, there is no indication that people who have committed capital

crimes are more likely to commit other crimes. Many who commit repeated capital crimes are ad­

judged legally insane and are not executed even in Capital Punishment jurisdiction. Surveys reveal that

murderers are the best behaved persons.

56
 (r) CAPITAL PUNISHMENT IS DISCRIMINATORY:

Most of the condemned persons are poor men, prefunctorily defended in court by appointed

counsel. Many were Blacks, Chicanos or Indians. Death Penalty is imposed more frequently on the

poor, the ignorant and the minorities.Even though women commit about one of every seven murders

(in the United States) of the 3,298 people executed for murder from 1930 through 1962, only 30 were

women. In the same period 446 were executed for rape. Of these 45 were Whites, 399 Negroes and 2

American Indians. If Capital Punishment is not uniformally applied it should be abolished. It is un­

likely that any future application of death penalty would be non-discriminatory. It is clear that it has

been highly discriminatory in the past.217 “Do remember that the blow of Capital punishment often falls

on the socially, mentally and economically backward, on the brave revolutionaries, and patriotic dis­

senters, on the derelicts, and desperates, on the lowliest and lost and on those who have turned delin­

quent because society, by its continued-maltreatment, cultural perversion and environmental pollution

has made them so. The villain of the peace, in the large view, is psychopathic society itself, the victims

are so called criminals and the other sufferers of crime.238 It is disproportionately imposed upon the

poor, the Negro and the unpopular. The same view was expressed by Justice Douglas in the case of

Furman.” It is the poor, the sick, the ignorant, the powerless and the hated who are executed.” Krishna

Iyer adds to this list the harijan, the woman, the worker or the illeterate. Over the periods the Capital

Punishment is imposed on the poor, not on the rich, on pariah, not on the Brahmin, on the black not on

white, on the underdog, not on the top dog, the woman not the man, the dissenter not on the conformist.

It is class biased and colour biased. Criminal barks at both but bites only the poor. That is why white

collar criminals, adulterers, smugglers are not imposed capital Punishment.”219 In country after country

it is used disproportionately against the poor or against the racial or ethnic minorities.220

It destruets only the sinner not the sin.

(s) CAPITAL PUNISHMENT RULES OUT THE POSSIBILITY OF REFORMATION:

Every saint has a past and every sinner a future. Never write off the man wearing the criminal

attire but remove the dangerous degeneracy in him, restore retarded human potential by holistic healing

of his fevered, fatigued or frustrated inside and by repairing the repressive, though hidden, injustice of

57
the social order which is vicariously guilty of the criminal behaviour of many innocent convicts. Law

must raise with life and jurisprudence respond to humanism.221

Human nature is complex and acts not by fear alone but by love, loyalty, greed, lust and many

other factors. However, individuals do not think death penalty before they act. Social scientists and

public policy makers must search for ways that will reduce the inclination of men and women to

commit crimes.222 However, efficient police officer does more work than an executoner. Criminolo­

gists and Penologists now teach that it is less important to strike blindly than to reform thoughtfully.223

(t) MANY STATES ABOLISHED CAPITAL PUNISHMENT:

In a large number of countries in the world where the murder rate is higher than in India, the

death penalty has been abolished. In most Latin American Countries, in Argentina, Brazil, Colombia,

Costa Rica, Ecuador, Mexico, Panama, Peru and Uruguay, Venezula, in European countries, in Aus­

tralia, Belgium, Denmark, Germany, Italy, Netherlands, Norway, Sweden and Switzerland, in Ice­

land, in Israel, in many Australian States and in many of the States in the United States of America,

death sentence has been abolished.

SUMMARY:

Sanction is an essential ingredient of law. Punishment is a social custom and institutions are

established to award punishment, after following criminal justice process. Governments prohibit tak­

ing life, liberty or property of others and specifies the punishments, threaten those who break the law.

Criminologists hold the view that certainty of punishment is more important than the severity. How­

ever, punishment shall prevent crime, it shall sustain the morale of confirmists and it shall reform the

offender at the same time.

Of the theories of punishment namely, retributive, deterrent, preventive and reformative, the

first two theories, being the philosophies of classical and neo-classical schools advocate the retention

of Capital Punishment. While the last viz., reformative theory, the product .of positive school is against

the death penalty. Retributionists argue that death will satisfy the public and keep them away from

taking the law into their hands. Deterrent theory suggests that punishment is designed not to take

58
revenge but to terrorise the future offenders, thus explaining the necessity of carrying out the execution

of the offender. Preventive theory which is known as incapacitative theory also, is a two edged weapon

used for arguments of retentionists as well as abolitionists. Reformative theory which used mass meth­

ods to reform the criminals in the last century resorted to individual treatment, in the present century.

This theory advocates that punishing the offender is as good or as bad as punishing a cancer patient. It

serves no good.

The retentionists interpret the retributive and deterrent theories in such a way to suit their argu­

ments. They advocate the retention of Capital Punishment on moral, ethical and religious grounds.

Abolitionists argue on the otherhand in favour of abolition on the same grounds as that of retentionists.

NOTES AND REFERENCES

1. Julican P. Alexander: “The Philosophy of Punishment”: The Journal of Criminal Law,

Criminology and Police Science: v.13: 235 (1922-23).

2. Hart, H.L.A: Punishment and Responsibility: 23 (1968).

3. Earnest Van Den Haag and John P. Conrod: The Death Penalty: A Debate: 21 (1983).

4. Ibid at 22.

5. Ibid at 53.

6. Jeremy Bentham: Principles of Penal Laws: 200 (1843).

7. Jeffrey: “Criminal Behaviour and Learning Theoiy”: The Journal of Criminal Law, Criminology

and Police Science: 299 (1965).

8. George Barnet Smith: The Life and Speeches ofRight Honourable John Bright: M.P.: v.l 19

(1881).

9. Supra note 7.

10. Supra note 3 at 21.

11. William Temple: The Ethics of Penal Action: 28-30 (1934).

12. . Walter Moberley: The Ethics of Punishment: 287 (1968).

13. Henry Elmer Bamess and Negley K. Teeters: New Horizons in Criminology: 285 (1966).

59
14. Donald R.Taft & Ralph W. England : Criminology: 21 (1956).

15. Jackson Toby: “Is Punishment Necessary?”: The Journal of Criminal Law, Criminology and

Police Science: v. 55: 533 (1964).

16. James F. Stephen: A History of the Criminal Law of England: 81-82 (1883).

17. Supra note 13 at 286-287.

T8. Mahajan, V.D: Jurisprudence and Legal Theory: 129 (1987).

19. Parson: The Structure of Social Action: 402-403 (1949).

20. Durkheim: The Division of Labour in Society: 106 (1947).

21. Supra note 6 at 145-146.

22. Paranjape, N.V: Criminology and Penology: 115 (1983).

23. Supra note 14 at 54.

24. Edwin Surtherland and Donald R. Cressey: Criminology: 335 (1974).

25. Supra note 18 at 145.

26. Heinrich Oppenheimer: The Rationale of Punishment: 29 (1913).

27. John Rawis: Two Concepts of Rules: Philosophical Review: 7 (1955).

28. Supra note 26 at 38.

29. Immanuel Kant: The Metaphysical Elements of Justice: (Translated by John Lodd) 102: (1965)

30. Supra note 18 at 145.

31. Timshaff: “The Retributive Structure of the Punishment”: The Journal of Criminal Law,

Criminology and Police Science: v!28: 396: (1937-38).

32. Supra note 16.

33. Ibid at 81.

34. Supra note 12 at 283.

35. Jack P. Gibbs: “The Death Penalty: Retribution and Penal Policy”: The Journal of Criminal

Law, Criminology and Police Science: v.69: 298: (1978).

36. Ibid at 297.

60
37. Robert G. Caldwell: Criminology: 415 (1956).

38. Subhash C. Gupta: Capital Punishment In India: 43 (1986).

39. Supra note 16 at 86.

40. Supra note 12 at 279.

41. Report of the Royal Commission on Capital Punishment: 1949- 1953: 18: para 53: (London:

Her Majesty’s Stationary Office, September, 1953) Denning, however, candidly admitted: “After the

debates in Parliament I altered my view, I asked the rhetorical question: Is it alright for us, as a society,

to do a thing - hang a man - which none of us individually would be prepared to do or even to witness?

The answer is No, not in a civilised society.”: Denning: Landmarks in the Law: 27 (1993).

42. Charles L.Black: Capital Punishment: The Inevitability of Caprice and Mistake:23-24 (1967).

43. Supra note 12 at 284.

44. Ibid.

45. Supra note 3 at 291.

46. Ibid at 33.

47. Jack P. Gibbs: Retribution and Penal Policy: The Journal of Criminal Law, Criminolgy and

Police Science: v. 69: 293 (1978).

48. Ibid.

49. Gregg v. Georgia: 428 U.S. 153 (1978).

50. Supra note 47 at 291.

51. William Temple: The Ethics of Penal Action: 31-32 (1934).

52. Quoted by Bhagwati, J. in Baehhan Singh v. State of Punjab: AIR 1982 S.C. 1325.

53. Ibid .

54. Sen, P.K: Criminology Old and New: 27 (1943).

55. Edwin H. Sutherland and Donald R. Cressey: Criminology: 336 (1974).

56. Supra note 18 at 136.

57. Ahmad Siddique: Criminology: Problems and Perspectives:69-70 (1983).

61
58. Supra note 55 at 339.

59. Ibid at 336.

60. Paul B. Horton and Gerald R. Leslie: The Society and Social Problem: 167 (1970).

61. Supra note 12 at 276.

62. Barry Schwartz: “The Effect in Philadelphia of Pennsylvania’s increased penalties for Rape

and attempted Rape”: Journal of .Criminal Law, Criminology and Police Science: v. 59: 509-

515(1968).

63. Supra note 55 at 340.

64. Ibid.

65. Robert H. Gault: Criminology: 308-309 (1932).

66. Thorsten Seilin: The Penalty of Death: 78 (1980).

67. Ibid at 85.

68. Gerald Gardiner: Capital Punishment: As a Deterrent and Alternative: 27 (1957).

69. Gerstein: “A Prosecutor Looks at Capital Punishment”: The Journal of Criminal Law,

Criminology and Police Science; v. 51 : 252 (1960).

70. James F.Stephen: Capital Punishment: Fraser’s Magazine: v.69: 753 (June, 1864).

71. Earnest Gowers: A Life for Life: 63-64 (1956).

72. Supra note 3 at 68.

73. Supra note 71 at 56.

74. Ibid at 62.

75. Ibid at 67.

76. Ibid at 51-52.

77. Thorsten Seilin: The Penalty of Death: 79 (1980).

78. Supra note 3 at 141.

79. Ibid at 143.

80. Ibid at 360.'

62
81. Deryck Beyleveld: (Shiffield): “Ehrlich’s Analysis of Deterrence”: The British Journal of

Criminology: v. 22 101-122 (April 1982).

82. Royal Commission on Capital Punishment, 1949-1953 Report: (London: Her Majesty’s

Stationary Office, September, 1953)

83. Ibid at para 59: Similar view was expressed by Marshall, J. in Furman v. Georgia: 408 U.S. 238

(1972).

84. Supra note 77 at 83.

85. Supra note 72 at 73.

86; Gerald Gardiner: Capital Punishment: As a Deterrent and Alternative: 27 (1957).

87. Hugo Adam Bedau: “Deterrence and the Death Penalty”: The Journal of Criminal Law,

Criminology and Police Science: v. 60: 544 (1969).

88. Chambliss: “Types of Deviance .and the Effectiveness of Legal Sanctions”: Wisoncisn Law

Review: 703 : (1968).

89. Barber and Wilson; Research on Queenland and other Australian States; Fred. J. Cook: Justice

Chinnappa Reddy in Bishnu Deo v. State: AIR 1979 S.C. 964 at 968: The Ancel Report: N. Marris:

American Professor of Criminal Law and Criminology in his report at the behest of General Assembly

are among those to name a few.

90. Deryck Beyland: “Echrlich’s Analysis of Deterrence”: The British Journal of Criminology:

v.22:119: (April 1982): See also Furman v. Georgia: 408 U.S.238 (1972) as per Marshal, J. and in

Gregg v. Georgia: 428 U.S. 153 (1976) as per Steawart, J.

91. Ibid at 121.

92. Moin Qazi: “Death Penalty: No Deterrent Against the Crime”: Lex et Juris: 16-17 (August, 1989).

93. Stephen, J.Knorr: “Deterrence and the Death Penalty: A Temporal Cross-Sectional Approach”:

The Journal of Criminal Law, Criminogy: v.70: 253 (1979).

94. Supra note 3 at 292.

95. Ibid at 84.

63
96. Ibid at 72.

97. Bail: “The Deterrence concept in Criminology and Law”: Journal of Criminal Law, Criminology

and Police Science: v. 40: 347 & 351 (1955).

98. The State As Executioner: The Death Penalty in India: PUCL Bulletin: v.4: 6: (May, 1984).

99. Bernard C. Glueck: “Changing Concept in Forensic Psychiatry”: The Journal of Criminal Law,

Criminolgy and Police Science: v. 45: 123 (1954).

100. Gerald Gardiner: Capital Punishment: As a Deterrent and Alternative: 49 (1957).

101. Agarwal, M.L: Capital Punishment: Abolition Move in India: 69:AIR 1958; See also Royal

Commission Report on Capital Punishment, 1949-53.

102. Supra 98 at 6.

103. Harry Elmer Barnes and Negley K.Teeters: The New Horizons in Criminology: 318 (1966).

104. Supra note 100 at 46.

105. Supra note 94 at 84.

106. Supra note 103 at 318.

107. Earnest Van Den Haag: “On Deterrence and Death Penalty:” The Journal of Criminal Law,

Criminology and Police Science: 141,146& 147 (1969).

108. Supra note 98 at 6.

109. Stephen, J. Knorr: ‘Deterrence and the Death Penalty: A Temporal Cross-Sectional Approach”:

The Journal of Criminal Law, Criminolgy and Police Science: v. 70: 235-254 (1979).

110. Mahajan,V.D: Jurisprudence and Legal Theory: 138 (1987).

111. Chaturvedi & Chaturvedi: Theory and Law of Capital Punishment: 16 (1989).

112. Supra note 103 at 603.

113. Rajendra Prasad v. State of Uttar Pradesh: AIR 1979 S.C. 916.

114. Supra note 72 at 85.

115. Supra note 24 at 346.

116. Supra note 3 at 34.

64
117. Bhattacharya, S.K: Issues on Abolition of Capital Punishment: Employment News Weekly: 21-

27, December, 1991.

118. Supra note 116 at 10.

119. Herbert Harley: “Segregation v. Hanging”: The Journal of Criminal Law, Criminolgy and Police

Science: v.ll. 527(1920-21).

120. Supra note 111 at 116.

121. Edwin H. Sutherland and Donald R. Cressey: Criminology: 665-667 (1978).

122. Supra note 18 at 143.

123. Paranjape,N.V: Criminolgoy: 117 (1983).

124. Mahajan, V.D: Jurisprudence and Legal Theory: 139 (1987).

125. Mool Singh: Rethinking in terms of Abolition of Capital Punishment: 128: 1989 Cri.L.J.

126. Subhash C. Gupta: Capital Punishment in India:38: (1980).

127. Supra note 3 at 9.

128. Ibid.

129. Supra note 126 at 21.

130. The Hindu: 4: February 3, 1996.

131. William O.Hochkammer, Jr: “The Capital Punishment Controvery”: The Journal of Criminal

Law, Criminology and Police Science: v.60: 369 (1969).

132. Supra note 103 at 319.

133. See Hiranandani: “The Sentence of Death”: The Illustrated Weekly of India: Aug, 29: 1976.

134. Krishna Iyer, J: ‘Death Sentence on Death Sentence”: The Indian Advocate: Journal of the Bar

Association of India: v. XVffiH: 28: (Jan-June,1978).

135. Marines T.D Marsh,O.P, Halloran, J.D and Connolly, K.J: Capital Punishment: A Case for

Abolition: 167 (1963).

136. Supra note 127 at 12.

137. Supra note 133 at 32.

65
138. James Avery Joyce: Capital Punishment: A Worldwide View: 51-52 (1961).

139. Bhagwati,J: In Bachhan Singh v. State of Punjab: AIR 1982 S.C. 1325 at 1357-58.

140. Supra note 126 at 32.

141. Supra note 126 at 40.

142. Balbir Singh v. State of Punjab: AIR 1979 S.C. 1384 at 1386.

143. Supra note 126 at 43.

144. Gollanz: Capital Punishment: Heart of the Matter: 22 (1955).

145. Ibid.

146. Supra note 135 at 13.

147. Supra note 3 at 19.

148. Immanuel Kant: The Metaphysical Elements of Justice: (Translation: John Lodd: 99-107 (1965).

149. Alf Ross: On Guilt, Responsibility and Punishment: 44 (1975).

150. Supra note 147 at 19.

151. Capital Punishment: U.N. Publication: 62: (1962).

152. James Carey, T: Introduction to Criminology: 272: (1978).

153. Marc Ancel: The Problem of the Death Penalty: (Ed.Sellin, T: Capital Punishment) 5 (1967).

154. Jurgen Meyer: “West Germany : Country without Capital Punishment:” (Ed. Agarwal R.S and

Sarvesh Kumar: Crimes and Punishment in New Perspective) 47 (1986).

.155. Mahabharata: Shanti Parva: Chapter: CCLXVII: Verses 4-13.

156. Rajgopal: Death Penalty and Law: 79 : Cri.L.J. 1982.

157. Law Commission Of India: Thirty-Fifth Report: Para 55 (1967).

158. Sellin, T: The Penalty of Death 73 (1980).

159. Robert, G. Cladwell: Criminology: 415 (1956).

160. Gower Earnest: A Life for Life: 56 (1956).

161. Ibid at 62.

162. Ibid at 54.

66
163. Supra note 160 at 54.

164. Ibid at 51-52.

165. Gerstein: “A Prosecutor Looks at Capital Punishment”: The Journal of Criminal Law, Criminology

and Police Science: v.51 (1960).

166. William O. Hochkammer, Jr: “The Capital Punishment Contraoversy”: The Journal of Criminal

Law, Criminology and Police Science: v. 60: 360 (1969).

167. Law Commission of India: Thirty- Fifth Report: (1967).

168. Earnest Van Den Haag: “On Deterrence and Death Penalty”: The Journal of Criminal Law,

Criminology and Police Science: v. 60: 146 (1969).

169. Commonwealth of Masachusettes: House Report No. 2575 (Boston) Dec. 20: 1958: Source 35th

Law Commission Report: para 326. 93311

Moin Qazi: “Death Penalty: No Deterrent Against the Crime”: Lex Et Juris: 16-17: (Aug, 1989).

171. Moin Qazi: ‘Death Penalty: No Deterrent Against the Crime”: Lex Et Juris: 16-17: (Aug, 1989).

172. Law Commission of India: Thirty- Fifth Report.

173. Lehar Singh Mehata: “Is Capital Punishment Justified?”: 103-105: AIR 1949.

174. Jurgen Meyer: “West Germany: Country Without Capital Punishment”: (Ed. Agarwal and Sarvesh

Kumar: Crimes and Punishment in New Perspective) 47 (1986).

175. Edwin Sutherland and Donald R. Cressey: Criminology: 346-347( 1978).

176. Supra note 172.

177. Supra note 174.

178. Mahabharata, Shanti Parva: Chpater CCLXVH, Verses 4-13.

179. Subhash C. Gupta: Capital Punishment in India: 21 (1986).

180. Mulchand Singh: ‘Death Sentence - Rethinking in terms of its Abolition: 126: 1989 Cri.L.J.

181. Krishna Iyer,J: ‘Death Sentence on Death Sentence”: The Indian Advocate: Journal of the Bar

Association of India: V.XVBI: 34 (Jan-June,1978) Sc

67
Heart of the Matter: 9 (1955).

182. Lee H. Bowker: Corrections: The Science and Art: 98 (1982).

183. Elio Monaches: Caesare Beccaria: Pioneers in Criminology: 40 (1960).

184. James Avery Joyce: Capital Punishment: A Worldwide view: 203 (1961).

185. Earnest Van Den Haag and John P. Conrod: The Death Penalty: A Debate: 10 (1983).

186. Ibid at 8.

187. Supra note 181 at 27.

188. Ibid at 32.

189. Arthur Koestler: Reflections on Hanging: (1956).

190. Supra note 181.

191. When The State Kills... Human Rights v. Death Penalty: Amnesty International Publications:

1-2(1989).

192. Gollanz: Capital Punishment: The Heart of the Matter: 6 (1955).

193. Supra note 181 at 14.

194. Ibid at 27.

195. George Wilhelm Friedrich Hegel: The Philosophy of Right: (Translated by T.M. Knox) 72

(1942).

196. Moin Qazi: Death Penalty: No Deterrent against the Crime: Lex Et Juris: 16-17: (Aug, 1989).

197. Lehar Singh Mehta: Is Capital Punishment Justified? 103-105: AIR 1949: See also Nishtha

Jaiswal: Role of the Supreme Court with Regard to the Right to Life and Personal Liberty: 166

(1979).

198. Supra note 181 at 27.

199. Capital Punishment: United Nations Publications: 54 (1962).

200. Sellin,T: Experiments with Abolition of Capital Punishment: 124 (1967).

201. Sellin, T: Homicides in Retentionist and Abolitionist: States in Capital Punishment: 136 (1967).

202. Supra note 197.

68
203. Deserts and Death: Limits on Maximum Punishment: B.S. Pollack: Rutges Law Review: v.44

(Summer, 1992).

204. Hugo Adam Bedau and Michael L.Radelet: Miscarriage of Justice in Potentially Capital Cases:

Stanford Law Review: v. 40: 21 (1987).

205. Supra note 203 at 1006-1007.

206. Ibid at 1007.

207. Ibid at 1008.

208. Moin Qazi: Death Penalty: No Deterrent Against Crime: Lex Et Juris: 16-17: (August, 1989).

.209. Ibid.

210. Ibid.

211. Ibid.

212. Krishna Iyer, V.R ‘Death Sentence on Death Sentence”: The Indian Advocate; Journal of the

Bar Association of India: v. XVIII: 34 (Jan-June,1978).

213. Ibid at 32.

214. Ibid.

215. Walter Moberley: The Ethics of Punishment: (1968).

216. Supra note 191 at 5.

217. Lee H. Bowker: Corrections: The Science and Art: 97 (1982).

218. Supra note 213 at 29.

219. Ibid.

220. Sellin,T: A Useful Book on Capital Punishment: 479 (1967): See also Supra Note 191 at 1.

221. Supra note 212 at 28.

222. Earnest Van Den Haag and John P. Conrod: The Death Penalty: A Debate: 125 (1983).

223. Marc Ancel: The Problem of Death Penalty: (Ed. Sellin, T: The Problem of Death Penalty): 17

(1967).

69