Report No. 35
Exemption in Particular Cases
Topic Number 43
Replies to Question 9
823. Question 9.-
Question 9 in our Questionnaire was as follows:-
"Do you consider that even if the sentence of death is retained certain classes of persons should not be punished with death, e.g., children below a particular age, women, etc.? What classes of persons should, in your opinion, be excluded from the sentence of death?
824. Replies to Question 9.-
The replies received on this question1 mostly express views about granting exemptions in respect of-
(ii) pregnant women;
(iii) women generally;
(iv) old persons;
(v) diminished responsibility; and
1. Para. 823, supra.
825. It will be convenient to deal with each category separately. But, before dealing with these categories, it would be useful to point out that there are certain replies which state that no statutory provision is necessary and that the matter should be left to the discretion of the Court1-12.
1. A High Court, S. No. 167.
2. A High Court Judge, S. No. 97.
3. A State Government, S. No. A 182.
4. A State Government, S. No. 143.
5. A Member, Madras Bar Council, S. No. 104.
6. A retired Judge of the Bombay High Court, S. No. 95.
7. An Advocate, (Original Side) Bombay, S. No. 92.
8. A Member of the Rajya Sabha, S. No. 207.
9. A Member of the Rajya Sabha, S. No. 209.
10. Revenue Minister of a State, S. No. 216.
11. An M.L.A., Lucknow, S. No. 102.
12. Bharat Sewak Samaj, New Delhi, S. No. 145.
826. A State Government1 is of the view that women and children cannot be excluded altogether from the death penalty, as it is difficult to conceive of any extenuating circumstances merely because of non-age or sex.
Another State Government2 has thus expressed its view:-
"The differential treatment of offenders who have committed similar offences punishable with death is already affected by courts or by Governments acting in pursuance of sections 401-402A of the Criminal Procedure Code and Articles 72 and 161 of the Constitution of India. Since clemency where extenuation can be shown is more usual than not, it is not necessary to classify persons as liable to be sentenced to death and as not liable to be so sentenced.".
1. S. No. 574.
2. S. No. 580.
827. According to the view expressed by the Chief Justice of a High Court1, the matter should be left to the discretion of the courts because the age of the offender is always taken as a good ground for not passing the capital sentence, and (as regards women), women are not ordinarily sentenced to death except in certain cases of cold-blooded murders like murder by poisoning.
1. S. No 316.
828. A High Court Judge1 has stated that it is not desirable to exempt any particular classes of persons from the penalty of death, but the conventional standards regarding awarding of death sentence operate quite satisfactorily-for example, a pregnant woman or a child of immature or emotional age not being sentenced to death.
1. S. No. 396.
829. According to several High Court Judges1 no exception is necessary, and no change is required in the present law.
1. S. No. 262.
830. According to the Administration of a Union territory1, discretion in the matter may be left to the courts.
1. S. No. 303.
831. A City Civil Court Judge in Bombay has stated that it will be highly dangerous to exclude women and children from death penalty, because intending criminals will then employ women and children to commit planned and calculated murders. The reply states that the employment of children in the transportation and possession of illicit liquor is common, particularly in the city of Bombay.
832. According to a District and Sessions Judge in the State of Maharashtra1 no provision in law should be made for exempting particular classes of persons, because it would be unjust to lay down rules of law excluding certain classes of people from the operation of death sentence merely on account of their age and sex. It is stated that it is not possible for the Legislature or for the Legal Draftsman to envisage every possibility or contingency in the infinite complexity of human life.
1. S. No. 330.
833. Several District and Sessions Judges also think that a statutory exemption is not necessary1.
1. S. Nos. 382, 385, 387, 391, 416, 421, 431 and 436.
834. One District and Sessions Judge in the State of Maharashtra1 has stated that the classification of murders should not be person-wise, but the sentence of death should be reserved for cases where the act is very brutal and highly repugnant to morals. The reply states that the courts do take into consideration the youth and sex of the offender, but it would not be a good public policy to provide by law, that no matter howsoever cold-blooded, pre-meditated and brutal the murder is, the offender would not be punished with death only because of his youth or her sex.
1. S. No. 420.
835. According to a Bar Association1, no exemption should be granted, because a murderer is a murderer whether a child or a woman, and the court should treat them alike.
1. S. No. 220.
836. Certain replies1 express no views on the subject.
1. A High Court, S. No. 140.
We may now take up the opinions expressed as to each category of persons proposed to be exempted. Coming, first, to children, we may note that a vast number of replies have favoured a provision for exempting children below a particular age from death penalty.
838. A State Law Commission1 has suggested that a person who has not attained the age of 18 years should not be sentenced to death, except in case of a murder after he has been convicted of a murder previously or while undergoing a sentence of imprisonment for having committed a murder.
1. A State Law Commission, S. No. 101.
839. According to the Chief Justice of a High Court1, persons below the age of 21 may be excluded from the operation of the sentence of death.
1. S. No. 393.
840. According to a High Court Judge1, the death sentence should not be imposed on a person below 25.
1. S. No. 397.
841. A State Government1 has favoured exemption of children below 21 years.
1. S. No. 242.
842. Exemption for children has been favoured in the reply of a Minister of a State Government1 on the ground that the brain of a child is supposed to be immature. "He is unsophisticated. Even murder is committed without thinking of any consequences. So this is a state of innocence and, therefore, death sentence may be too harsh a punishment.
1. S. No. 221.
843. According to the Law Minister of another State1, persons under the age of majority should be exempt.
1. S. No. 313.
844. Some High Court Judges1, a High Court2 and a State Government3, have replied that the death penalty should not be imposed on children below 18 years of age.
1. High Court Judges, S. No. 147; S. No. 230; S. No. 316, reply to questions 5 and 9.
2. A High Court, S. No. 187.
3. A State Government, S. No. 154.
845. Several other persons and bodies have also favoured the grant of exemption to children, though the ages suggested differ. Certain replies suggest the age of 161. Certain replies suggest the age of 182. Certain replies suggest the age of 143. Certain replies suggest the age of 124.
1. An Advocate-General, S. No. 143; A Bar Council, S. No. 132; A Home Secretary to State Government, S. No. 131; A District Bar Association, S. No. 125; An Inspector-General of Prisons, S. No. 166.
2. Bar Association of India, S. No. 183; Supreme Court Bar Association, S. No. 110.
3. A Bar Council, S. No. 159; An eminent Member of the Bar, through the Bar Council of India, S. No. 161; Indian Federation of Women Lawyers, Bombay, S. No. 121.
4 A State Government, S. No. 129; A Bar Council, S. No. 116.
846. According to some District and Sessions Judges1, persons below 21 should be exempt. Many District and Sessions Judges2 have suggested exemption for persons under 18.
1. S. Nos. 341, 375 and 386.
2. S. Nos. 351, 354, 362, 366, 388, 427, 437, 444 and 445.
847. The age of 20 has been suggested in certain replies1. One reply2 suggests that a person under the age of 20 should not be sentenced even to life imprisonment. Some other replies3-4 merely suggest that children should be exempted, but do not specify the age.
1. An Advocate, through the Bar Council of India, S. No. 161.
2. A Member, Rajya Sabha, S. No. 206.
3. A Deputy Minister of the Union, S. No. 210.
4. An M.L.A. in Madhya Pradesh, S. No. 213.
848. As pointed out already1, some of the replies to question 9 are opposed to any statutory provision relating to the grant of exemption for any class. A few important points may be stated. Thus, a State Government2 has pointed out that if any provision is made in the law (exempting particular categories of persons), a habitual criminal would employ the services of exempted persons to commit serious crimes.
1. See paras. 825-835, supra.
2. A State Government, S. No. 182.
849. One High Court1, while opposing the suggestion of grant of exemption to children, has stated that even in the absence of such exemption, the sentence of death is not likely to be passed for an offender below 18 except in rare or exceptional cases.
1. A High Court, S. No. 167.
850. A senior Advocate of the High Court of Bombay1 is of the opinion that while the death sentence should not ordinarily be awarded to persons under 18 except in extremely aggravated cases of murder, yet crimes of gross and brutal violence by young people have become extremely common, and any general exemption on the ground merely of age, regardless of other circumstances, might encourage this tendency to stab or shoot on the part of young persons for a slight cause.
1. S. No. 318.
851. A Bar Association1 has stated that sex and youth need not, in all cases, be a ground for a lenient view, and has referred in this connection to a Madras case of cold-blooded murder of a boy aged 18 years for gain, committed by two boys between 16 and 17 years1.
1. S. No. 426.
2. The reference seems to be to the case of Govindaswami, AIR 195 Mad 372. (The sentence of death was not, however, awarded in that case owing to a difference of opinion between the two Judges of the Bench which heard the matter).