16. As is well known, the subject of capital punishment is a difficult and controversial subject, long and hotly debated. It has evoked strong views. In that state of affairs if the Legislature decides to retain capital punishment for murder it will be difficult for this Court in the absence of objective evidence regarding its unreasonableness to question the wisdom and propriety of the legislature in retaining it. A Bill for the abolition of capital punishment was introduced in the Lok Sabha in 1956 but the same was rejected on November 23, 1956. Similarly a resolution for the abolition of capital punishment was introduced in the Rajya Sabha in 1958 but the same was withdrawn after debate. Later in 1961 a similar resolution was moved in the Rajya Sabha but the same was negatived in 1962. A resolution for its abolition was discussed in the Lok Sabha but the same was withdrawn after discussion. All this goes to show that the representatives of the people do not welcome the prospect of abolishing capital punishment. In this state of affairs, we are not prepared to conclude that capital punishment as such is either unreasonable or not in the public interest.
17. The next contention of Mr. Garg was that by providing in Section 302-IPC that one found guilty thereunder is liable to be punished either with death sentence or imprisonment for life, the legislature has abdicated its essential function in not providing by legislative standards in what cases the Judge should sentence the accused to death and in what cases he should sentence him only to life imprisonment. It may be noted here that prior to the Amending Act 26 of 1955. Section 367 (5) of the Criminal Procedure Code read as follows:
“If the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death the Court shall in its judgment state the reason why sentence of death was not passed.”
By the amendment this provision is deleted and as the Code at present stands punishment for murder is one of the two – namely death or imprisonment for life. Neither Section 302 IPC nor any other provision in the Criminal Procedure Code says in what cases the capital punishment is to be imposed and in what others the lesser punishment. It is therefore, argued by Mr. Garg that the Legislature has left this awful duty to the Judge or Judges concerned without laying down any standards to guide them in their decision. In fact he says the Legislature has abdicated its legislative function and this delegation of its power to the Judges is vitiated by the vice of excessive delegation. We think there is no merit in this submission. In this connection we have to take note of the policy of the law with regard to crimes and their punishments. The position in England is stated by Halsbury in Laws of England. Third Edition, Volume 10 at page 486. The relevant portion of para 888 is as follows:
“Decision of Court as to punishment. In all crimes except those for which the sentence of death must be pronounced a very wide discretion in the matter of fixing the degree of punishment is allowed to the Judge who tries the case.
The policy of the law is, as regards most crimes, to fix a maximum penalty, which is intended only for the worst cases, and to leave to the discretion of the judge the determination of the extent to which in a particular case the punishment awarded should approach to or recede from the maximum limit. The exercise of this discretion is a matter of prudence and not of law, but an appeal lies by the leave of the Court of Criminal Appeal against any sentence not fixed by law, and if leave is given, the sentence can be altered by that Court. Minimum penalties have in some instances been prescribed by the enactment creating the offence.”
Indian Case vs British Case
18. The position in India is practically the same. The exception made in English Law with regard to the sentence of death does not hold good in India. The policy of our criminal law as regards all crimes, including the crime of murder, is to fix a maximum penalty – the same being intended for the worst cases, leaving a very wide discretion in the matter of punishment to the Judge. In England, murder and treason were offences for which the death sentence was mandatory. If after trial the accused was found guilty by the Jury, neither the Jury nor the Judge had any discretion in the matter of sentence. The Judge had to sentence the accused to death. The sentence may be reprieved by the Home Secretary after taking all the circumstances of the case and other matters, into consideration. But that was no part of the judicial process.
19. Absence of any discretion with regard to the sentence raised strong criticism in England because it was recognised as was done in many other countries that death penalty was not the only appropriate punishment for murder. A Royal Commission was thereupon appointed in 1949 to consider and report whether liability under the Criminal Law in Great Britain to suffer capital punishment for murder should be limited or modified and if so to what extent and by what means. In its report published in 1953 the Commission found it impossible to improve the position either by re-defining murder or by dividing murder into degrees. In para 535 of the Report it pointed out that “the general liability under the existing law to suffer capital punishment for murder cannot be satisfactorily limited by such means. (i e. re-defining murder or dividing murder into degrees) because no legal definition can cover all the multifarious considerations, relating to the offender as well as to his crime, which ought to be taken into account in deciding whether the supreme penalty should be exacted in each individual case.” The Commission considered various alternatives – one of them being a provision on the lines of Section 302-IPC which was pressed with great force by Sir John Beaumont – a former Chief Justice of the Bombay High Court, and later a Privy Councillor. He pressed on the Commission the advisability of leaving it to the Judge whether the death sentence should be imposed or the lesser sentence adding further that this procedure had worked quite well in India for generations and there was no reluctance on the part of the Judges to assume the responsibility to pass the death sentence. The Judges in England, however unanimously refused to accept such a responsibility. The question then arose whether the responsibility for the death sentence may be given to the Jury as was done in some of the States in America. The Royal Commission fell in with this suggestion and expressed itself as follows (See para 595 of the Report).
“It is not questioned that the liability to suffer capital punishment under the existing law is rigorous to excess. We cannot but regard it as a reproach to our criminal law that this excessive rigour should be tolerated merely because it is corrected by executive action. The law itself should mitigate it. We have been forced to the conclusion that this cannot be done by a redefinition of murder or by dividing murder into degrees. No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder. Discretionary judgment on the facts of each case is the only way in which they can be equitably distinguished. This conclusion is borne out by American experience there the experiment of degrees of murder, introduced long ago, has had to be supplemented by giving to the Courts a discretion that in effect supersedes it. Such a discretion, if it is to be part of the legal process and not an act of executive clemency must be given either to the Judge or to the jury. We find that the Judges in this country, for reasons we respect, would be most reluctant to assume this duty. There remains the method of entrusting it to the jury. We are satisfied that as long as capital punishment is retained this is the only practicable way of correcting the outstanding defects of the existing law.”
20. In India the difficulty encountered by the Commission had been overcome long ago and it is accepted by the public that only the Judges shall decide the sentence. Where an error is committed in the matter of sentence the same is liable to be corrected by appeals and revisions to higher Courts for which appropriate provision was made in the Criminal Procedure Code. The structure of our criminal law which is principally contained in the Indian Penal Code and the Criminal Procedure Code underlines the policy that when the Legislature has defined an offence with sufficient clarity and prescribed the maximum punishment therefor, a wide discretion in the matter of fixing the degree of punishment should be allowed to the Judge. As pointed out by Ratanlal in his Law of Crimes. Twenty-Second Edition page 98.
“The authors of the Code had in many cases not heinous, fixed a minimum as well as a maximum punishment. The Committee were of opinion that, considering the general terms in which offences were defined it would be inexpedient, in most cases, to fix a minimum punishment; and they had accordingly so altered the Code as to leave the minimum punishment for all offences, except those of the gravest nature, to the discretion of the Judge who would have the means in each case of forming an opinion as to the character of the offender and the circumstances whether aggravating or mitigating, under which the offence had been committed. But with respect to some heinous offences – such as offences against the State, murder, attempt to commit murder and the like – they had thought it right to fix a minimum punishment.”
21. In the whole Code there is only one section (Section 303) where death is prescribed as the only punishment for murder by person under sentence of imprisonment for life. There are several other sections in which death sentence could be imposed, but that sentence is not mandatory. Under two sections namely Sec. 302-murder and Section 121-waging war against the Government of India, alternative punishments of death or imprisonment for life are leviable. These are the two sections where the maximum punishment is death and the minimum is imprisonment for life. There are two other sections in the Indian Penal Code where the minimum punishment is prescribed – one is S. 397 which provides that if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years and (2) Section 398 which provides that if at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. As regards the rest of the offences, even those cases where the maximum punishment is the death penalty, a wide discretion to punish is given to the Judge. The reasons are explained by Ratanlal on the page referred to above.
“Circumstances which are properly and expressly recognized by the law as aggravations calling for increased severity of punishment are principally such as consist in the manner in which the offence is perpetrated:whether it be by forcible or fraudulent means, or by aid of accomplices or in the malicious motive by which the offender was actuated or the consequences to the public or to individual sufferers, or the special necessity which exists in particular cases for counteracting the temptation to offend, arising from the degree of expected gratification, or the facility of perpetration peculiar to the case. These considerations naturally include a number of particulars as of time, place, persons and things, varying according to the nature of the case.
Circumstances which are to be considered in alleviation of punishment are:(1) the minority of the offender; (2) the old age of the offender; (3) the condition of the offender e. g., wife, apprentice; (4) the order of a superior military officer; (5) provocation; (6) when offence was committed under a combination of circumstances and influence of motives which are not likely to recur either with respect to the offender or to any other; (7) the State of health and the sex of delinquent. Bentham mentions the following circumstances in mitigation of punishment which should be inflicted:(1) absence of bad intention; (2) provocation; (3) selfpreservation; (4) preservation of some near friends; (5) transgression of the limit of self-defence; (6) submission to the menaces; (7) submission to authority; (8) drunkenness; (9) childhood.”
22. Indeed these are not the only aggravating or mitigating circumstances which should be considered when sentencing an offender. The list is not intendeed to be exhaustive. In fact the Punjab High Court has held that considerable delay in the disposal of a case may be a factor in awarding lesser punishment. See:Municipal Committee v. Baisakhi Ram.
23. The policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. Take, for example, the offence of Criminal breach of trust punishable under Section 409-IPC. The maximum punishment prescribed for the offence is imprisonment for life. The minimum could be as low as one day’s imprisonment and fine. It is obvious that if any standards were to be laid down with regard to several kinds of breaches of trust by the persons referred in that Section, that would be an impossible task. All that could be reasonably done by the Legislature is to tell the Judges that between the maximum and minimum prescribed for an offence, they should, on balancing the aggravating and mitigating circumstances as disclosed in the case, judicially decide what would be the appropriate sentence. Take the other case of the offence of causing hurt. Broadly, that offence is divided into two categories – simple hurt and grievous hurt. Simple hurt is again sub-divided – simple hurt caused by a lethal weapon is made punishable by a higher maximum sentence – Section 324. Where grievous hurt is caused by a lethal weapon, it is punishable under Section 326 and is a more aggravated form of causing grievous hurt than the one punishable under Section 325. Under Section 326 the maximum punishment is imprisonment for life and the minimum can be one day’s imprisonment and fine. Where a person by a lethal weapon causes a slight fracture of one of the un-important bones of the human body, he would be as much punishable under Section 326-IPC as a person who with a knife scoops out the eyes of his victim. It will be absurd to say that both of them, because they are liable under the same section should be given the same punishment. Here too, any attempt to lay down standards why in one case there should be more punishment and in the other less punishment would be an impossible task. What is thus true with regard to punishment imposed for other offences of the Code is equally true in the case of murder punishable under Section 302-IPC. Two alternate sentences are provided one of which could be described as the maximum and the other minimum. The choice is between these two punishments and as in other cases the discretion is left to the Judge to decide upon the punishment in the same manner as it does in the case of other offences, namely, balancing the aggravating and mitigating circumstances. The framers of the Code attempted to confine the offence of murder within as narrow limits as it was possible for them to do in the circumstances.
All culpable homicides were not made punishable under Section 302-IPC. Culpable homicides were divided broadly into two classes (1) culpable homicide amounting to murder and (2) culpable homicide not amounting to murder. Culpable homicide which fell in the one or the other of the four strictly limited categories described in S. 300-IPC amounted to murder unless it fell in one of the five exceptions mentioned in that section, in which case the offence of murder was reduced to culpable homicide not amounting to murder. Any further refinement of the definition of murder was not practicable and, therefore, not attempted. The recent experience of the Royal Commission referred to above only emphasizes the extreme difficulty. The Commission frankly admitted that it was not possible to prescribe the lesser punishment of imprisonment for life by redefinition of murder or by dividing murder into degrees. It conceded that no formula was possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder. That conclusion forced the Commission to the view that discretionary judgment on the facts of each case is the only way in which they can be equitably distinguished. See:para 595 of the Commission’s Report.
24. American experience is not different. In some of the States murder and rape were punishable with death. But that was not the only punishment. The law gave the Jury discretion in capital sentencing and the question arose recently before the Supreme Court of America in Mcgautha v. California (1971) 28 Law Ed 2d 711 (713) whether in the absence of any standards for deciding when the accused should be sentenced to death or to life imprisonment the provision of law which gives the discretion to the Jury was constitutional. Mr. Justice Harlan delivered the opinion of five Judges and Mr. Justice Black substantially agreed with that opinion in a separate judgment. The majority held that “the infinite variety of cases and facets to each case would make general standards either meaningless ‘boiler plate’ or a statement of the obvious that no Jury would need.” The majority agreed with the view of the Royal Commission already referred to and observed “those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” The Model Judicial Code which was presented to the Court as an attempt towards standardisation was strongly criticised by the majority who pointed out that the Draftsmen of the Model Judicial Code had expressly agreed with the conclusion of the Royal Commission that the factors which determined whether the sentence of death is the appropriate penalty in particular cases are too complex to be expressed within the limits of a simple formula. Some of the circumstances of aggravation and mitigation were mentioned in the Appendix to the Code. But it was pointed out that the Draftsmen of the Code did not restrict themselves to the items referred to in the Appendix but expressly stated that besides the above circumstances the Court was bound to take into consideration “any other facts that the Court deems relevant.” This only meant that any exhaustive enumeration of aggravating or mitigating circumstances is impossible – the admission of which emphasizes the view that standardisation is impossible. Finally the majority observed at page 726:”In light of history, experience and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammelled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.”
25. In India this onerous duty is cast upon Judges and for more than a century the Judges are carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter of sentence is as already pointed out, liable to be corrected by superior Courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguards for the accused.
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