Report No. 35
852. Pregnant women.-
The second category of persons which we may discuss is that of pregnant women. A large number of replies has suggested the exemption of such women from the death penalty. Such replies have been received from various sources, e.g., a State Government1, High Court Judges2, Bar Councils3, Members of State Legislature4, Bar Associations5, Sessions Judges6, and eminent members of the Bar7.
1. A State Government, S. No. 129.
2. Some High Court Judges, S. Nos. 97 and 147.
3. A Bar Council, S. Nos. 116 and 159.
4. An M.L.A., Madhya Pradesh, S. No. 213.
5. The Bar Association of India, S. No. 183.
6. A District and Sessions Judge in Gujarat State, S. No. 212.
7. An eminent member of the Bar through the Bar Council of India, S. No. 161.
853. One State Government1 has suggested that women with small children should be exempted.
1. A State Government, S. No. 154.
854. Exemption of pregnant women from the death penalty has been suggested by certain Bar Association1, High Court Judges2, Law Minister of a State3, Government of a State4 and some High Court Judges of the same State5.
1. S. Nos. 223 and 227.
2. S. No. 230.
3. S. No. 253.
4. S. No. 261.
5. S. No. 262.
855. The Judicial Section1 of the Indian Officers' Association in a State favours exemption of pregnant women.
1. S. No. 562.
856. As against this, a State Government1 and a State Law Commission2 regard the existing provisions of section 382, Code of Criminal Procedure as enough. And, as already noted3, a general opposition to exempting any class of persons is also evidenced in certain replies.
1. A State Government, S. No. 311.
2. A State Law Commission, S. No. 101.
3. See paras. 825-835, supra.
857. Women generally.-
Coming to the third category-women generally,-we may note that several replies are in favour of exempting women generally from capital punishment. These replies have been received from various sources, e.g., some High Court Judges1, Officers2, Bar Councils3, individuals4, and members of the Bar5.
1. Chief Justice of a High Court and one High Court Judge, S. No. 130. Two High Court Judges, S. Nos: 394 and 397.
2. An Inspector-General of Police and a Home Secretary to State Government, S. No. 131.
3. A Bar Council, S. No. 115.
4. S. No. 117.
5. An Advocate, through the Bar Council of India, S. No. 161.
858. Exemption for women has also been suggested by a Member of a State Legislative Assembly1, a Bar Association2, a State Government3, a Member of a State Legislature in U.P.4, Chief Minister of a State5, an Advocate who was formerly a Member of the Lok Sabha6, and by several District and Sessions Judges7.
1. S. No. 232.
2. S. No. 234.
3. S. No. 242.
4. S. No. 243 (excluding women convicted previously for moral turpitude).
5. S. No. 255.
6. S. No. 305.
7. S. Nos. 354, 358, 362, 371, 383, 386, 388, 389, 390, 525 and 551.
859. A District and Sessions Judge in Maharashtra1, who favours exemption of women has, however, expressed the apprehension that it might be regarded as unconstitutional.
1. S. No. 366.
860. Certain District and Sessions Judges in other States are also in favour of exemption of women1.
1. S. No. 433, A District and Sessions Judge in Orissa; S. No. 445, A District and Sessions Judge in Bihar.
861. But many of the replies on this point are in the other direction, and oppose the suggestion to exempt women. Women, it is stated1, should not be protected as a rule, because some of the most cold-blooded murders are committed by women out of jealousy, desire for gain or vengeance.
1. A retired District and Sessions Judge, Nagpur, S. No. 139.
862. A High Court Judge1 has stated, that there is no justification for making a distinction between men and women so far as crime and punishment are concerned, apart from the fact that such distinction would offend the Constitution. One officer 2 is opposed to any exemption being given to women, on the ground that they are partisans in murders, and stand on equal footing with men in the conduct of murders.
The reply of another High Court Judge3 points out that the heinousness of a crime is not reduced merely by the fact that it is committed by a woman, and that there have been numerous cases in which women have been found guilty of murdering their husbands in cold-blood. Such women do not, it is stated, deserve any mercy. These replies are in addition to the general opposition to the grant of exemption to any class of persons evinced in many replies.
1. A High Court Judge (Assam High Court), S. No. 97.
2. An Inspector-General of Prisons, S. No. 147.
3. A High Court Judge, S. No. 147.
863. A High Court Judge1, who has opposed the grant of exemption to women, has stated that women might get exemption either on the ground of age or general extenuating circumstances, but women as such should not be exempted. He has stated that the popular notion that women are less likely to commit murders is not based on experience. Actually, some of the most cruel and premeditated murders have been committed by women.
eneral exemption for women has been opposed by an Advocate-General2.
A distinguished Member of the Rajya Sabha3 has stated that there should be no difference made between the sexes in the case of capital punishment.
1. S. No. 251.
2. S. No. 229.
3. S. No. 245.
864. A senior Member of the Bombay Bar1 has expressed this view, while opposing the exemption of women generally:-
"There is no ground at all for exemption of women. If anything, a female killer is more brutal and malignant than a male murderer. It is not merely in fiction and drama that female friends of the type of Lady Macbeth commit or abet diabolical murders. Besides, the present generation of militant women might resent such discrimination as derogatory.".
1. S. No. 318.
865. The Principal Judge of a City Civil Court and Sessions Judge in a Presidency Town1 has stated that there should be no exclusion for women and children, as otherwise intending criminals will employ women or children to commit such crimes.
1. S. No. 434.
866. A Judicial Officers' Association1 has stated that it has been their experience that women are equally ferocious as men, if not more, and that if they are exempt from death sentence, they might be made a tool in the hands of men to commit murders.
1. S. No. 373.
867. A District and Sessions Judges1 has pointed out that in actual experience it is not impossible that cases may arise where a woman may be found to be deserving the capital punishment.
1. S. No. 334.
868. A District and Sessions Judge in the State of Maharashtra1 has expressed this view:-
"I would not include women in that category. I have strong opinion as regards women. Their crimes of murders sometimes are most heinous, motivated by immoral causes as distinguished from righteous indignation sometimes obtaining in the case of men, and at the same time they are able to swallow and conceal quietly the poison and after-effects of their crimes. They should also be met in such circumstances with death sentence.".
1. S. No. 367.
869. A District and Sessions Judge1, while stating that generally courts are not inclined to sentence women to death and it is only in serious types of cases that such a sentence is awarded, is opposed to any statutory exemption.
1. S. No. 415.
870. Several replies would like the exemption of a particular class of women, e.g., women with small children1, unmarried mothers killing the unwanted child2, and women committing murders under extreme and distressed conditions3.
1. A State Government, S. No. 154.
2. A Pleader, Calcutta, S. No. 128.
3. A District Bar Association, S. No. 125.
871. Old persons.-We may now come to the question of exemption of old persons. This exemption has been suggested in a few replies. Various ages have been suggested, e.g., 80 years1, 70 years2, 60 years3, and 55 years4.
1. S. No. 138.
2. An Inspector-General of Police, S. No. 131.
3. S. No. 117.
4. An eminent member of the Bar, through the Bar Council of India, S. No. 161.
872. Diminished responsibility.-
Taking up the defence of "diminished responsibility", we note that its adoption has been suggested in a few replies as a ground of exclusion from the death sentence1-2. It may be noted that in reply to another question a High Court Judge3 has also suggested the extension of this principle as introduced in the United Kingdom, and one High Court4 has suggested legislation generally on the lines of the Homicide Act. 1957. Adoption of the provisions of the Homicide Act has been suggested in another reply also5.
Reply of a High Court Judge6 is as follows:-
"There is the existing structure; sections 299 and 300, Indian Penal Code and the different punitive sections 302 and 304, Indian Penal Code. Perhaps, as in the Homicide Act in United Kingdom, we could introduce an exception for abnormality of mood viz., psychotic state, where the requirements of section 84, Indian Penal Code cannot be satisfied. This could be punishable under section 304, Indian Penal Code.".
The Chief Justice of a High Court7 has stated that persons of unsound mind should be exempt.
A provision for exemption for abnormality of mind on the lines of the (English) Homicide Act, 1957 has been suggested by a High Court Judge8.
1. Shri M.P. Somasekhara Rao, Advocate and Chairman, Gokhale Institute of Public Affairs, Bangalore, S. No. 126 (under question 9).
2. S. No. 122.
3. A High Court Judge, S. No. 105 (under question No. 1).
4. A High Court, S. No. 136, under questions 1 and 3(a).
5. A Reader in Criminal Law, S. No. 107, under question 3(a).
6. A High Court Judge, S. No. 262, under question 6.
7. S. No. 393.
8. S. No. 262.
873. Other categories.-
Apart from the categories of persons to be exempted on the ground of age, sex, mental state or pregnancy, not many other categories have been proposed. One such is that of persons killing others due to necessity, duress and mistake1. Another suggestion is that a person, who has a family dependent upon him, or whose earlier record of life has been commendable, or whose intelligence quotient is below average, should be exempted2.
Amongst the other exemptions suggested are old persons above the age of 603 and "very old" persons4.
It has been stated by a State Government5 and by a High Court Judge in the same State6 that the Criminal Rules of Practice of that State provide for recommendation to the State Government for commutation of death sentence in the case of women convicted of infanticide, and that statutory provision for such cases may be made in the Indian Penal Code.
1. An Inspector-General of Police, S. No. 131.
2. S. No. 117.
3. A District and Sessions Judge, S. No. 390.
4. A High Court Judge, S. No. 397.
5. S. No. 261.
6. S. No. 262.