Report No. 35
Topic Number 44
Exemption on the ground of young age
874. Exemption on the ground of young age.-
Whether a person, who is below a particular age, should be exempted by statute from the penalty of death is a question which requires detailed investigation, in view of the abundant material available on the subject. The question has fallen to be decided by the Courts more than once, and-though it is not easy to reconcile all the decisions-the position seems to be, that young age is a factor which is taken into account by the Court along with other factors, when considering whether the sentence of death should be awarded1.
1. See Analysis of case-law, cases number 70 (age and provocation), 60 (Boy of 12), 66B (youth by itself not an extenuating circumstance), 56 (youth by itself is not sufficient for leniency), 81 (young age and backward class and belief in witch-craft), 52 (Girl of less than 17 acting under influence of husband, etc.), 47 (Woman of 20 and of weak intellect murdering her daughter of eleven days owing to poverty), 38 (Boy of 17, probably a tool in the hands of others), 33 (Girl of 18, strangling her illegitimate child), 99 (Court refused to take age-22 years into account), 49 (age and provocation), 83 (youth of the accused by itself taken into consideration), 49A (age not taken into account, because the convicts were terrorists and not shown to be dominated by others), 72 (youth by itself not a ground), 73 (age of 22 years by itself not a ground for lesser sentence), 46 (Boy of 17 acting under the influence of father), 45 (young age and provocation), 42 (sentence of death on a young man probably under 18 years maintained because of cold-blooded and pre-meditated murder), 41 (sentence of transportation on a lad of 18 enhanced-for deliberate murder for greed).
875. There are decisions which take the view that young age by itself is an extenuating circumstance. But in most of those decisions, the age was tender,-say, not more than 16 years1. In a Calcutta case2, a girl of sixteen years was charged with the deliberate killing of her husband by poisoning, and was sentenced to transportation in view of her age.
1. See Analysis of case-law, case number 99, decisions cited in the footnote thereto. Also see cases No. 60 and 66.
2. Jasha Ram, (1907) 11 CWN 904, cited in Ratan Lal Law of Crimes, (1961), p. 771.
876. On the other hand, there are decisions that youth is not a consideration for giving the lesser sentence at all1.
1. See Remudu (in re:), ILR 1943 Mad 148: AIR 1943 Mad 69 (Mockett and Happell. JJ.).
877. The majority of the decisions would seem, however, to take age into account along with other circumstances.
878. In this position of the case-law, a statutory provision-whatever may be the content of that provision-would be useful as clarifying the position, it may be noted that the number of children or young persons involved in cases of homicide is not small1, and the matter is not, therefore, purely academic.
1. See figures regarding number of juvenile offenders involved in homicide, etc., given separately.
879. There are provisions in the Children's Acts of several States1, prohibiting the awarding of a sentence of death in the case of persons under a certain age. The ages laid down by those provisions vary. The insertion of a provision, applicable to the whole of India, would serve the purpose of bringing uniformity also. Further, the replies received to our Questionnaire2 show that a vast number of persons are in favour of such an exemption.
1. A summary of the provisions in Children's Acts is given elsewhere.
2. Replies to question 9 are summarised in paras. 824-873.
880. It may be noted that, in England, a person under the age of 18 cannot be sentenced to death, but has to be detained during Her Majesty's pleasure1.
1. See section 53, Children and Young Persons Act, 1933, as amended in 1948; and Archbold (1962), para. 684.
881. Similar provisions are contained in the laws of many other countries also1. Under the English provisions, it is the age at the time of the commission of the offence that is taken into account. Section 53(1) of the Children and Persons Act, 1933 as amended by section 16, Criminal Justice Act, 1948 and by section 9(3) of the Homicide Act, 1957, provides as follows:-
"(1)-Sentence of death shall not be pronounced on or recorded against a Young person convicted of an offence, who appears to the Court to have been under the age of eighteen years at the time of offence being committed. Nor shall any such person be sentenced to imprisonment for life under section 9 of the Homicide Act, 1957....".
1. Comparative material on the subject is given separately.
882. Whether the age of 18 should be enhanced to 21 was a question into which the Royal Commission went in great detail1.
The Select Committee on Capital punishment, 1930, had recommended that the age should be raised to 21 on the ground that that was the age when full civil responsibility was assumed. Before the Royal Commission of 1953, conflicting views were expressed about the raising of the age limit. Most of the medical witnesses were in favour of raising the age, because, in their opinion, persons under the age of 21 should not be regarded as fully mature and the brain is not fully developed until after that age.
The Society of Labour Lawyers stressed the argument that, if a person was so immature and irresponsible that he could not vote or own a legal estate in land or settle an action without leave of the Court, he should not be subjected to the extreme penalty. The younger the offender, the more chance there was of reform and rehabilitation. Witnesses opposing the proposal, however, thought that beyond the age of 18, the matter should be left to the discretion of the Crown in exercising the prerogative of mercy.
Many members of the Royal Commission were of the view that "of all proposals that could be made for reducing the number of cases in which the capital sentence is executed, there was none that had a stronger and clearer claim to support than the proposal to raise the age-limit."
However, some of the members were not in favour of this recommendation. They thought that the Commission could not overlook the fact that grave increase in violent crimes since the beginning of the war had not yet passed its peak, so far as persons between 17 and 21 were concerned; and that public opinion would not favour the removal of the restraining influence of the death sentence on such persons. Ultimately, the Commission recommended2, by a majority3 of 6 to 5, that the statutory age-limit below which a person may not be sentenced to death should be raised to 21.
1. R.C. Report, pp. 65 to 72, paras. 188-209.
2. R.C. Report, p. 68, para. 195, and summary, p. 275, item (12).
For reasoning, see R.C. Report, paras. 196-206.
3. Majority-Sir Ernest Gowers, Mrs. Cameron, Mr. Macdonald, Mr. Mann, Sir Alexander Maxwel and Dr. Slater.
Minority-Mr. Fox-Andrews, Dame Florence Hancock, Sir Willium Jones, Professor Montgomery and Mr. Radzinowicz.
883. It would be interesting to trace the history of the provision in the English Act1. The Childrens' Act, 1903, provided that a person, under 16 years of age at the time of conviction, should not be sentenced to death but should be sentenced to be detained during His Majesty's pleasure. The Childrens' and Young Persons' Act, 1933, section 53, re-enacted this provision in substance, with one change of 16 years replaced by the age of 18 at the time of conviction.
Section 16 of the Criminal Justice Act, 1948, extended the scope of this provision to persons under 18 at the time when the offence was committed. Section 9(3) of the Homicide Act, 1957, amended the provision in the 1933 Act, the important change made being that a person under the age of 18 years was not only not to be sentenced to death but he was also not to be sentenced to imprisonment for life. This change was necessary because, otherwise, under section 9(1) of the 1957 Act, whenever a court is precluded from passing a sentence of death "the sentence shall be one of imprisonment for life".
It is stated that no person under 18 years of age has in fact been executed in England since 18872. It would seem, however, that before that there had been such cases. For example, in 1801, a boy aged 13 was publicly hanged for breaking into a house and stealing a spoon; and in 1808, a girl aged 7 was hanged at Lynn, and in 1831, a boy of 9 was hanged at Chelmsford for having set fire to a house3.
1. R.C. Report, p. 64, para. 183.
2. R.C. Report, p. 64, para. 183.
3. See Christoph Capital Punishment and British Politics, (1962), p. 15.
884. We may also refer here to the provision adopted in Canada on the subject. The Canadian Committee1 noticed that the invariable practice in Canada had been to commute the sentence of death of all persons under 18, and that, since 1945, the sentence had rarely been executed against a person 20 years and under. The Committee balanced the consideration that youth must always be a mitigating factor against the fact that some of the most callous crimes are committed by young offenders, showing a total disrespect for life or property.
After taking note of the discussion in the report of the United Kingdom Royal Commission, the Canadian Committee concluded that it would be proper to amend the law to provide that the death penalty should not apply to a person of the age of eighteen years or less at the time of commission of the offence. The Committee also recommended strongly that, except in extraordinary cases, the present practice of commuting most death sentences passed on persons under 21 should be continued.
1. Canadian Report, p. 18, para. 76.
885. The recommendation for amendment of the law has been carried out by amendment of the Criminal Code of Canada, made in 19611. The relevant section now provides as follows:-
"(3) Notwithstanding sub-clause 1, a person who appears to the court to have been under the age of 18 years at the time he committed a capital murder, shall not be sentenced to death upon conviction therefor but shall be sentenced to imprisonment for life.".
1. Section 206(3), Criminal Code (Canada).
886. Recommendation regarding age.-
We feel that having regard to the need for uniformity to the view expressed on the subject, and to the consideration that a person under 13 can be regarded as intellectually immature, there is a fairly strong case for adopting the age of 18 as the minimum for death sentence. We are aware that cases will occasionally arise where a person under 18 is found guilty of a reprehensible killing, or, conversely, a person above 18 is found to be immature and not deserving of the highest punishment. A line has, however, to be drawn somewhere, and we think that 18 can be adopted without undue risk.
We, therefore, recommend that a person, who is under the age of 18 years at the time of the commission of the offence, should not be sentenced to death. A provision to that effect can be conveniently inserted in the Indian Penal Code, as section 55B.