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Report No. 262

Appendix A

To

The Chairman,
Law Commission of India,
New Delhi.

Sir,

With due respect I humbly state that I do not subscribe to the recommendations made by you with regard to the abolition of death sentence. I, therefore, pin down few of my thoughts for retention of death sentence;

1. Death sentence appears in various provisions of Indian Penal Code for example Section 376E, 364A, 302 etc. beside others. These provisions provide for imposition of death sentence or life imprisonment. Whether life or death would be the proper sentence is in the discretion of court which the courts are expected to exercise wisely having regard to the facts of case and the gravity of offence and its severity or barbarity.

2. To say that while deciding the case and imposing death sentence there is error in the judgement or it is discriminatory, to my mind, is very general statement. Moreover, to err is human. Almighty alone is the dispenser of absolute justice. Judges of the highest court do their best, subject of course to the limitation of human fallibility.

But that does not mean that the provision of death penalty should be abolished in all cases irrespective of their gravity and heinousness. Even otherwise by the time case reaches Supreme Court it passes the scrutiny by High Court which confirms death on reference being made by Session Courts.

3. Kidnapping by terrorists for ransom, for creating panic amongst the people and for securing release of their associates and cadres assumed serious dimensions. Menace of kidnapping and abduction for ransom is on increase. Therefore, in its wisdom punishment of death sentence has to be there on the statue book.

4. To say that innate disposition of human minds that control, manage and administer such punishments, thereby making them inevitably arbitrary, is not correct. Can we loose sight of the cases like 'Kasab' and "Afzal Guru'. They posed threat to security, safety and peace of the society. So many innocents lost their lives.

In such cases extreme punishment awarded on the doctrine of 'rarest of the rare' case cannot be called arbitrary or discriminatory. In fact in the report too much emphasis has been given on human right principle of persons subjected to the death penalty, at the same time forgetting the human rights of innocent victims.

5. As already pointed out by me above, possibility of error should not be the reason to abolish death penalty. Supreme Court in Bachan Singh's case expounded the doctrine of "rarest of rare" which principle has With stood the test of time. It has neither failed nor faltered. What other sentence could have been given to "Nithari" . In such cases of heinous crime extreme measures are required by giving them harsh punishment keeping in mind the safety and security of the society.

6. Recently Supreme Court in the case of Vikram Singh@Vicky & Anr. v. Union of India & Ors. decided on 25.08.2015 observed that "In a parliamentary democracy like ours, laws are enacted by parliament or the State Legislature within their respective legislative fields specified under the Constitution. The presumption attached to these laws is that they are meant to cater to the societal demands and meet the challenge of the time, for the legislature is presumed to be supremely wise and aware of such needs and challenges".

Even the Supreme Court of U.S.A. in recent case Ronald Allan Harmelin v. Michigan 501 US 957 based on a conspectus of the decisions, formulated some common principle applicable in situation that required examination of limits of proportionality. The first principle culled out from the decision earlier pronounced by the court was the prescribed punishment for crimes rest with the legislature and not courts and that the courts ought to show deference to the wisdom of the legislature.

7. In Manu Ram v. Union of India (1981) 1 SCC 107 court observed that "on consideration of circumstances mentioned above, the conclusion is inescapable that parliament by enacting Section 433A has rejected the reformative character of punishment, in respect of offences contemplated by it, for the time being in view of the prevailing conditions in our country. It is well settled that the legislature understands the needs and requirements of its people much better than the courts".

Government of India voted against the United Nations General Assembly resolution calling for the moratorium on death penalty. In November 2012, India again upheld its stance on capital punishment by voting against the United Nations General Assembly draft resolution seeking to ban the death penalty, This reflect the legislature understanding of the needs and requirements of its people beside the conditions prevailing in our country.

8. In the case of State of M.P. v. Bala alias Bularam (2005) 8 SCC 1 court said "the punishment prescribed by the penal code reflect the legislative recognition of the social needs, the gravity of the offence concerned, its impact on the society and what the legislature considers as a punishment suitable for the particular offence. It is necessary for the courts to imbibe that legislative wisdom and to respect it."

9. In the case of Vikram Singh (supra) appellant challenged the validity of Section 364A of IPC, while upholding the constitutional validity of Section 364A of IPC court observed that Section 364A came on the statue book initially in the year 1993 not only because kidnapping and abduction for ransom were becoming rampant and the Law Commission had recommended that a separate provision making the same punishable be incorporated but also because activities of terrorist organizations had acquired menacing dimensions that called for an effective legal frame work to prevent such ransom situations and punish these responsible for the same.

10. Court further observed that "the statistics further observed that kidnapping for ransom has become a lucrative and thriving industry all over the country which must be dealt with in the harshest possible manner and an obligation rests on the courts as we. The courts to lend a helping hand in that directions".

11. We must appreciate that when the offence of kidnapping for ransom, abduction and murder take place then such offence has to be treated as heinous crime and contemplating death penalty is not disproportionate. How can "terrorist" be reformed, whose main aim is to destroy the peace of the society, if not the society as such.

12. Supreme court in Vikram Singh's case concluded by saying "The gradual growth of the challenges posed by kidnapping and abductions for ransom, not only by ordinary criminals for monetary gain or as an organized activity for economic gains but by terrorist organizations is what necessitated the incorporation of Section 364A of the IPC and a stringent punishment for those indulging in such activities.

Given the background in which the law was enacted and the concern shown by the Parliament for the safety and security of the citizens and the unity, sovereignty and integrity of the country, the punishment prescribed for those committing any act contrary to Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as call for the same being declared unconstitutional ................... Just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric.

In the ordinary course and in cases which qualify to be called rarest of the rare, death may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of offence. Fact situations where the act which the accused is charged with is proved to be an act of terrorism threatening the very essence of our federal, secular and democratic structure may possible by the only other situations where Courts may consider awarding the extreme penalty".

13. In my earlier note also I had mentioned that recommending blanket abolition of death sentence or moratorium on death penalty in heinous crimes is not an appropriate course particularly keeping in view the circumstances prevailing in our country.

Justice Usha Mehra



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