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Report No. 35

Capital Punishment

Volume I *

Chapter I


Topic Number 1

Reference to the Law Commission

1. Reference to the Law Commission.-

The subject of capital punishment has come to be considered by the Law Commission in the following circumstances-

Shri Raghunath Singh, Member, Lok Sabha, had moved a resolution in the Lok Sabha for the abolition of capital punishment1. In the course of the debate on the resolution, suggestions were made that a commission or committee should be appointed to go into the question2. Shri Harish Chandra Mathur moved an amendment to the effect that the question of abolition of capital punishment be referred to the Law Commissions3.

The Minister of State in the Ministry of Home Affairs (the late Shri B. N. Datar) gave an assurance that a copy of the discussions that had taken place in the House would be forwarded to the Law Commission "that is now seized of the question of examining the Code of Criminal Procedure and the Indian Penal Code with a view to consider as to whether changes are necessary therein4". He was confident that this assurance would satisfy those honourable members, who either desired that there ought to be a commission or a committee or who desired specifically that the question should be referred to the Law Commission. In view of this assurance, the resolution and the amendments were withdrawn by leave5.

*The words "Volume I" do not find mention at this place in the Report published by the Law Commission.

1. Lok Sabha Debates, 1962, Cols. 307 and 308 (21st April, 1962).

2. Lok Sabha Debates, 1962, Cols. 321 and 322 (21st April, 1962).

3. Lok Sabha Debates, 1962, Cols. 323, 334 and 335 (21st April, 1%2).

4. Lok Sabha Debates, 1962, Col. 354, (21st April, 1962).

5. Lok Sabha Debates, 1962, Cols. 364 and 365 (21st April, 1962).

2. Accordingly, a copy of the debates in the Lok Sabha was forwarded to the Law Commission. That is the genesis of this Report1.

1. There had been discussions on the subject, earlier also. See under "History of abolition move in India", paras. 12-18, infra.

Topic Number 2

Why subject taken up separately

3. Why the subject taken up separately.-

The Law Commission considered it desirable to take up this subject separately from the revision of the general criminal law, in view of the importance of the subject, the voluminous nature of the materials to be considered, and the large number of questions of detail to be examined1. It may be noted, that the matter has, in recent years, been repeatedly debated in Parliament in some form or other, and its consideration, therefore, seemed to be somewhat urgent as compared with other topics arising under the Code of Criminal Procedure, etc. In other countries also, this subject has been treated as one for separate and full-fledged study.

1. See the questionnaire issued by the Commission.

Topic Number 3

Interim Note

4. Interim Note, as to categories of murders.-

While the subject was under consideration, certain proposals for the division of murder and other capital offences into categories were forwarded to the Law Commission for consideration. It is not necessary, to discuss the details of the scheme envisaged in those proposals. The opinion of the Law Commission was urgently sought on those proposals, and the Law Commission sent to the Ministry an Interim Note1 on those proposals.

1. The note was sent, under the signature of the Secretary to the Law Commission, to the Ministry of Home Affairs, on 27th December, 1962. The note represented the views of all the then members of the Commission, except Niren De, who could not attend the Commission's meeting of the 17th December, 1962, at which the note was discussed.

5. On the materials available at that time, and as then advised, the Commission could not agree with those proposals1. The main considerations that weighed with the Commission were,

(i) the absence of a general principle at the root of the scheme,

(ii) the need for caution before following any law that might have been enacted elsewhere,

(iii) the difficulty of the categorisation of murders,

(iv) the presence of many anomalous features in the actual scheme in its details,

(v) the absence of any strong necessity for disturbing the existing law in India, under which the court already possesses the discretion to award the sentence of death or the lesser punishment of imprisonment for life, and

(vi) doubts as to whether the proposals revealed a reasonable classification, which could stand the test of Article 14 of the Constitution.

The Commission, therefore, after emphasising that it would have preferred to offer its opinion on the proposals after collecting material on the large question of abolition, expressed itself against the acceptance of the scheme of categorisation.

1. Para. 4, supra.

Topic Number 4

Procedure followed

6. Procedure followed.-

The procedure which the Commission followed in its deliberations on this subject may be set out briefly.

On receipt of the copy of the debates in the Lok Sabha1 the necessary materials for a preliminary study were collected. It was decided that a questionnaire should be issued. The questionnaire 2 was settled at the Commission's meeting, and copies sent to State Governments, High Courts, the Supreme Court Bar Association, High Court Bar Associations, and other interested persons and bodies.

Copies were also sent to Members of Parliament and of State Legislatures, every Judge of the High Court (individually), District Bar Associations, Zila Parishads (as also to other persons and bodies, who wished to express their views on the subject). A great mass of material was received, and the tabulation of the replies, prepared in the Commission, extended to several volumes.

1. Para. 2, supra.

2. The questionnaire is given separately.

7. Further material for study had been collected in the meantime. A draft Report was also prepared. The subject was discussed at length in the meetings of the Commission. The present Report is based on the conclusions which the Commission has arrived at, after a consideration of the various issues, in the light of the materials collected.

Topic Number 5

Materials studied

8. Materials studied.-

The Commission has, in its study of the subject, received very valuable assistance from the reports of Commissions or Committees appointed in other countries to consider this subject. Special mention must be made of the comprehensive and thorough report of Royal Commission on Capital Punishment1. In addition, the report of the Joint Committee of the Canadian Senate and House of Representatives2 on capital punishment, and the Report of the Ceylon Commission on the subject3 brought out several aspects which might otherwise have been missed.

The Commission had also before it the debates that took place in our Parliament on the subject at various times, in connection with Bills or resolutions for the abolition of the death penalty, and the discussions in Parliament, bearing on various aspects of the problem, have been instructive.

1. Report of the Royal Commission on Capital Punishment (1953), Cmd. 8972.

2. Report of the Joint Committee of the Senate and House of Commons (Canada) on Capital Punishment, dated the 27th June, 1956 (Third Session-22nd Parliament).

3. Report of the Commission of Inquiry on Capital Punishment (Ceylon) (September, 1959), (Sessional Paper XIV-1959).

9. The (English) Homicide Act, 19571, the discussions that took place in the House of Commons and the House of Lords before the passing of the Act, the studies that have been published as regards the working of the Act, and the case law pertaining to several legal questions that arose under the Act, were also gone into. In 1965, relevant provisions of the Homicide Act were temporarily repealed by the Murder (Abolition of Death Penalty) Act, 19652, and we have considered the available material relating to the latter Act also.

1. Relevant provisions of the Homicide Act, 1957 (5 and 6 Eliz 2 C. 11) are temporarily repealed by the Murder (Abolition of Death Penalty) Act, 1965 (Chapter 71).

2. The Murder (Abolition of Death Penalty) Act, 1965 (Chapter 71).

10. The replies received to the Questionnaire issued by the Commission on the subject1 not only furnished guidance on many points, but supplied rich material, the value of which was enhanced because of the practical experience possessed by many of the persons who sent the replies.

1. Para. 6, supra.

11. Literature on the subject, which is abundant, has been gone through. Available statistical material, contained in official publications, was before the Commission, and figures on certain aspects have been obtained from the Supreme Court, High Courts, States Governments, etc. And, lastly, the excellent brochure brought out by the United Nations on Capital Punishment1 has been of great use to the Commission.

1. United Nations, Department of Economic and Social Affairs 1962, Code No. ST/SOA/ SD/9, "Capital Punishment".

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