Report No. 262

B. Approach of the 35th Report of Law Commission

4.2.1 In recommending that the death penalty be retained, the 35th Report of the Law Commission opined that the following purposes were served by the death penalty:

(a) Deterrence- The 35th Report stated that deterrence is the most important object not only of capital punishment, but of punishment in general. Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498.

(b) Retribution- Retribution was also seen as an important justification for capital punishment by the 35th Report. It was stated that retribution should not be understood as an "eye for an eye," but in its refined form as public denunciation of crime.251

(c) Incapacitation- The 35th Report stated that there are a category of individuals who are "cruel and wicked," and are not capable of reform. Citing Sir James Fitzjames Stephen, the Report said that "[t]o allow such persons to live would be like leaving wolves alive in a civilized country."252 It further stated that if there is a danger that such a person might re-offend, it might be reasonable to terminate his life.253

251 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India, at para 297.

252 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India, at para 300.

253 Law Commission of India, 35th Report, 1967, Ministry of Law, Government of India, at para 301.

4.2.2 A major reason stated in the 35th Report for the retention of capital punishment was the unique condition of India, and that in light of circumstances of society then prevalent, it would not be prudent to abolish the death penalty.254

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

4.2.3 Each of the justifications stated by the 35th Report are dealt with in detail below.