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Report No. 202

3.5 The Indian Scenario

3.5.1 In India, the deliberated penal penalty can be imposed only within the ambits of Sections. 121 (Waging war against the State), 132 (abetting mutiny actually committed), 194 (giving or fabricating false evidence, upon which an innocent person suffers death), 302 (murder), 305 (abetment of suicide of a minor or insane, or intoxicated person), 307 (attempt to murder by a life convict), and 396 (dacoity accompanied with murder) of the Indian Penal Code.

Further, cases of constructive liability leading to death penalty may arise under Sections 34 and 109-111 also. Besides the Penal code, there are many other laws like Explosive Substances Act, 1908; Narcotics Drugs and Psychotropic Substances Act, 1985; Prevention of Terrorism Act, 2002; Terrorist and Disruptive Activities (Prevention) Act, 1987 (since repealed); etc. which provide for imposition of capital punishment.

3.5.2 Hon'ble Supreme Court has ruled that death penalty per se isn't unconstitutional, although some of the modes of carrying out the same may be otherwise. The Hon'ble Supreme Court held that delay in carrying out execution of capital sentence entitles its commutation to life imprisonment, but later overruled its decision. Peculiarly, the deterrent value of this penal punishment has been recognized in several cases by various jurists. (See Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947; Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916; Bachan Singh v. State of Punjab, AIR 1980 SC 898; Machhi Singh v. State of Punjab, AIR 1983 SC 957)

3.5.3 There are two conflicting views which can be broadly classified into two schools of thoughts, namely, the Retentionists (Pro-Capital Sentencing) and the Abolitionists (Anti-Capital Sentencing), Functioning under the Retentionists' perspective, Utilitarian school of thought advocates that capital punishment prevents the convict from replicating the offence and acts as a deterrent for future offenders.

Correspondingly, Retributive theorists lay down that as a foundational matter of justice, crime deserves to be reprimanded, and that should be equivalent to the injury caused. More recently, the exponents of capital punishment are stressing that the death penalty discourages criminal conduct on the part of those who are aware of the existence and horrors of this mode of treating criminals.

3.5.4 Some of the famous Abolitionists like Montesquieu, Voltaire, Beccaria, etc. have argued that since the penalty is irrevocable, it should not be resorted to.

3.5.5 Most anti-death penalty organizations, most notably Amnesty International, base their stance on human rights arguments. The anti-death penalty scholars claim that the society seeks an escapist attitude by taking away the life of an individual. However, in India, adequate safeguards shield penalizing powers, in this regard.

Even if a High Court awards death sentence to the accused, on appeal against the Trial Court's acquittal of the same, the right of appeal to the Apex court is automatic. Additionally, a condemned prisoner retains the right to get his sentence commuted, suspended, remitted, reprieved, respited or pardoned by the Governor of the State concerned, followed by the President of India as provided in the Constitution of India.

3.5.6 Perhaps, recent trends of public sentiment against capital punishment represent a broader realization that correction is more important to society than punishment.

3.5.7 It may be pertinent to note that this Commission has dealt in details with diverse facets of capital punishment, in its 35th Report, September, 1967. The answer to the query under consideration herein may be found in principle in that report although the question was not specifically dealt with reference to dowry death. In para 77 of that Report, it was observed that at first sight, the capital offences (listed above in para 69) may not show any common element; but a close analysis reveals that there is a thread linking all these offences, namely, the principle that the sanctity of human life must be protected.

It is the will or willful exposure of life to peril that seems to constitute the basis for a provision for the sentence of death. The Commission applied this principle while considering the question whether any other offence under the Indian Penal Code or any other law should be made capital offence. The following offences were considered by the Commission in this regard, namely, adulteration of food and drugs, offences against Army, arson, espionage, kidnapping and abduction, homicide by negligence, rape, sabotage, smuggling and treason (Paras 462 to 540 at pp.156-179).

The Commission did not recommend that any other offences under the Indian Penal Code or any other law should be punishable with death (Para 3(b) of Summary of Main Conclusions and Recommendation at p.356). While reaching these conclusions, the Commission reiterated that the cardinal principle of willful disregard of human life, which is the foundation of the sentence of death for the existing capital offences would have to be borne in mind and the question examined whether the existing law was not adequate.

If it was found to be inadequate, then before embarking on an amendment, it would have to be considered whether a precise formula could be evolved which, while conforming to this principle, could define clearly the scope of the acts of commission that were proposed to be made capital (see Para 476 at p.160). Thus, the Commission, inter alia, observed that where an act of adulteration or arson causes death and the conditions of Section 300 on murder, particularly as to mens rea, are satisfied the case could be dealt with under Section 300/302, IPC and death sentence could be awarded under the law.

If not so, then making such an act as a capital offence would not be in symmetry with the scheme of the Indian Penal Code (See paras 463 - 466 at pp.156-157). Applying the same analogy to cases of dowry related deaths, if the conditions of murder in Section 300 are satisfied, the offender can certainly be awarded death sentence under Section 302 as per the norms laid down by the apex court in various cases for the award of death sentence, the most sacrosanct norm being the dictum of 'rarest of rare cases'. If not, then making dowry related death as a capital offence may not be in symmetry with the schemes of the Indian Penal Code.

Proposal to amend Section 304-B of the Indian Penal Code Back

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