Report No. 42
3.31. Section 53.-
We now proceed with the consideration of the provisions of chapter 3 section by section.
3.32. Death sentence.-
The question whether the death sentence should be retained in the Code and various cognate matters have been considered in great detail in the previous Law Commission's Report on Capital punishment.1 It is regrettable that although this report was made to the Government more than three years ago, it has not been placed before Parliament or otherwise published for the information of the public. That Commission has recommended that, in the conditions existing at present in India, the death penalty should not be abolished. We agree with this recommendation.
1. 35th Report.
3.33. Minimum age for death sentence to be 18.-
The previous Commission has also fully considered whether the Code should specify the minimum age of the offender who can be sentenced to death. After examining the position under the Children's Acts of various States, it has stated1.-
"We feel that, having regard to the need for uniformity, to the views expressed on the subject, and to the consideration that a person under 18 can be regarded as intellectually immature, there is a fairly strong case for adopting the age of 18 as the minimum for death sentence. We are aware that cases will occasionally arise where a person under 18 is found guilty of a reprehensible killing, or, conversely, a person above 18 is found to be immature and not deserving of the highest punishment. A line has, however, to be drawn somewhere and we think that 18 can be adopted without undue risk.
We, therefore, recommend that a person who is under the age of 18 years at the time of the commission of the offence should not be sentenced to death. A provision to that effect can be conveniently inserted in the Indian Penal Code as section 55B."
1. Ibid., paras. 886, 887.
3.34. New provision recommended.-
We agree with this recommendation.1 There is, however one section, namely section 303, in the Code under which the only sentence which can be passed on conviction is the sentence of death. It would be an extremely rare case where a juvenile under the age of 18, being under sentence of imprisonment for life, committed murder or other capital offence. If ever such a case did occur, there would be a conflict between section 303 which makes the death sentence obligatory and the proposed exception in the case of any juvenile under the age of 18. We consider that the proposed exception should not apply where the offender is convicted under section 303. If at all there are any extenuating circumstances in his favour, the President and the Governor may be trusted to exercise their power of commuting the sentence to one of imprisonment for life. The new provision may accordingly be as follows.-
"The sentence of death shall not be passed on a person convicted of a capital offence if at the time of committing the offence he was under eighteen years of age and death is not the only punishment provided by law for the offence."
1. In this connection, reference may also be invited to the International Covenant on Civil and Political Rights, (1963), Pt. III, Article 6, para. 5, which is as follows:
"5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women."
3.35. Imprisonment for life.-
In a previous Report,1 we considered various aspects of the punishment of life imprisonment and recommended that in view of the prevailing uncertainty on the point it should be expressly provided in the Penal Code that such imprisonment shall be rigorous. At the end of that Report we observed2.-
"Finally, while our present proposal is limited to the immediate problem of resolving the doubts that have arisen as regards the nature of this punishment, we have noted for future consideration the question whether it is at all necessary even in regard to capital offences and whether it should be retained without modification in regard to the numerous other offences now so punishable. It strikes one as extremely anomalous that an offence like sedition should be punishable with either imprisonment for life or with rigorous or simple imprisonment which may extend to three years, but not more. These questions will have to be considered when the Indian Penal Code is taken up for revision."
1. 39th Report (Imprisonment for life under the Indian Penal Code).
2. 39th Report (Imprisonment for life under the Indian Penal Code), para. 29.
3.36. Should life sentence be replaced by specified long term.-
Accordingly, one of the questions put forward in our questionnaire on the Code was whether imprisonment for life as the punishment prescribed for some offences should be replaced by imprisonment for a specified long term, e.g. 20 years. Various comments and suggestions were received indicating no clear preponderance of opinion one way or the other. While there were a considerable number who thought life imprisonment should remain and desired no change, there were others who considered this punishment wrong in principle. Some desired substitution of a fixed period on the ground that the existing practice in almost all States of granting remissions on a liberal scale reduced the period actually undergone by a lifer to something like 8 or 10 years.
In their view, there should be a minimum period below which life imprisonment should not be reduced by the Government. Others favoured substitution of a fixed long period but saw nothing wrong in remissions being granted liberally by the Government at their discretion and were averse to any minimum period being fixed by law or otherwise. Opinions also differed as to what term of imprisonment would be suitable instead of imprisonment for life. Some other interesting suggestions were that the relevant sections should be made more elastic by providing for life imprisonment or a specified long term, in the alternative, that instead of life sentences in one continuous stretch, there should be imprisonment for broken periods, and that a long term of imprisonment followed by a period of surveillance would be a good substitute for a life sentence.
3.37. Existing practice in States.-
It is of course true to say that a sentence of imprisonment for life is never carried out literally, though it may occasionally happen that a prisoner so sentenced dies in jail before his case comes up before the State Government for release. The actual period spent in jail by life sentence prisoners naturally varies a good deal and may be as short as 7 or 8 years. While the prison rules and practice obtaining in the States are not absolutely uniform, a life sentence is generally equated to imprisonment for 20 years and remission of different types are given in accordance with rules.
The case of every life sentence prisoner is taken up with the State Government on his completing 10 to 14 years inclusive of remissions earned by him by then and the State Government decides whether he should be released, unconditionally or subject to conditions. A favourable decision is implemented by the State Government formally remitting the unexpired portion of the prisoner's sentence under section 401 of the Criminal Procedure Code and ordering his release. Since remission of sentence is entirely within the discretion of the Government under the Constitution as well as the Criminal Procedure Code, the court's power to detain dangerous criminals for longer periods remains unaffected.
3.38. Imprisonment for life to be retained.-
It is possible that, owing to the increasingly generous application of the remission system in recent years to life sentence prisoners, the sentence has lost some of its deterrent effect, and criminals are not frightened by the possibility of a sentence of imprisonment for life to anything like the extent to which they were in the past by a sentence of transportation for life. We have, however, come to the conclusion that the punishment of imprisonment for life should be retained and should not be replaced by imprisonment for a specified long term like 20 years.
3.39. Restriction of Government's powers to order premature release.-
In this connection we noticed that, when the death penalty for murder was abolished in England in 1965, the court sentencing any person convicted of murder to imprisonment for life was given the power to declare the period which it recommended to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State ordered the release of that person on licence.1
The same act further provided that no person convicted of murder should be released by the Secretary of State on licence unless the Secretary of State had prior to such release, consulted the Lord Chief Justice of England together with the trial judge, if available.2 We considered whether it would be desirable to have some such provisions in the Indian Penal Code or the Criminal Procedure, but felt that, in view of Articles 72 and 161 of the Constitution which confer full powers on the President and the Governors to grant remissions, provisions in the law fettering those powers might not be valid or proper.3
1. Section 1(2), Murder (Abolition of Death Penalty) Act, 1965,
2. Section 2, ibid.
3. See also 41st Report, Vol. 1, para. 29.4.
3.40. Reduction in number of offences punishable with life imprisonment.-
Besides the four capital offences for which the Penal Code prescribes imprisonment for life as an alternative to the death sentence, there are more than 40 offences for which the punishment may be either imprisonment for life or imprisonment for a term which may extend to 14, 10 or 7 years. In one instance (sedition under section 124A), while the offender may be punished with imprisonment for life, he may not be sentenced to more than 3 years' imprisonment. We have, after a careful scrutiny of these sections, come to the conclusion that the life sentence is only necessary in 16 of them. In the other sections, the life sentence can be safely omitted, the maximum term of imprisonment provided therein being suitably increased.