Report No. 35

Chapter X

Reasons for Sentence

Topic Number 41

Replies to Question No. 8

800. Question 8.-

Question 8 in our Questionnaire was as follows:-

"Should there be a provision in the law requiring the court to state its reasons for imposing a sentence of death or the lesser punishment of imprisonment for life?".

801. Replies to Question 8.-

The replies received on this question may be said to fall under four groups. First, those which take the view that a provision should be inserted requiring the court to state its reasons for imposing either of the two sentences; secondly, those which express the view that reasons should be given only where death sentence is imposed; thirdly, those which express the view that reasons should be given only when the lesser sentence is awarded; and, fourthly, those which maintain that reasons need not be given in either case.

Perhaps the largest number of replies fall under the first group, and suggest that there should be a provision in the law requiring the court to state reasons for imposing the sentence of death or imprisonment for life. This view is shared by certain State Governments1, Bar Councils2, High Courts3, some Members of Parliament or State Legislatures4, one retired High Court Judge5, several officers6, certain Associations7 and several members of the Bar and other gentlemen8.

1. A State Government, and Government of a Union Territory. See also reply of a Home Secretary, S. Nos. 154, 164 and 131.

2. Two Bar Councils, S. Nos. 116 and 159.

3. A High Court, S. No. 187.

4. A Dy. Minister in the Union, S. No. 210; a member, Rajya Sabha, S. No. 207; a Revenue Minister of a State, S. No. 216; an M.L.A., Madhya Pradesh, S. No. 213.

. A retired Judge, High Court of Bombay, S. No. 95.

6. Law Secretary to a State Government, S. No. 162; an Inspector-General of Prisons, S. No. 131; an Inspector-General of Police, S. No. 131 an Inspector-General of Prisons, S. No. 143.

7. The Indian Federation of Women Lawyers, Bombay, S. No. 121.

8. S. No. 122, an eminent Advocate through the Bar Council of India S. No. 161; an Advocate of the Original Side (Bombay), S. No. 921 a Barrister of Calcutta, S. No. 150; a Pleader, Saharanpur, S. Nos. 151 and 126.

802. In the reply of a State Government1, it has been stated that reasons are normally given in both cases, but that it would be desirable to insert a provision that the Judge should give the reasons for the sentence which he awards, whatever be the sentence. According to another State Government2, the court ordinarily gives reasons, but, there is no objection to a provision as suggested.

One State Government3, while not stating that a statutory provision is needed, has emphasized that when the matter is left to the judges it means that it must be judicially determined, based on reasons and or the facts of the case. This is especially so when the decision is subject to appeal. Another State Government4 is in favour of a provision requiring reasons in both cases.

1. S. No. 242.

2. S. No. 361.

3. S. No. 574.

4. S. No. 580.

803. One of the High Courts1 has stated that in view of the fact that the discretion is to be vested in the court, it would be desirable that reasons for awarding or not awarding the death penalty should be stated, so that the higher court can examine whether the discretion has been properly exercised; at the same time, the High Court states, it is not necessary to make any specific provision in the matter, as it is well-known to courts exercising discretion in appealable cases that they should give reasons as to why the discretion has been exercised one way or the other.

1. A High Court, S. No. 167.

804. A High Court Judge1, while stating that the normal sentence for murder should be death, but in mitigating circumstances the court may award the lesser sentence, has expressed in these words his opinion as to the need for a provision requiring reasons to be given for both the sentence of death and the sentence of imprisonment for life. "In my opinion, there should be a provision in the law requiring the court to state its reasons for imposing the sentence of death or the lesser punishment of imprisonment for life in any case in which it has a discretion to do so, so that the court of appeal or the higher authorities can consider the reasons of the learned Judge in deciding to pass the particular sentence that he has done".

1. S. No. 396, in reply to questions 7 (a) and 8.

805. According to the Law Minister of a State1, the law should provide that the court should record adequate reasons for awarding any sentence whatsoever; that is very necessary and would, to a large extent, prevent miscarriage of justice. The Law Minister of another State is also in favour of such a provision2. Several High Court Judges are in favour of such a provision3.

1. S. No. 253.

2. S. No. 313.

3. S. Nos. 251, 252 and 316.

806. It is also the view of a distinguished Member of the Rajya Sabha1, and of several Members of State Legislatures2, that reasons should be required to be given in both cases.

1. S. No. 245.

2. S. Nos. 243, 244, 248 and 249.

807. According to a Judicial Officers' Association1, there should be a provision in the law requiring the court to state its reasons for imposing either sentence.

1. S. No. 374.

808. In the reply of several District and Sessions Judges1, a provision requiring reasons for either sentence is favoured on the ground that this would furnish material to the Appellate Court to consider the reasons.

1. S. Nos. 387 and 437.

809. According to a District and Sessions Judge in the State of Maharashtra1, if the Judge is made to give reasons for the particular sentence which he wished to impose, there would be less chances of the imposing of the sentence being based on caprice, and the Appellate Court will have proper material to assess whether the reasons are in accordance with the principles or not.

In the reply of a Judicial Officer2, it has been pointed out that a judgment is an indivisible whole, and when the judge convicts or acquits, he rivets his eye on every circumstance. A plea for requiring reasons is nothing better than an insistence upon the essential requirements of a judgment.

1. No. 346.

2. S. No. 472.

810. It may be stated here that those who belong to the first group have advanced various arguments in support of a provision requiring statement of reasons. It is stated that such a provision will enable the Appellate Court, when reviewing the quantum of punishment, to appreciate the correctness of the punishment1. It is also stated that it will show that justice is done on the basis of satisfactory evidence and logic and reasonable conclusions2. One reply3 points out that it would be guide to the concerned authorities in dealing with petitions for mercy.

1. An Inspector-General of Police, S. No. 131.

2. S. No. 118.

3. A retired Judge of the Bombay High Court, S. No. 95.

811. The second group comprises those who take the view that reasons should be given only where the sentence of death is imposed. This view is expressed by a State Government1, several High Court Judges2, some Members of State Legislatures3, a State Law Commission4 (which has suggested that section 367(5) of the Code of Criminal Procedure 1898 should be amended accordingly); a Judicial Officers' Association,5 some Judges of City Civil Courts6, District and Session Judges7, a Bar Association8, a Bar Council9, some Members of the Bar10 and others11-12.

1. S. No. 129.

2. S. Nos. 197, 230, 262 and 397.

3. S. Nos. 221, 225 and 226.

4. S. No. 101.

5. S. No. 373.

6. S. Nos. 379, 380, 381 and 434.

7. S. Nos. 353, 383, 399, 416, 440 and 420.

8. S. No. 426.

9. S. No. 115.

10. S. No. 104.

11. S. No. 117.

12. S. No. 304.

812. The argument advanced in support of this view1 is, that a provision, requiring statement of reasons for imposing death sentence is necessary to ensure that the courts do not impose the extreme penalty arbitrarily without a consideration of the extenuating circumstances mitigating the offence.

1. A State Government, S. No. 129.

813. The third group comprises replies which take the view that reasons should be given where imprisonment for life is awarded. Thus, one reply has stated that, to the average man, the judiciary is next to God, and judgments of courts carry respect, honour and dignity, and that while imposing the death sentence reasons need not be given, but reasons should be given for the lesser punishment1.

The Chief Justice of a High Court has suggested2 that old section 367(5) of the Code of Criminal Procedure, 1898, should be restored.

Certain High Court Judges3 have stated that, as a rule, capital punishment should be awarded unless the Judge, in his discretion, for reasons to be recorded, comes to the conclusion that it is a fit case where the death sentence should not be awarded. To this third group belong certain other High Court Judges4, a few State Governments5, and Administrations6, and some Bar Associations7, and certain officers8.

1. S. No. 127.

2. S. No. 316.

3. Two High Court Judges, S. No. 154.

4. S. Nos. 97, 236 and 394.

5. A State Government, S. No. 182.

6. Administration of a Union Territory, S. No. 106.

7. A District Bar Association, S. No. 125.

8. An Inspector-General of Police, S. No. 143.

814. One State Government1 has stated that such a provision (for giving reasons when awarding the lesser punishment) will exclude the possibility of a Judge acting arbitrarily in the matter of imposition of sentence in any particular case. Several District and Sessions Judges2 and others3 are of the view that reasons for imposing the lenient sentence should be given.

1. Reply of a State Government, S. No. 182, under question 8.

2. S. No. 325; S. No. 335; S. No. 336; S. No. 348; S. No. 349; S. No. 370; S. No. 431; S. No. 444.

3. An Inspector-General of Prisons, S. No. 264.

815. The fourth and last group comprises those replies which take the view that there is no necessity for requiring reasons to be stated in either case. One High Court1, one State Government2, a Member of a State Legislature3, and others4-5 are of this view.

1. A High Court, S. No. 140.

2. A State Government, S. No. 143.

3. An M.L.A., Lucknow, S. No. 102.

4. A retired District and Sessions Judge, Nagpur, S. No. 139.

5. A District Bar Association, S. No. 218.

816. According to the Chief Justice of a High Court1, the question of giving reasons for a particular sentence would arise only if that sentence is regarded as not the "normal" sentence. According to him, there should be no such thing as a "normal" sentence for murder. The sentence is in the discretion of the court. It would not be proper for the law to select any particular sentence for the purpose of prescribing that reasons should be given2 for imposing it. Some High Court Judges have stated that no specific provision is necessary3.

1. S. No. 393, reply to questions 7(a) and 8.

2. S. Nos. 97, 236 and 394.

3. S. No. 262.

817. It has been stated by the Home Minister of a State1 that it would not be advisable to make the law rigid in the manner suggested. The reply of an Advocate-General2 states that no special rule need be enacted for death sentence. Reasons, it is stated, must be given for awarding any sentence.

1. S. No. 258.

2. S. No. 229.

818. A principle Judge1 of a City Sessions Court is also of the view, that there is no need for a provision requiring reasons to be stated.

1. S. No. 352.

819. Some replies state, that courts invariably give reasons, but no separate provision is necessary1-4. Some District and Sessions Judges have expressed a view to the same effect5.

1. An Inspector-General of Police, S. No. 263.

2. A District Magistrate, S. No. 286.

3. A State Government, S. No. 311.

4. Administration of a Union Territory, S. No. 303.

5. District and Sessions Judges, S. No. 330; S. No. 339; S. No. 340; S. No. 347; S. No 350; S. No. 366; S. No. 415; S. No 442.