Report No. 262

C. Previous Law Commission Reports

(i) The 35th Report of the Law Commission

2.3.1 The Law Commission released its 35th Report on "Capital Punishment" in 1967, recommending that the death penalty be retained. After considering the arguments of the abolitionists and retentionists, the state of the death penalty in various countries and objectives of capital punishment, the Commission 19 recommended that the death penalty be retained in India, saying:

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 punishment.58

58. Law Commission of India, 35th Report, 1967, at para 293, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
(last viewed on 26.08.2015).

2.3.2 The Commission added that the deterrent object of capital punishment was its "most important object", saying it constituted "its strongest justification".59 The Commission also commented on the discretion courts had in terms of imposing the death penalty or life imprisonment, finding that "the vesting of such discretion is necessary and the provisions conferring such discretion are working satisfactorily".60

It also said that "in the present state of the country," India could not risk an experiment with abolition that would put the lives of citizens in danger.61 The Commission also observed "that persons who have no sufficient financial means or who for some other reason cannot fight the cause to the last, suffer, and that the law proves to be unjust to them, is an argument which concerns the subject of legal aid rather than the substantive penal law."62

59. Law Commission of India, 35th Report, 1967, at para 295, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
(last viewed on 26.08.2015).

60. Law Commission of India, 35th Report, 1967, at para 580, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
(last viewed on 26.08.2015).

61. Law Commission of India, 35th Report, 1967, at para 265, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
(last viewed on 26.08.2015).

62. Law Commission of India, 35th Report, 1967, at para 265, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
(last viewed on 26.08.2015).

2.3.3 Considering if a court should give reasons when it made its decision on whether or not to impose the death penalty, the Commission recommended that the law should be changed to "require the court to state its reasons whenever it avoids either of the two sentences in a capital case".63 The 41st Report of the Commission on revising and re-enacting the Code of Criminal Procedure 1898 reiterated this recommendation.64 recommended

63. Law Commission of India, 35th Report, 1967, at para 8, (Summary of Main Conclusions and Recommendations), available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
(last viewed on 26.08.2015).

64. Law Commission of India, 41st Report, 1969, at para 26.9, available at
http://lawcommissionofindia.nic.in/1-50/Report41.pdf
(last viewed on 26.08.2015).

2.3.4 In the 35th Report, the Commission also made recommendations on some ancillary issues. For example, it considered the question of a right to appeal to the Supreme Court in cases where the death sentence was either confirmed or imposed by a High Court, finding that this was not necessary.65 The 187th Report of the Commission made a different recommendation.66

65. Law Commission of India, 35th Report, 1967, at para 982, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
(last viewed on 26.08.2015).

66. Law Commission of India, 187th Report, 2003, at page 2- "Further, at present, there is no statutory right of appeal to the Supreme Court in cases where High Court confirms the death sentence passed by a Session Judge or where the High Court enhances the sentence passed by the Session Judge and awards sentence of death.

The Commission, on a consideration of the various responses and views, recommends for providing a statutory right of appeal against the judgement of the High Court confirming or awarding the death sentence" available at
http://lawcommissionofindia.nic.in/reports/187th%20report.pdf
(last viewed on 26.08.2015)

2.3.5 Similarly, while the 35th Report found the breadth of judicial discretion in capital sentencing acceptable, later Supreme Court cases have noted why this is problematic. See Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230; Swamy Shraddhananda v. State of Karnataka, (2008) 13 SCC 767; Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498; Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641. The 35th Report also retaining of section 303 of the Indian Penal Code, which provides for mandatory death penalty. 67 However, the Supreme Court held this to be unconstitutional in 1987 in Mithu v. State of Punjab (1983) 2 SCC 277.