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Report No. 262

Appendix B

Dr. Sanjay Singh

Government of India
Ministry of Law & Justice
Legislative Department

Dated the 28th August, 20 15

Hon'ble Chairman Sir,

May kindly refer to the draft report relating to "Death Penalty" that requires further deliberations. In this regard, it may be mentioned that death penalty has been a mode of punishment since time immemorial and the arguments for and against have not changed much over the years. With the march of civilization, the modes of death punishment have witnessed significant changes on humanitarian grounds.

2. In India, much has been debated on the issue as to whether to retain or abolish death sentence. In our country, the Indian Penal Code (45 of 1860) contains a number of provisions where punishment of death penalty exists, namely, section 121 (Waging war, etc. against the Government of India), section 132 (Abetment of mutiny by a member of the armed forces), section 194 (False evidence leading to conviction of innocent person and his execution), section 302 (Murder), section 303 (Murder by a person under sentence of imprisonment for life), section 305 (Abetment of suicide of child or insane person), section 307(Attempt to murder by life 'convict, if hurt is caused), section 364A (Kidnapping far ransom, etc.) and section 396 (Dacoity with murder).

Certain other laws like the Narcotic Drugs and Psychotropic Substances Act, 1985 (section 31 A), the Unlawful Activities Prevention Act, 1967 (sections 10 and 16), the Navy Act, 1957, etc, also contain provisions for awarding death sentence.

3. The subject of capital punishment attracted the attention of the United Nations towards the end of 1957, when the Third Committee of the Twelfth U.N. General Assembly opened discussion on Article 6 of the draft Covenant on Civil and Political Rights, and adopted the same with modifications. In 1979, India acceded to the International Covenant on Civil and Political Rights (ICCPR). Article 6(2) of the ICCPR states that "In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes."

4. International laws and standards pertaining to the death penalty are clear on this issue and state that death penalty can only be, imposed after exacting legal standards. Safeguard 5 of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted by the UN Economic arid Social Council in 1984 (ECOSOC Resolution 50/1984), states that "Capital punishment may only be carried out pursuant to a find judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings."

5. Further precision is provided in Safeguard 1 of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted by the UN Economic and Social Council in 1984, which states that "In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences."

6. The Law Commission of India examined the issue in-depth and submitted its 35th Report concluding that "The suggestion that death penalty may be abolished as an experiment (so that it can be re-introduced after abolition) is an argument to which we have given our thoughtful attention; but we have to take note of certain possibilities. Between abolition and re-introduction may intervene an era of violenc.- we do not say that this is a certain consequenc.- but it is possibility which cannot be ignored.

Irreparable harm would then have been done not only to the victims of such violence, but to the general cake of security of the society. Once the forces of lawless-ness are let loose re-introduction of capital punishment may not have the desired effect of restoring law and order immediately. Further, Parliament may not be sitting all the time and the interval that might elapse before the law is again actually amended would prove disastrous. On a consideration of all the issues involved, we are of the opinion that capital punishment should be retained in the present state of the country."

7. In 1973, the Supreme Court upheld the constitutionality of the death penalty for the first time in the case of Jagmohan Singh v. State of U.P. (AIR 1973 SC 947). In the same year, the Code of Criminal Procedure, 1973 (1 of 1974) was enacted. The Code required judges to note special reasons when imposing death sentences and required a mandatory pre-sentencing hearing to be held in the trial court. The requirement of such a hearing was obvious, as it would assist the judge in concluding whether the facts indicated any special reasons for imposing death penalty.

8. In 1980, the Supreme Court again upheld the constitutionality of the death penalty in the landmark case of Bachan Singh v. Sate of Punjab (AIR 1980 SC 898). It was observed therein that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

9. In 1991, the Constitution Bench of the Supreme Court once again upheld the constitutionality of the death penalty in Smt. Shashi Nhyar v. Union of India and others (AIR 1992 SC 395). The Court, citing earlier rulings on the issue and arguing that the law and order situation in the country had worsened and now was, therefore, not an opportune time to abolish the death penalty, held that the method of execution of death penalty in India being scientific and least painful mode under the medical jurisprudence, is not violative of article 21 of the Constitution.

10. The capital punishment acts as a deterrent. If death sentence is abolished, the fear that comes in the way of people committing heinous crimes will be removed, which would result in more brutal crimes. All sentences are awarded for the security and protection of society and peaceful living of the people. Whoever, committing a pre-meditated heinous crime in an extremely diabolical manner, should not be allowed to go with life imprisonment or a lesser punishment on humanitarian grounds, as they do not deserve for the same.

11. However, in view of the UN, resolution calling for moratorium on death penalty, as adopted by the Third Committee of the United Nations General Assembly, and as adopted by various European nations, though India has voted against the said Resolution, at this juncture, as a reformative measure, it may be appropriate to frame guidelines on par with the various rulings of the Hon'ble Supreme Court, as to what would constitutes the "rarest of rare case", which warrants death penalty under the Indian law.

12. In view of the position explained above, it would be just and appropriate to get the matter examined further as to what would constitute the "rarest of rare case" for award of death penalty in case of conviction of offences punishable with death sentence. In view of above, the report may not recommend something which has the effect of preventing the State from making any law in the interest of the sovereignty and integrity of India.

In other words, the interest of the State is of paramount importance and any recommendation made in this regard may be considered as imposition of restriction on the powers of the Stake necessary to protect the interest of the country.

13. The Commission may, if considered appropriate, include the above views in its report on Death Penalty.

With highest regards,

Yours sincerely,
(Dr. Sanjay Singh)

Hon'ble Mr. Justice A.P. Shah,
Law Commission of India,
New Delhi.

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