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Report No. 262

Appendix C

P. K. Malhotra
Ex officio Member,
Law Commission of India

Government of India
Ministry of Law & Justice
Department of Legal Affairs

August 31,2015

D.O. No. 31/08/201-LS

Hon'ble Chairman,

This is in furtherance to the discussions I had on the evening of 27th August, 2015 on the draft report on 'death penalty'. The final version was received by me on the evening of 29th August, 2015.

As I strongly feel that the time is not ripe in our country for abolition of the death penalty, I am enclosing a note containing my views on the subject with the request that the same may be appended to the report of the Commission.

With kind regards,

Yours sincerely,
(P.K. Malhotra)

Encl.: As above.

Justice Shri A.P. Shah,
Law Commission of India,
H.T. Building,
New Delhi

I have the benefit of going through the draft report on the "Death penalty" which was made available to me on 23rd August, 2015. The meeting notice appended to the Report says that that Report will be discussed in the Commission on 26th and 27th August, 2015. I could not attend the meeting of the Commission on 26th August, 2015 due to my pre-occupation in other time-bound assignments in the Ministry. I was told that there is no meeting of Law Commission on 27th August, 2015. However, I got an opportunity to discuss the draft Report with the Hon'ble Chairman of the Law Commission of India on 27th.

With due respect, I say that I am unable to agree with the recommendation that the death penalty be immediately abolished in all crimes other than terror. However, I agree with the view that abolition of death penalty is an eventual goal. I am of the considered view that the time is not ripe for its abolition in our country.

Although, I wanted to give my detailed views on the issue, it may not be possible to do so as the term of the present Law Commission is coming to an end on 31th August, 2015. Final conclusions and recommendations were made available on 29th August, 2015 in the evening and the Commission desires to submit its Report before 31th August, 2015. There is hardly any time to deal with all the points raised in the report. I will give brief reasons in support of my opinion on the subject.

There are certain implications of a crime and any person who commits a crime should think about its consequences before taking any wrong step. If the implications keep getting waived off, a time will come when law will cease to exist. A convict is to be punished so that it becomes an example for rest of humanity and deters perverted minds from committing such crimes. Therefore, if a crime, as heinous as taking another person's life is committed, the punishment has to be severe. There may be instances where life sentence may not serve the desired purpose.

There are instances where convicts serving a life sentence are granted parole and soon return to their old ways, harming the society. While there cannot be two opinions that rights of the accused are to be respected, it is the victims and the society whose rights should get precedence over the rights of the accused. Thinking of rights of accused person committing heinous crime at the cost of violation of rights of victims and safety of society will amount to misplaced sympathy with the accused.

Former American President Shri Geroge W. Bush has mentioned in one of his Presidential debates that the reason to support the death penalty is that it saves other people life. Sir James F. Steffen, an eminent Jurist has said that no other punishment deters men so effectively from committing crimes as the punishment of death. According to him, this is one of those propositions which are difficult to prove simply because they are in themselves more obvious than any proof can make them. In any secondary punishment, however, terrible, there is hope. But death is death, its territories cannot be described more forcefully.

The Parliament which reflects the will of the people passed law with death penalty for certain offences against women as late as in 2013. Recently Government has introduced anti Hijacking Bill in the Parliament wherein it has proposed death penalty relating to certain offences of hijacking. Interestingly, the law is being amended based on Beijing Protocol dealing with anti-hijacking law. Even the Parliamentary Standing Committee, in its Report on the Anti Hijacking Bill, has observed that a comprehensive and strong anti hijacking law is need of the hour.

Referring to the provisions of the Bill which prescribes punishment in the event of death of a hostage or a security personnel, the Committee observed that in case of armed intervention, death of personnel may also occur either due to cross fire or throwing of explosive or crashing of aircraft on ground or water. The Committee felt that in case of any such event, the maximum penalty should be imposed on the offender, which results in death of any person as a direct consequence of the offence of hijacking.

Therefore, it suggested further amendment to the proposed Bill to make provision for punishment of death where such offence results in the death of any person including hostage or security personnel as a direct consequence of the offence of hijacking. The will of the Parliament shows that looking into the prevalent situation in the country, the Indian society has not matured for total abolition of death penalty.

The 35th Report of the Law Commission on Capital Punishment specifically stated that based on the past analysis of the existing socio-economic cultural structure (including education level and crime rates) and the absence of any empirical research to the contrary, the death penalty should be retained in the present state of the country.

The appropriate course for us would have been to analyze the existing socio-economic cultural structure and conduct empirical research to see whether the environment as prevalent in 1967 when the 35th Report of the Law Commission gave its report has changed and if it has changed whether it is for better or the worse?

Section 364A of the Indian Penal Code was incorporated in 1993 because of the increasing incidence of kidnapping and abduction for ransom. Shortly thereafter this provision had to be amended because India acceded to the International Convention Against the Taking of Hostages which was adopted by the General Assembly of the United Nations in the background of Iranian hostage crisis.

Since India had decided to accede to the said Convention, Section 364A of the Indian Penal Code was amended widening its scope covering situations where the offence is committed with a view to compelling foreign State or international inter-governmental organization or to abstain from doing any Act or to pay ransom. The validity of this provision was upheld by the Supreme Court.

It was observed by the Apex Court in the case of Vikram Singh v. Uol (DoJ 21.8.2015) that the punishment must be proportionate to the offence is recognized as a fundamental principle of criminal jurisprudence around the world. According to the Apex Court, 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. While upholding the Constitutionality of 364A of the IPC, the court held as under:-

"We find that the need to bring in Section 364A of the IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom, This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgement. While those recommendations were pending with the Government, the specter of terrorism started raising its head threatening not only the security and safety of the citizens but the very sovereignty and integrity of the country, calling for adequate measures to curb what has the potential of destabilizing any country.

With terrorism assuming international dimensions, the need to further amend the law arose, resulting in the amendment to Section 364A, in the year 1994. 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 to call for the same being declared unconstitutional.

Judicial discretion available to the Courts to choose one of the two sentences prescribed for those falling foul of Section 364A will doubtless be exercised by the Courts along judicially recognized lines and death sentences awarded only in the rarest of rare cases. But 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 (emphasis supplied).

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 the 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 possibly be the only other situations where Courts may consider awarding the extreme penalty.

But short of death in such extreme and rarest of rare cases, imprisonment for life for a proved case of kidnapping or abduction will not qualify for being described as barbaric or inhuman so as to infringe the right to life guaranteed under Article 21 of the Constitution"

I am of the view that in spite of economic development, improvement in the education levels, there is increase in the crime rates and overall cultural deterioration. I am of the view that threat of terrorism is much more as on today than it was in 1967 when the Law Commission gave its 35th Report on capital punishment.

Cases of kidnapping and abduction for ransom are on the increase for monetary gain or as an organized activity for economic gains. Safety and security of the citizens and unity, sovereignty and integrity of the country are of paramount important. It is perhaps for these reasons that the Parliament in its wisdom, in many laws passed in the recent past has provided for death penalty instead of restraining itself to life imprisonment or lesser punishment.

It is incorrect to say that prescription of death penalty is indulging in revenge killing or primitive or barbaric. When a death penalty is awarded following due process of law, there are proper checks and balances. This is sufficiently in-built in the legal system. When the death penalty is imposed by the trial court, it is subject to confirmation by the High Court where the accused person gets opportunity to present his defence.

The accused person gets another opportunity by way of Appeal before the Supreme Court. Decisions/Judgements with regard to death penalty are never confirmed by a non-speaking order. Going by the prevalent practice, the accused person generally prefer a review petition and than a curative petition before the Apex Court. It will thus be seen that after conviction by the trial court, accused person gets as many as four opportunities before the higher Judicial Forum arguing his case against the death penalty.

If the apex judiciary in its wisdom does not find merit in reversing the verdict of death penalty, such case will obviously falls in the rarest of rare category as per the principles which have been discussed in various cases and discussed in the Report of this Commission. The remedy with the accused does not end here. He gets an opportunity to file mercy petition before President and also Governor of the State.

It cannot be said that all these authorities, working at the apex level and discharging constitutional function, are oblivious of the rights enjoyed by the accused person. If all such authorities come to conclusion that the accused person must be penalized with capital punishment, it can, by no stretch of imagination be called 'revenge killing' by the State.

It is incorrect to say that judicial discretion provided by the legislature is unguided or unbridled. The Supreme Court itself, while exercising this discretion in Bachan Singh's case (1980) require a mandatory pre-sentence hearing stage in cases where the death penalty might be given. The 'rarest of rare' classification evolved in Bachan Singh's case was intended to restrict the case of death penalty.

In Bariyar case (2009), the court further came out with a solution to the problem of arbitrariness. The Judges have to keep in mind and consider the possibility of reformation of the convict. Unless the prosecution is able to establish that the convict is beyond reform, the courts cannot, as a matter of fact, award the death penalty.

The Parliament in its wisdom has prescribed death penalty only in heinous crimes. The need of the hour is to retain it but to exercise power of awarding death penalty in rarest of rare cases. We have a vibrant judiciary which is respected world over. We should have faith in the wisdom of our judges that they will exercise this power only in deserving cases for which law is well laid down in various judgements discussed in this Report.

For the reasons discussed in the main Report while I agree that abolition of the death penalty is an eventual goal, I am of the considered view that the time is not yet ripe in our country to abolish it at this juncture.

(P.K. Malhotra)
Ex officio Member,
Law Commission of India

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