Report No. 35
Summary of Main Conclusion and Recommendations
1. The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind.1
It is difficult to rule out the validity of, or the strength behind, many of the arguments for abolition. Nor does the Commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment, and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values.
Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment2.
Arguments which would be valid in respect of one area of the world may not hold good in respect of another area, in this context. Similarly, even if abolition in some parts of India may not make a, material difference, it may be fraught with serious consequences in other parts3.
On a consideration of all the issues involved, the Commission is of the opinion, that capital punishment should be retained in the present state of the country4.
1. See para. 262.
2. See para. 263.
3. See para. 263.
4. Para. 264.
2. (a) The deterrent object of capital punishment is the most important object. Indeed, it would seem to constitute its strongest justification1. Even if all the other objects were to be kept aside, the deterrent object would, by itself, furnish a rational basis for its retention.
The retributive object cannot, however, be totally ruled out. "Retribution", as used here, does not mean the primitive concept of "eye for an eye", but connotes the expression of public indignation at a shocking crime, which can better be described as "reprobation"2.
The retributive object is also reflected in its negative aspect. Where the circumstances of a crime are such that they excite not a sense of shock but a feeling of pity, the "reprobation" is off-set by the "extenuating circumstances". A subdued sympathy takes the place of reprobation; public feeling sides itself in favour of the offender; the law bows down to this feeling, whether through the court or through the prerogative of mercy or by express provision in some cases3.
Even after all the arguments advanced to support the abolition of capital punishment are taken into account, there does remain a residuum of cases where it is absolutely impossible to enlist any sympathy on the side of the criminal, or to postulate any mental abnormality on his part, or to assert that the deterrent effect is counterbalanced by any external factors i.e., factors other than Will and determination of the criminal4.
(b) Punishment as a deterrent has various aspects, namely, to stop the offender from offending again (particular deterrence), to deter other potential offenders (general deterrence), and to protect the society from the persistent offender (protection)5.
After a discussion in detail of the various arguments pertaining to the deterrent effect of capital punishment, the Commission has reached the conclusion that capital punishment does act as a deterrent6.
1. See paras. 295-296.
2. Para. 297.
3. Para. 298.
4. Para. 300.
5. Para. 294.
6. Paras. 370-372.
3. (a) On the footing that capital punishment is to be retained, no material changes as regards the sentence of death are recommended in respect of the offences which are, at present, punishable with death under the Indian Penal Code, sections 121, 132, 194, (second para.) 302, 3031, 305, 307, 3962.
(b) The Commission does not recommend, in the present report, that any other offences under the Indian Penal Code or any other law should be punishable with death3-15.
1. See also point No. 4, in this summary, regarding section 303, Indian Penal Code.
2. See para. 395 (general) read with paras. 77, 78, 83, 84 (for murder-section 302), paras. 396-397 (sections 121 and 132), paras. 398-404 (section 194) para. 405 (section 303), para. 407 (section 305), para. 410 (section 307), paras. 411-412 (section 396).
3. Para. 463 (Adulteration).
4. Para. 464 (Armed Forces).
5. Para. 465 (Arson).
6. Para. 473 (Espionage).
7. Para. 476 (Hoarding, Profiteering and Black marketing).
8. Para. 477 (Kidnapping).
9. Paras. 481-501 (Negligence-Homicide by).
10. Para. 522 (Rape).
11. Para. 528 read with para. 471 (Sabotage).
12. Para. 529 (Secession-preaching of).
13. Par. 530 (Smuggling).
14. Para. 531 (Train Robbery and Wrecking).
15. Para. 539 (Treason).
4. The relevant provisions in the Indian Penal Code which vest in most cases a discretion in the court to award the sentence of death or the lesser sentence of imprisonment for life have been considered. The vesting of such discretion is necessary, and the provisions conferring such discretion are working satisfactorily1.
Section 303, Indian Penal Code, under which the sentence of death is mandatory for an offence under the section, need not be amended by leaving the question of sentence to the discretion of the Court, or by confining the operation of the section to cases where the previous offence is an offence for which the offender could have been sentenced to death2.
1. Paras. 580-585.
2. Paras. 587-591.
5. The considerations which weigh or should weigh with the court in awarding the lesser punishment of imprisonment for life, (in respect of offences for which the prescribed punishment is death or imprisonment for life), cannot be codified. The circumstances which should or should not be taken into account, and the circumstances which should be taken into account along with other circumstances, as well as the circumstances which may, by themselves, be sufficient, in the exercise of the discretion regarding sentence, cannot be exhaustively enumerated.1
Further, the exercise of the discretion may depend on local conditions, future developments, evolution of the moral sense of the community, the state of crime at a particular time or place, and many other unforeseeable features. Codification of these considerations may, if attempted, be too wide and too narrow at the same time2. No change in the law is, therefore, recommended on this point3.
1. Para. 629.
2. Paras. 630-631.
3. Paras. 632-634.
6. It is not desirable to divide murder into different categories for the purpose of regulating the punishment for murder, or to divide murders into capital and non-capital. The crime of murder is one of infinite variety. Many factors have to be taken into consideration, and not infrequently, a careful balancing of conflicting considerations has to be undertaken. No amount of verbal dexterity can surmount these difficulties1-2.
1. Paras. 700-705 (General discussion).
2. For specific points, see para. 516 (Pre-meditation); para. 21 (Scheme in Penal Code of Burma); para. 725 (intent to kill).
7. The Commission does not recommend any provision-
(a) that the normal sentence for murder should be imprisonment for life but in aggravating circumstances the court may award the sentence of death1, or
(b) that the normal sentence for murder should be death but in case of extenuating circumstances the court may award the sentence of imprisonment for life2.
1. Para. 790.
2. Para. 791.
8. There should be a provision in the law requiring the court to state its reasons for imposing a sentence of death or the lesser sentence of imprisonment for life, in respect of any offence which is punishable with death or imprisonment for life in the alternative.
The Code of Criminal Procedure, 1898, be amended accordingly1.
1. Paras. 820-822.
9. Assuming that the sentence of death is to be retained, the question of exempting certain classes of persons from the sentence of death was considered. The conclusion reached with respect to each class of persons is as follows:-
(i) Children-Persons below 18 years of age at the time of the commission of the offence should not be sentenced to death.1 A provision to that effect can be conveniently inserted in the Indian Penal Code, as section 55B.
(ii) It is not necessary to exempt women generally from the sentence of death.2
(iii) Regarding pregnant women sentenced to death, the existing provisions are discussed. It is not necessary to add to the existing provisions by inserting elaborate provisions regarding medical examination of the woman, or appeal by her as to the a finding that she is not pregnant3.
(iv) It is not necessary to add any provision in the law for exempting from the sentence of death, cases of a mother killing her infant child within a certain period after the, delivery4.
(v) It is unnecessary to insert a statutory provision as to cases of "diminished responsibility"5.
(vi) It is unnecessary to exempt, from the sentence of death, the other classes of persons mentioned in some of the suggestions6.
1. Paras. 878-887.
2. Paras. 888-890.
3. Para. 893.
4. Para. 898.
5. Para. 924.
6. Para. 925.
10. Enlargement of the appellate jurisdiction of the Supreme Court, so as to provide that an appeal shall lie to the Supreme Court as a matter of right in all cases in which a sentence of death has been passed, confirmed or upheld by the High Court, is not recommended1.
1. Paras. 982-985.
11. (a) No changes are suggested with respect to the Power of the President and the Governor to grant pardon, reprieve, respite or remission-in respect of the punishment of death or to suspend remit or commute the sentence of death under Articles 72 and 161 of the Constitution, or with respect to the power of the Government to suspend remit or commute such sentence under sections 401 and 402, Code of Criminal Procedure, 18981.
(b) (i) Having regard to the fact that the circumstances of each case must differ from another, it would not be desirable to attempt to lay down any rigid and exhaustive provisions as to the principles which should guide the exercise of these powers2.
(ii) As regards the procedure which should be followed in the exercise of these powers, it is not necessary to have any statutory provisions for
(1) compulsory consultation with the Judges3;
(2) an Advisory Board4
(3) requiring publication of the reasons for exercise of the power, in a particular case5;
(4) requiring prior recommendation of the court, before grant of commutation6
(5) compulsory consultation with the Attorney-General7.
1. Para. 1025 read with paras. 1001 and 1002.
2. Para. 1075, read with para. 1026.
3. Para. 1085.
4. Paras. 1086-1089.
5. Para. 1090.
6. Para. 1091.
7. Para. 1092.
12. (a) The opinions received on the subject of the method of execution of the sentence of death are considered. A method which is certain, humane, quick and decent should be adopted. But a positive opinion cannot be expressed (in the present state of knowledge on the subject), and it is not possible to recommend any change in the present method of hanging1.
(b) The question, whether executions should be held in public, is considered. An execution in public would be repulsive, and that is a sufficient argument against its introduction in India2. It is not necessary to give prior or subsequent publicity to an execution.3
(c) The present position as to the interval between the sentence of death and the actual execution is discussed4.
(No statutory provision recommended).
1. Paras. 1149-1150.
2. Paras. 1152-1153.
3. Para. 1153.
4. Paras. 1161 and 1162.
13. Some of the other related topics discussed are-(i) Plea of guilty in a trial for a capital offence.
(No specific provision recommended).1
(ii) Medical examination of the accused in a capital case, for determining his sanity.2
(iii) Restitution to the victim of crime. (The matter is one of policy, not arising out of abolition)3.
(iv) Rehabilitation4 of families of criminals, condemned to death (Suggestion noted. No change in law recommended).
(v) Forfeiture of property of the offender-and its disposal in favour of heirs of the person murdered. (No recommendation made for change-Suggestion noted5.)
(vi) After-care of prisoners (sentenced to life imprisonment), after their release from prison. Recommendation made6 that figures of recidivism may be published and made available in a convenient form or included in the official annual publication "Crime in India". Figures of recidivism (i.e., a capital crime or crime involving violence committed by a prisoner sentenced to imprisonment for life, after his release) would be of interest in assessing how far the sentence of imprisonment has worked as a deterrent.
(vii) Rules relating to remission of period of imprisonment in case of persons sentenced to imprisonment for life, referred to (The question of amendment to rules is not considered in this Report)7.
(viii) Legal aid-All State Governments and High Courts may review the provisions regarding the assistance of Counsel in Capital Cases, in order to consider8-
(a) whether the right (to be provided with counsel) is effective in practice, with reference to the criteria indicated in the Report9, and
(b) particularly, whether the fees allowed to counsel are adequate to attract good talent.
1. Paras. 990-996.
2. Paras. 997-1000.
3. Para. 1155.
4. Para. 1156.
5. Para. 1160.
6. Para. 1163.
7. Para. 1164.
8. Para. 1175.
9. Paras. 1171-1173.
J.L. Kapur, Chairman.
K.G. Datar, Member.
S.S. Dulat, Member.
T.K. Tope, Member.
Rama Prasad Mookerjee, Member.
P.M. Bakshi, Joint Secretary and Legislative Council
Dated: 30th September, 1967.