- (1.) Death and if not life, death or life, life and if not death, is the swinging progression of the criminal jurisprudence in India as far as capital punishment is concerned. The Code of Criminal Procedure, 1898, under Section 367(5) reads: "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." This provision making death the rule was omitted by Act 26 of 1955.
(2.) There have been extensive discussions and studies on abolition of capital punishment during the first decade of our Constitution and the Parliament itself, at one stage had desired to have the views of the Law Commission of India and, accordingly, the Commission submitted a detailed report, Report No. 35 on 19.12.1967. A reference to the introduction to the 35th Report of the Law Commission will be relevant for our discussion. To quote: "A resolution was moved in the Lok Sabha on 21st April, 1962, for the abolition of Capital Punishment. In the course of the debate on the resolution, suggestions were made that a commission or committee should be appointed to go into the question. However, ultimately, a copy of the discussion that had taken place in the House was forwarded to the Law Commission that was, at that time, seized of the question of examining the Code of Criminal Procedure and the Indian Penal Code. The Law Commission considered it desirable to take up the subject separately from the revision of the general criminal law of the country. This was so, because of the importance of the subject, the voluminous nature of materials that were to be considered, and the large number of questions of detail that were to be examined. The matter had been repeatedly debated in Parliament in some form or other, and the Commission, therefore, thought its consideration to be somewhat urgent. In other countries also, the subject had been evidently treated as one for separate and full-fledged study."
(3.) It appears that Parliament finally decided to retain capital punishment in the Indian Penal Code. However, when the new Code of Criminal Procedure was enacted in the year 1973 (hereinafter referred to as 'the Cr.PC'), a paradigm shift was introduced, making it mandatory for Courts to state special reasons for awarding death sentence, under Section 354(3), which reads as follows: "When the conviction is for an offence punishable with death, or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.";