proposed by Vedchetan Patil, President Hamlet to Globe alongwith Ali Zaidi and Navneeta Dash.

CHAPTER I

INTRODUCTION

1.1  Man is by nature a fighting animal hence to think of a crimeless society is a myth. Truly speaking, there is no society without the problem of crime and criminals. The concept of crime is essentially concerned with the social order. It is known that man’s interests are best protected as a member of the community. Everyone owes certain duties to his fellow-men and at the same time has certain rights and privileges which he expects others to ensure for him. This sense of mutual respect and trust for the right of others regulates the conduct of the members of the society inter se. Although most people believe in ‘live and let-live’ policy, yet there are a few who for some reason or the other, deviate from this normal behavioural pattern and associate themselves with anti-social elements. Such conducts which are prohibited by the existing law at a given time and place are known as wrongful acts or crimes whereas those which are permissible under the law are treated as lawful. The wrongdoer is punished for his guilt under the law of the land.

1.2  Enrico Ferri, the noted Italian criminologist, once observed that most of the progressive countries today are engaged in safeguarding the interests of their people by adopting a criminal policy which can best protect the society from crime and criminals. Obviously, the success in eliminating crimes from the society which is otherwise known as Social Defence, largely depends on the efficacy of criminal law administered in a particular country. That is the reason why past few decades have witnessed revolutionary changes in criminological thinking and frequent shifting of criminal policies.

1.3   Modern criminologists are engaged in working out a common penal programme which could be uniformly acceptable to all countries of the world. The ultimate object is to minimize the incidence of crime by an effective administration of criminal justice through agencies such as the court, police, prison, reformatories and other modern penal institution

1.4  Ever since the dawn of human civilization crime has been a baffling problem. There is hardly any society which is not beset with the problem of crime. Commenting on this aspect of crime problem, Emile Durkheim is his treatise ‘crime as a normal phenomenon’ says “a society composed of persons with angelic qualities would not be free from violations of the norms of that society. In fact, crime is a constant phenomenon changing with the social transformation. He argues that crime is a necessary feature of every society as it is a fundamental condition of social organization. Different groups have different and often incompatible interests in the society which give rise to conflicts which eventually result in the incidence of crime.1

1.5  In India anciently, the genesis of criminal jurisprudence can be traced to the Smrtis but came into existence particularly from the time of ‘Manu’. The king protected his subjects and the subjects in return owed him allegiance and paid him revenue. The king admistered justice himself, and, if busy, the matter was entrusted to a Judge. If a criminal was fined, the fine went to the King’s treasury, and was not given as compensation to the injured party.2

1.6  Manusmriti divides crimes in to 18 types (Buhler 1984; Chakraborti 1996). They are (1)   non-payment of debts, (2) deposit and pledge, (3) sale without ownership, (4) concerns among partners, and (5) resumption of gifts (6) Non-payment of wages, (7) non-performance of agreements, (8) rescission of sale and purchase, (9) disputes between the owner (of cattle) and his servants, (10) disputes regarding boundaries, (11)  assault and (12) defamation, (13) theft, (14) robbery and violence, (15) adultery, (16)  Duties of man and wife, (17) partition (of inheritance),  (18) gambling and betting.3

 

 

CHAPTER II

DESIRABILITY AND INADEQUACY OF THE EXISTING PENAL LAWS IN THE PRESENT SCENARIO

 

2.1  The  Indian  Penal  Code,  formulating  the  substantive  law  of  crimes  in  India  was enacted in October, 1860, but brought into force fifteen months later on the 1st of January, 1862. It has not gone through any major drastic change since its inception.

2.2  Legislation beyond unreasonable doubt, plays an extremely important role in changing the socio-cultural mindset of the people of a country and the existing social milieu. The Report of the Joint Committee of Parliament quoted the observations of Jawaharlal Nehru to indicate the role of legislation in dealing with a social evil as under:

“Legislation cannot be itself normally solve deep rooted social problems. One has to approach them in other ways too, but legislation is necessary and essential, so that it may give that push and have those educative factors as well as the legal sanctions behind it which help opinion to be given a certain shape.”

But one problem that concerns all law-making/law-reforming agencies is the delays that occur before any suggested reform of the law actually takes place, Victims’ of crime lobby groups make the observation that, when reform of the criminal law is required, governments often act only when there is a political benefit to be gained.

2.3  Certain existing penal provisions of the Indian Penal Code have become archaic, obsolete and hence, need to be repealed or amended or substituted in order to meet the ever-changing demands of today’s society. The following are the factors taken into account while recommending certain changes to the existing Indian Penal Code –

(a)   Changing social/moral values- The values of societies change over time. This places pressure on the law to change and adapt over time. What is acceptable at one time may be considered unacceptable at another time. Similarly, the push for tougher sentencing in law reform may satisfy the retributive aspects of punishment but harsher penalties are not statistically shown to reduce crime rates.

(b)  Changing Composition of the Society- Our country is culturally diverse and socially progressive. Indians are, on the whole, tolerant and patient. However, with the recent rise in global terrorism suspicions are fears have risen. These fears have led to the passing of new anti-terrorism laws that undermine the values that have been the foundation of our democracy. Thus, in seeking to preserve social values, some aspects of the values held dear have been lost.

(c)  New Concepts of Justice- As social values change, so does our concept of justice. Certain laws have placed pressure on other jurisdictions to reform law relating to the certain other fields and professions. Sentencing laws are continually subject to law reform scrutiny. Similarly, several forms of punishment which were common earlier been questioned and criticized by legal experts.

(d)  Inefficiency/Failure of Existing Law- When laws fail then they must be reformed, or revised by amendment. Occasionally, the government also discusses a law reform only when it is forced by an incident and there is pressure due to it.

(e)  International Law- When International law is reformed this can lead to changes within the domestic legal regime of a country. This is particularly true when having signed/ratified a Convention or Treaty at the UN, India passes a new domestic legislation in order to effectuate it.

(f)  New Technology- When technology is in advance of the law then it pressurizes the law to reform. For example, till decades ago, the concept of euthanasia was novel. But with the advent of new medico-technology and chemicals, a lethal injection may be administered to terminate the life of a person, something which was inconceivable at the time of 1860, when the IPC was drafted and enacted. Thus technology is a very important factor when it comes to criminal law reform. Keeping in view these abovementioned factors, we have made our recommendations in this Report wherever we found the exising provisions to be inadequate to meet the present demands of this ever-changing society.

 

 

CHAPTER III

SCOPE OF INQUIRY AND REFORM

 

3.1  Law reform is the process by which the law is modified and shaped over time to better reflect the social values that society feels are important. The law cannot stand still. A major function of the legal system is to respond to changing values and concerns within society, resolve issues as they develop, overcome problems that occur in legal cases or events and respond to scientific or technological developments. Law reform is essential if the law is to remain relevant to a changing society. Law reform tends to be a gradual process, with widespread community consultation and involvement. But is has been observed that law reform is too slow particularly in the cases with respect to advances in technology that impact on crime and criminal behaviour.

3.2  The 91st Report of the Law Commission of India explains in golden words, the conditions which lawmakers should ideally consider before framing penal laws:

“Coming to substantive criminal law, if a deficiency is found to exist in such law, it can be filled up only by creating a new offence. Before doing so, of course, the wise law maker is expected to take into account a number of aspects, including the nuances of ethics, the ever-fluctuating winds of public opinion, the demands of law enforcement and practical realities.”

3.3  The question that is to be examined and decided in this Report is whether the penal provisions listed under Chapter XVI i.e. ‘Of offences relating to the human body’ of the Indian Penal Code, 1860 are adequate and efficient to curb the prevalent rates of crimes committed which come under the purview of this Chapter.

3.4  The Report will also discuss at length whether the punishments prescribed by the draftsmen of the Code are stringent enough to curb the prevalent rates of crimes committed under this Chapter. The punishment prescribed for certain aggravated forms of offences need to be increased further and for certain other offencesThe Report would restrict itself only to Chapter XVI i.e. from Sections 299 to 377 of the Indian Penal Code, 1860.

 

 

CHAPTER IV

PREVIOUS REPORTS OF THE LAW COMMISSION OF INDIA ON THE SUBJECT

4.1  In June 1971, the Law Commission of India submitted its 42nd Report for revision of the Indian Penal Code. Accordingly, the Government had introduced a Bill, namely, the Indian Penal Code (Amendment) Bill, 1978 in the Rajya Sabha. The Bill was passed in the by the Rajya Sabha. However, before passing the Bill the then Lok Sabha was dissolved and the said Bill could not find a place in the book of statues.

4.2 Since then much water has flown and a number of problems and issues have come to light, which gave rise to the comprehensive revision of the Indian Penal Code, 1860. Next, in August 1997 came the 156th Report of the Commission which again suggested numerous reforms in the I.P.C. Even that did not prove to be very effective.

4.3  The Law Commission has time and again tried to update the laws to meet the demands of the modern evolving society. Some reports of the Commission have exclusively focused on certain chapters and some others are entirely on only section. For example, in its 84th and 172nd Reports, the Commission reviewed laws regarding rape and allied offences. In its 91st and 202nd Reports, it had discussed the social evil of dowry death. In its 210th Report, the Commission had recommended the humanization and decriminalization of the attempt to commit suicide. In several other reports the Commission has recommended some radical changes in the Indian Evidence Act and the Indian Code of Criminal Procedure which have been enacted as legislations by the Parliament of India.

4.4   Nevertheless, despite of so many consistent recommendations the reforms suggested by the Law commission of India have not been very successful in decreasing the alarming rates of crime all over the nation. We still find the lacunae in certain provisions in the Chapter XVI titled ‘Of offences affecting the Human Body’. Hence, this report is presented to the Law Ministry to be presented before the Parliament of India, for its kind perusal.

 

 

CHAPTER V

APPLICABILITY OF THE DOCTRINE OF ‘RAREST OF RARE’ FOR CAPITAL PUNISHMENT

“A crime is an act deemed by Law to be harmful for society as a whole although its immediate victim may be an individual”.4

 

5.1   Punishment for a crime:

5.1.1  A crime is a social wrong which may be committed against an individual but affects the interest of society at large. Thus to protect the society against the criminals the concept of punishment was evolved. Punishment as defined in Oxford Dictionary means “to make an offender suffer for an offence”. The main purpose behind every punishment is to secure a safe and inhabitable society free from fear and evils. It aims at a threefold objective:

Firstly, to teach a lesson to the criminal for the offence committed so that he may not commit the crime in future.

Secondly, to convey the message to the potential offenders that the law do not and would never spare any offender and treat all criminals in the same manner.

Thirdly, to give a chance for reformation to those offenders who have committed the crime unintentionally or due to some unavoidable and justifiable grounds.

5.1.2  But, the court should not confuse between the correctional approach and soft sentencing for serious offences. So, where the offences affecting the human body are concerned the punishment must be inflicted in a strict sense in order to deter the potential criminals from committing further crimes and at the same time satisfying the immense desire of justice of the victims. Particularly in cases of murder- which is the gravest possible crime against human body- the need of stringent action in form of severe punishment is highly expected. As the Supreme Court observed that “the court which ignores the grave injury to the society ill serves social justice. Soft sentencing justice is gross injustice where many innocents are the potential victims”.5 In the words of Lord Macaulay, “to the great majority of mankind nothing is so dear as life.”6

 

5.2    Application of the ‘Doctrine of Rarest of Rare’ in certain cases:

5.2.1  Under the present Indian Laws the punishment for murder is prescribed under Section 302 which states as follows:

“Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.”

5.2.2  But, in case where the court pronounces death sentence they have to mention special reasons while awarding such sentence which are again in conformity with the self propounded theory of rarest of rare which is highly debatable.

5.2.3  Section 354(3) of the Code Of Criminal Procedure lays down that “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 judgement shall state the reason for the sentence awarded and in the case of sentence of death, the special reason for such sentence.”

5.2.4     Such special reason might be:

  • Professional or hardened criminal or
  • Committed in a brutal manner or
  • Committed on a helpless child or woman.

5.2.5  It has been held by the Supreme Court that in a recent case that in the imposition of death sentence no rigid formula or standard could be fixed. Only a broader guideline consistent with legislative policy indicated by legislature in Section 354(3) CrPC alone shall be considered for invoking the extreme penalty of death sentence.7

5.2.6  It thus seems that normal sentence for murder is no longer a sentence of death but imprisonment for life and only for special reasons to be recorded for in the judgement a sentence of death can be awarded in ‘rarest of rare cases’.8

5.2.7  The determination of rarest of rare case and the award thereafter should be solely based on the discretion of the judge acting judiciously and not arbitrarily. But, while awarding death sentence, what is judicious for a judge believing in deterrent theory could be at the same time, arbitrary according to one inclining towards reformative theory.

5.2.8  Also, the above theory of ‘rarest of rare cases’ being not based on any firm or sound legally definable ground has resulted in various chaotic and confusing decisions. Often, death sentence is awarded just on the basis of degree of brutality involved in the offence9 and in some cases even when the act is brutal the offender is spared just because he is not an imminent danger for the society as per the court’s view10. This stand is often criticised as the court considers not the offence which has already been committed (irrespective of being grave and brutal) but the prospective behaviour of the offender which might not be a danger for the society as per their observations.

 

5.3    Conflicting Application of The Doctrine:

5.3.1  Though punishment is the discretion of the court, yet it must be exercised judicially and where circumstances for a deterrent punishment it ought to be awarded in an appropriate case.11

5.3.2  The court laid down that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolic trickery accompanied by brutal dealing with the cadaver, death sentence is proper.12 Death sentence is the proper punishment for committing a brutal murder with deliberate intention.13

5.3.3  But a contrasting decision was delivered in Mohammad Chaman v. State NCT of Delhi14, the offender kidnapped and raped a child of one and a half years. This brutal act caused severe liver injuries which later proved fatal for the child. The Apex court testing the case on the principles laid down in Bachan Singh case 15 held that “we are persuaded that the case can be appropriately called as one of the rarest of rare cases deserving death sentence. We find it difficult to hold that the appellant is such a dangerous person that to spare his life will endanger the community.” The death sentence was therefore reduced to life imprisonment. The court gave more weightage to mitigating circumstances on aggravating circumstances despite of the fact that aggravating circumstances were very grave.

5.3.4   Similarly, in Sheikh Abdul Hamid v. State of Madhya Pradesh16, the appellants brutally murdered a family and not even spared a child. The motive behind the murders was to misappropriate the property of the deceased. The session’s court pronounced the death sentence which was later confirmed by the high court.

5.3.5  But, the apex court substituted the death sentence with life imprisonment just on the grounds that the prosecution was failed to prove that it was a cold blooded murder and it was not shown that how murder has taken place. Despite of the facts being brutal, grotesque and diabolic along with the mala-fide motive the application of rarest of rare was discarded.

5.3.6  Further, in Maghar Singh v. State of Punjab17 the Supreme Court observed that “for pre-planned cold blooded murder, death sentence is proper.” Whereas in Maniappan v. State of Tamil Nadu18 the court laid down that “every murder is terrific, so the fact that the murder is terrific is no special reason.”

5.3.7  Such a complex view was further found where in one case where a man was murdered and the court held that “death sentence is proper, although the murder may be committed by one of the members of the unlawful assembly; death sentence should be awarded to all the persons.”19

 

5.4   Reformative Approach of the Courts:

5.4.1  Section 302 of the Indian Penal Code leaves the court with the option of choosing between death and life imprisonment. But such option turns out to be a more complex question for the court. On one hand the victim’s family demands for justice and on the other the defence pleads for lesser punishment. Such difficult questions are to be decided by the judges on their own discretion, sometimes even without going to the full merits of the case and considering all the facts.

5.4.2  So, in many cases usually the court tends towards the reformative approach and considering the offender as not an imminent danger to the society. The reformists believe that the offenders should be treated like patients who have fallen prey to certain socio-economic factors and have committed such crimes. The theory aims at the study of the causes and finding the solution to remedying and solving the problem of the patient-cum-offender.

5.4.3  However, it is difficult to gauge as to what extent the punishment should be awarded to the offender to reform him or whether he should be inflicted with harsher punishment which would be proportionate with the crime committed. This was very well enunciated in Meru Ram v. Union of India 20 that “this is a dilemma since the punishment should be just enough to reform the offender and not so harsh and disproportionate to his crime that he become more deviant and ruthless.”

5.4.4  But contrary to this, in many cases the reformative aspect is given more emphasise over the deterrent aspect. In State of Jharkhand vs. Syed Rizwan,21where the accused and her husband killed her parents, grandmother and brother and their motive being misappropriation of property. The charge of murder was proved beyond doubt the probability of reform was found in the offender and hence death sentence diluted with life imprisonment. So, despite of mala-fide intention, brutal act and the possibility of the case being rarest of rare death sentence was diluted.

5.4.5 The reformative theory suggests that therapeutic measures should be used to bring reformation of the criminal. Imprisonment though theoretically acts as punitive measure. But in reality such confinement has been perceived to be more disastrous. The offenders on their departure from such confinements are more indifferent and hold grudge against the society and its norms. Thus the application of this theory somewhere possesses overlapping application of deterrent theory.

 

5.5   Conclusion:

5.5.1  Our notion is not against the discretion of the judges but against the prevailing unguided standards followed by the courts which result in a completely chaotic situation. The doctrine of rarest of rare should be dissolved and a more practicable and broader guideline should be evolved so as to secure justice and clear the line of ambiguity between the facts of the case and the judicial discretion. There should be a guideline to decide as to which case is the rarest of rare case.

5.5.2  Model Guidelines suggested:

The doctrine of rarest of rare is having two main facets which might result either ways-

  • Since it is based on the discretion of the judges, the Judge is allowed to decide the fate of the offender as per his discretion. So, an orientation towards deterrent theory could prove fatal for the offender.
  • Similarly, if the judge believes in reformative theory even the gravest offence may be settled on life imprisonment.

5.5.3  Keeping the above facets in view, a model guideline is required to be followed before reaching the final conclusion as to whether the offender should be awarded death or life imprisonment.

5.5.4  This guideline may include the following factors:

  • Degree of the offence committed; as to whether the offence has been committed in a brutal, diabolic, grotesque or dastardly manner?
  • Cause(s) behind such offence; as to whether there was any genuine reason for the offender to believe that it was sufficient for him to support the murder committed?
  • Motive of the offence; as to whether there was any fraudulent, diabolic or mala-fide intention?
  • Modus of operandi; as to whether the act was deliberate, pre-planned or conspired?
  • Circumstances of the offender; as to whether he was influenced by any mental or emotional disturbance or was suffering from any form of agony?
  • Age, gender, infirmity, vulnerability and resistance of the victim(s).

5.5.5  The above guideline could be treated as a touchstone where the facts of the case be tested and a discretion-cum-decision can be arrived at while ascertaining the punishment. The possibility of the offender being a perspective danger to the society should not be considered if the act committed by him is brutal, diabolic, grotesque or dastardly in nature.22 The reformative approach should be the last one to ride upon and that too after passing through the above mentioned guideline-cum-tests.

5.5.6  A relative weightage is to be given to the aggravating and mitigating factors depending on the facts and circumstances of the case. There should be some relativity between the nature of the offence and the quantum of sentence. So where the offence is coldblooded and that brutal that it cannot be justified on any ground the consideration of any perspective reform should be completely discarded because expecting reform in such a criminal is something like waiting him to turn out into a more dangerous menace to the society.

5.5.7 Thus, the doctrine of rarest of rare should be more elaborate and a broader view should be evolved which may not be a straight jacket formula to ascertain the death sentence but which can lay down an explicit standard to clear the fog of confusion and ambiguity. After all the goals of justice can be only achieved when the offender gets what he deserve and the desire of the victim’s family is satisfied with the verdict of the court.

5.5.8  Hence we propose following amendment to Section 302 of the Code, which will read as follows:

302. Punishment for murder:

Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. Provided that death punishment shall be awarded only in the following cases :

(a)  Where the act has been committed in a brutal, diabolic, grotesque or dastardly manner, or

(b)  Where the motive behind the offence was to commit any fraud or any offence relating to property, or;

(c)  where the act was deliberate, pre-planned or conspired, or;

(d)  where the victim was a minor or a woman or a senior citizen or a person suffering from any infirmity or vulnerable to any such act, as the case may be.

Explanation : The term ‘Senior Citizen’ shall have the same meaning as defined in “The Maintenance and Welfare of Parents and Senior Citizens Act 2007.”

 

 

CHAPTER VI

A MORE HUMANIZED APPROACH TOWARDS THE OFFENCE OF ATTEMPT TO COMMIT SUICIDE

 

6.1          Meaning of ‘suicide’:

6.1.1     The term ‘suicide’ has its etymological roots in the Latin term ‘suicidium’ (from sui caedere) which literally means “to kill oneself”. Suicide (felo de se) means deliberate termination of one’s own physical existence or self-murder, where a man of age of discretion and compos mentis voluntarily kills himself. It is an act of voluntarily or intentionally taking one’s own life.23

6.1.2  According to the International Association for Suicide Prevention (2007, p. 1), adult suicide deaths account each year “for more deaths than all wars and homicides combined.”

 

6.2  Historical perspective of suicide:

6.2.1  Throughout history, suicide has been both condemned and commended by various societies. Since the Middle Ages, society has used first the canonic and later the criminal law to combat suicide. Suicide was not formally decriminalized until the 18th and 19th centuries in most countries and remained a crime in England and Wales until 1961 and in Ireland until 1993.24 Following the French Revolution of 1789 criminal penalties for attempting to commit suicide were abolished in European countries, England being the last to follow suit in 1961.25

6.2.2  In England, the Suicide Act 1961 abrogated the law laying down that attempt to commit suicide is an offence. Although suicide is no longer an offence in itself, any person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, is guilty of an offence and liable on conviction on indictment to imprisonment for a term which may extend to 14 years.26

 

6.3   Offence of attempt to commit suicide: Present scenario in India:

6.3.1  In India, at present attempt to commit suicide is an offence under S. 309 of the I.P.C which reads as hereunder –

“Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.”

6.3.2  In the case of Maruti Shripati Dubal v. State of Maharashtra27 a police constable who was suffering from mental illness and schizophrenia due to a road accident, attempted to commit suicide outside the office of the Municipal Commissioner by pouring kerosene and trying to light his clothes. He was arrested and proceeded under S. 309. The High Court ruled that the right to live as recognized by Art. 21 of the Constitution includes also a right not to live or not forced to live which in positive terms would mean right to die or end one’s own life. S. 309, I.P.C. was therefore held, ultra vires and violative of Articles 14 and 21 of the Constitution.

6.3.3  The High Court quoted French sociologist Emile Durkheim’s threefold classification of suicides made on the basis of the disturbance in the relationship between society and the individual: (i) Egoistic suicide which results when abnormal individualism weakens society’s control over him; the individual in such cases lacks concern for the community with which he is inadequately involved; (ii) Altruistic suicide which is due to an excessive sense of duty to community; and (iii) Anomic suicide which is due to society’s failure to control and regulate the behaviour of individuals. This classification is not regarded as adequate by many, but gives us the broad causative factors of suicide. It is estimated that about one-third of the people who kill themselves have been found to have been suffering from mental illness. The Court observed that those who make the suicide attempt on account of the mental disorders require psychiatric treatment and not confinement in the prison cells where their condition is bound to worsen leading to further mental derangement. Those on the other hand who make the suicide attempt on account of acute physical ailments, incurable diseases, torture or decrepit physical state induced by old age or disablement need nursing homes and not prisons to prevent them from making the attempts again.

6.3.4  Suicide is a concept which has many facades. An individual may commit suicide for several reasons. The Supreme Court in P. Rathinam Nagabhusan Patnaik v. Union of India28 pointed out that “the causes of origin of suicide are as many and varying inasmuch as some owe origin to sentiments of burden, torture and sadness. Some are caused by loss of employment, reverse of fortune, misery due to illness, family trouble and thwarted love. Sometimes killing is in opposition to society and sometimes in opposition particular persons. This happens when the person committing suicide nurses a feeling of unjust treatment, mal-treatment or cruelty. Therefore, what is needed to take care of suicide-prone persons, are soft words and wise counseling of a psychiatrist and not stony dealing by a jailor followed by harsh treatment meted out by a heartless prosecutor.” However, this has been overruled by a subsequent case i.e. Smt. Gian Kaur v. State of Punjab29 in which it was held that penalizing at attempt to commit suicide is not violative of Art. 21 and thus is constitutionally valid.

6.3.5  Then now in the very recent path breaking judgement delivered in the case of Aruna Ramchandra Shanbaug v. Union of India and Ors.,30 Katju, J. held-

“100.We are of the opinion that although Section 309 Indian Penal Code (attempt to commit suicide) has been held to be constitutionally valid in Gian Kaur’s case (supra), the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment. We therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.”

6.3.6  The Delhi High Court in the case of State v. Sanjay Kumar Bhatia31 has made the following observation:

“A young man has allegedly tried to commit suicide presumably because of over emotionalism. It is ironic that Section 309 I.P.C. still continues to be on our Penal Code. The result is that a young boy driven to such frustration so as to seek one’s own life would have escaped human punishment if he had succeeded but is to be hounded by the police, because attempt has failed. Strange paradox that in the age of votaries of Euthanasia, suicide should be criminally punishable. Instead of the society hanging its head in shame that there should be such social strains that a young man (the hope of tomorrow) should be driven to suicide compounds its inadequacy by treating the boy as a criminal. Instead of sending the young boy to psychiatric clinic it gleefully sends him to mingle with criminals, as if trying its best to see that in future he does fall foul of the punitive sections of the Penal Code. The continuance of Section 309 I.P.C. is an anachronism unworthy of a human society like ours. Medical clinics for such social misfits certainly but police and prisons never. The very idea is revolting. This concept seeks to meet the challenge of social strains of modern urban and competitive economy by ruthless suppression of mere symptoms – this attempt can only result in failure. Need is for humane, civilized and socially oriented outlook and penology. Many penal offences are the offshoots of an unjust society and socially decadent outlook of love between young people being frustrated by false consideration of code, community or social pretensions. No wonder so long as society refuses to face this reality its coercive machinery will invoke the provision like Section 309 I.P.C. which has no justification right to continue remain on the statute book.”

6.3.7      In its 42nd Report submitted in 1971, the Commission recommended, inter alia, repeal of section 309. The Indian Penal Code (Amendment) Bill, 1978, as passed by the Rajya Sabha, accordingly provided for omission of section 309. Unfortunately, before it could be passed by the Lok Sabha, the Lok Sabha was dissolved and the Bill lapsed. The Commission submitted its 156th Report in 1997 after the pronouncement of the judgement in Gian Kaur, recommending retention of section 309.

6.3.8  The Law Commission of India in its 210th Report titled ‘Humanization and Decriminalization of Attempt to Suicide’ has made the following observation about Section 309 of IPC-

“It is felt that attempt to suicide may be regarded more as a manifestation of a diseased condition of mind deserving treatment and care rather than an offence to be visited with punishment. The Supreme Court in Gian Kaur focused on constitutionality of section 309. It did not go into the wisdom of retaining or continuing the same in the statute. In view of the views expressed by the World Health Organization, the International Association for Suicide Prevention, France, decriminalization of attempted suicide by all countries in Europe and North America, the opinion of the Indian Psychiatric Society, and the representations received by the Commission from various persons, the Commission has resolved to recommend to the Government to initiate steps for repeal of the anachronistic law contained in section 309, IPC, which would relieve the distressed of his suffering. It needs mention here that only a handful of countries in the world, like Pakistan, Bangladesh, Malaysia, Singapore and India have persisted with this undesirable law.”32

 

6.4          Reform needed in Section 309:

6.4.1  From the above discussion we deduce that the offence of suicide as has been suggested to be decriminalized and humanized by several judgements of the higher judiciary as well as Law Commission Reports, there should be a more humanized approach to towards a person who has tried to commit suicide.

6.4.2  We do not wish to completely decriminalize the offence of attempt to suicide by effacing it completely from the Code. We have instead the following insertion of words to Section 309 as hereunder:

 

Section 309 -

Attempt to commit suicide -

Whoever attempts to commit suicide and does any act towards the commission of such offence, in order to avoid either interrogation, or raid, or arrest by the police, or the armed forces or any other investigating agency shall be punished with simple imprisonment for a term which may extend to three years or with fine, or with both.

6.4.3  With the insertion of the words “in order to avoid either interrogation, or raid, or arrest by the police, or the armed forces or any other investigating agency,” firstly, we have sought to give protection and sympathy by decriminalizing the offence of attempt to commit suicide, when it is committed by a common man who has lost all his hope and desire to live life and is in depression. For such persons, the offence of suicide or attempt to suicide should be regarded as a crime but a mental disorder they are suffering from which needs love, sympathy and most importantly psychiatric counselling to regain his/her confidence and to be cured.

6.4.4  Secondly, when it comes to a recidivist hardened criminal or terrorist, for example, when such a criminal or terrorist on seeing that he/she will get arrested or interrogated by the police or the armed forces thinks that he/she will be encountered or else will have to give out all confidential information about anti-national activities of his group attempts to commit suicide instead of getting killed in the encounter, then such criminal cannot go scot-free and must be severely punished instead.

6.4.5  Hence, only in the abovementioned circumstance, attempt to commit suicide shall be punished and that too, in a more stringent manner since we have recommended an increase in the quantum of punishment from one to three years.

 

CHAPTER VII

LEGALIZATION OF PASSIVE EUTHANASIA

 

7.1   The concept of ‘Euthanasia’:

7.1.1  Euthanasia is colloquially understood as the intentional killing of a person, for compassionate motives, whether the killing is by a direct action, such as a lethal injection, or by failing to perform an action necessary to maintain life.

7.1.2 The implication of the term euthanasia is itself cloaked in ambiguity. In its earlier form, it was used as an omnibus term to signify a painless death. In its modern context, the term is used as by opponents of ‘mercy killing’ as a deliberate euphemism to reduce the guilt of an act which is a division of murder by injecting the term mercy.33

7.1.3  Etymologically, the term ‘euthanasia’ meaning “good death” has been derived from the Greek words ‘eu’ (well or good) and ‘thanatos’ (death) refers to the practice of ending a life in a manner which relieves pain and suffering. According to the House of Lords Select Committee on Medical Ethics, the precise definition of euthanasia is “a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering.”34

7.1.4 Like other terms borrowed from history, the “euthanasia” has had different meanings depending on usage. The first apparent usage of the term “euthanasia” belongs to the historian Suetonius who described how the Emperor Augustus, “dying quickly and without suffering in the arms of his wife, Livia, experienced the ‘euthanasia’ he had wished for.”35 The word “euthanasia” was first used in a medical context by Francis Bacon in the 17th century, to refer to an easy, painless, happy death, during which it was a “physician’s responsibility to alleviate the ‘physical sufferings’ of the body.” Bacon referred to an “outward euthanasia”- the term “outward” he used to distinguish from a spiritual concept- the euthanasia “which regards the preparation of the soul.”36

7.1.5  The debate whether euthanasia should be legalized or not, has consistently evoked great concern among law experts and social scientists. The protagonists who are in favour of legalization of euthanasia argue that it will ‘enable dignified exist from the misery and misfortune of the deadly diseases.

7.1.6  Euthanasia is categorized in different ways, which include voluntary, non-voluntary, or involuntary and active or passive. So it can be of four types-

(1) active voluntary euthanasia (2) active involuntary euthanasia (3) passive voluntary euthanasia (4) passive involuntary euthanasia. We are going to focus on and deal with both voluntary and involuntary forms of passive euthanasia.

 

7.2  Distinction between ‘Active’ and ‘Passive’ Euthanasia:

7.2.1  Euthanasia is of two types: active and passive. Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma.

7.2.2  The general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained.37 In India active euthanasia is illegal and a crime under section 302 or at least section 304 IPC. Physician assisted suicide is a crime under section 306 IPC (abetment to suicide).38

7.2.3  The difference between “active” and “passive” euthanasia is that in active euthanasia, something is done to end the patient’s life’ while in passive euthanasia, something is not done that would have preserved the patient’s life.39

 

7.3  Social and Medico-Legal Position of Euthanasia in India:

7.3.1  In India there is no specific law concerning euthanasia, though it is much desirable. The need of the same arises when a person is terminally ill and not capable of cure. The sufferings of an already ill person need not be prolonged by forcefully keeping him alive with all the pains and sufferings. We feel that it is definitely a violation of Article 21 of the Constitution of India which provides a right to dignified life.

7.3.2   According to the Chief Executive of Voluntary Health Association of India (VHAI), Alok Mukhopadhaya, euthanasia should be legalized but with strict parameters to avoid its misuse which is very likely in a country with a large number of illiterate populace and rampant unethical medical practice.40

7.3.3  Dr P.K. Dave, Former Director, AIIMS, also supports the legalisation of euthanasia with sufficient safeguards- “If the law revolves around human life, then it has the potent danger of being misused. Therefore, there should be a panel of experts who should work out an option for terminally ill patients whose disease is incurable and they shouldn’t suffer. There should be a proper methodology through which it should be certified that the patient could no longer survive without life support.”41

7.3.4  Many confuse the concept of euthanasia confuse it with the offence of abetment of suicide or attempt to commit suicide under Sections 306 and 309 of I.P.C respectively. In India, not only abetment of suicide is an offence (vide section 306, IPC), but also attempt to commit suicide is an offence (vide section 309, IPC). Attempt to suicide is an offence punishable under section 309 of the Indian Penal Code. Section 309 reads thus:

“Attempt to commit suicide- “Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.”

7.3.5  This is in contrast to many countries such as USA where attempt to suicide is not a crime. Distinguishing euthanasia from suicide, Lodha J. in Naresh Marotrao Sakhre v. Union of India42 observed:

“Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one’s own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing, on the other hand, means and implies the intervention of other human agency to end the life. Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected.

7.3.6  A Division Bench of the Supreme Court in P. Rathinam v.Union of India43 held that the right to live of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life, and therefore, section 309 violates Article 21. This decision was, however, subsequently overruled in Gian Kaur v. State of Punjab (AIR 1996 SC 946) by a Constitution Bench of the Supreme Court, holding that Article 21 cannot be construed to include within it the ‘right to die’ as a part of the fundamental right guaranteed therein, and therefore, it cannot be said that section 309 is violative of Article 21. The Supreme Court stated, after the above quotation from Airdale N.S.H Trust case as follows: (p. 665)

“The desirability of bringing about such a change was considered to be function of the legislature by enacting a suitable law providing therein adequate safeguards to prevent any possible abuse.”

The House of Lords in this case of Airedale NHS Trust v. Bland44 permitted non-voluntary euthanasia in case of patients in a persistent vegetative state.

7.3.7   In the most recent pathbreaking judgment of the Supreme Court, Aruna Ramchandra

 

Shanbaug v. Union of India and Ors.45, Markandey Katju, J. cites a famous poetic verse of Mirza Ghalib-

“Marte hain aarzoo mein marne ki, Maut aati hai par nahin aati”.

 

Justice Katju remarked: 

“2. Euthanasia is one of the most perplexing issues which the courts and legislatures all over the world are facing today. This Court, in this case, is facing the same issue, and we feel like a ship in an uncharted sea, seeking some guidance by the light thrown by the legislations and judicial pronouncements of foreign countries, as well as the submissions of learned counsels before us.”

 

“51. Passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention of causing the patient’s death. For example, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia. Similarly, if a patient is in coma or on a heart lung machine, withdrawing of the machine will ordinarily result in passive euthanasia. Similarly not giving life saving medicines like antibiotics in certain situations may result in passive euthanasia. Denying food to a person in coma or PVS may also amount to passive euthanasia.”

“92. The Constitution Bench of the Indian Supreme Court in Gian Kaur v. State of Punjab, 1996(2) SCC 648 held that both euthanasia and assisted suicide are not lawful in India. That decision overruled the earlier two Judge Bench decision of the Supreme Court in P. Rathinam v. Union of India, 1994(3) SCC 394. The Court held that the right to life under Article 21 of the Constitution does not include the right to die (vide para 33). In Gian Kaur’s case (supra) the Supreme Court approved of the decision of the House of Lords in Airedale’s case (supra), and observed that euthanasia could be made lawful only by legislation.”

“126.There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in this connection. We agree with Mr. Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General that it should never be permitted.”

7.3.8  The Law Commission of India in its 196th Report on Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) in 2006, had recommended that Euthanasia and Assisted Suicide would continue to be unlawful while considered the ‘with-holding of Life- Support Measures’ to patients terminally ill to be ‘lawful’.

 

7.4          Laws regarding Euthanasia in Foreign Countries:

7.4.1  A look at euthanasia statistics compiled by the The Gallup Organization in the United States reveals that 72 percent of the American population is in favor of this practice. While that is the general view in the United States, euthanasia laws in the country differ from one state to another.

7.4.2  Even though the history of euthanasia can be traced by to the Greek and Roman civilizations, only a few countries have successfully legalized this practice in accordance to their common law.

7.4.3  As far as the legal status of euthanasia in various parts of the world is concerned, it differs from one country to another. Euthanasia is considered illegal in all the European countries except for Netherlands, where there are provisions for the same in some circumstances.

7.4.4 On April 10, 2001, the Dutch Parliament approved the “Termination of Life on Request and Assisted Suicide (Review Procedures) Act.”46 It amended sections of the criminal code, specifically stating that the offences of euthanasia and assisted suicide are not punishable if they have been “committed by a physician who has met the requirements of due care” that are described in the act and if they have informed the municipal “autopsist” in accordance with the Burial and Cremation Act.47

7.4.5 In Mexico, active euthanasia is illegal but since 2008 the law allows the terminally ill to refuse medication or further medical treatment to extend life. Although active euthanasia still remains illegal in Norway, but the country has softened its penalties if a caregiver takes the life of someone who is “hopelessly sick” and consents to the act. Although active euthanasia still remains illegal in Norway, but the country has softened its penalties if a caregiver takes the life of someone who is “hopelessly sick” and consents to the act.

7.4.6  “Voluntary Euthanasia” is legal in Belgium, Luxembourg, the Netherlands, Switzerland, and the US states of Oregon and Washington. It is also legal in Albania if three or more family members consent to the decision. Although both forms of euthanasia are illegal in Switzerland, assisted suicide is penalised only if it is carried out “from selfish motives”. It is illegal for anyone to actively contribute to someone’s

death in Ireland. However, it is not illegal to remove life support and other treatment if a person requests for it – in other words, passive euthanasia is legal.

 

7.5  Introduction  of  a  new  section  in  the  Indian  Penal  Code  to  legalise  passive euthanasia for terminally ill patients:

7.5.1  In Gian Kaur’s case (supra) the Supreme Court approved of the decision of the House of Lords in Airedale’s case (supra), and observed that euthanasia could be made lawful only by legislation. So we intend to recommend passive euthanasia to be made lawful by amending the existing provisions of the Indian Penal Code, 1860.

7.5.2  In a path-breaking attempt in January 2009, Kerala’s Law Reforms Commission, headed by former Supreme Court judge V.R. Krishna Iyer, recommended legalising euthanasia (mercy killing) and decriminalising suicide attempt. “Life is sacred, but intense pain with no relief in sight is a torture which negatives the meaning of existence,” the commission, defending euthanasia, said.48

7.5.3  The commission sought an amendment to the Indian Penal Code for the ‘recognition of the act of euthanasia.’ The proposed provision says: “No person shall be guilty of murder or other form of homicide or attempt to commit such offence if the life of the person is extinguished by way of euthanasia.” Referring to the dilemma whether euthanasia is morally and legally justifiable, the commission said it “has no dogmatic view on the matter.49

7.5.4  After the above discussion on the existing statutory provisions in India and other countries about euthanasia and related aspects, and in order to effectuate the decision of the Supreme Court in Aruna Shanbaug’s case, we recommend the insertion of a new section in the Indian Penal Code as hereunder –

Section 309A: Termination of life:

(1)  Nothing in this Code shall render as an offence the termination of the life of a person who is suffering from terminal illness due to any incurable disease or accident and consequently, no longer desires to live; by the withdrawal of life support by a registered medical practitioner/physician with the consent of such person.

(2)  If such person is incompetent to give consent due to terminal illness, written consent of the parents, spouse, and/or other close relatives, or in the absence of any of them, a person or a body of persons acting as a next friend, or the doctor(s) attending the patient must be obtained prior to such termination. The best interest of the patient must be the paramount consideration of the abovementioned relatives/persons while giving consent to such termination.

Explanation- In this section –

(a)  “terminal illness” means “such illness, injury or degeneration of physical or mental condition-

(i)    which is causing extreme pain and suffering to the patient and which, according to reasonable medical opinion, will inevitably cause the untimely death of the patient concerned, or

(ii)   which has caused a persistent and irreversible vegetative condition under which no meaningful existence of life is possible for the patient.50

(b)  “best interest” shall include ethical, social, moral, emotional and other welfare considerations and not just medical interests of the patient.51

7.5.5      The above inserted section shall provide relief and justice to those people who are actually terminally ill or are simply living life in the permanent vegetative state who do not wish to stay alive and prolong their already unbearable and ever-increasing suffering. However, we are of the opinion that the judge while adjudicating such a sensitive matter takes utmost care to look into the real and bona fide interests of the patient and regard it as his paramount consideration.

 

 

 

CHAPTER VIII

DOWRY DEATH, KIDNAPPING AND OTHER ALLIED OFFENCES

 

8.1          Dowry death:

8.1.1  Section 304B presently reads as under –

“Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.”

8.1.2  We recommend the deletion of the words “within seven years of her marriage” in order to enlarge the scope of protection of the Sec. 304B. The time limit of seven years needs to be deleted and thus section 304B will read as:

“Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.”

8.1.3  The reason for effacing the 7 year time limit is to widen the scope or ambit of Section 304 for the purpose of providing justice to the women who are actually victimized under this section. If the husband is greedy for dowry, but aware of the existing legal provisions and the seven-year limit, then there is every possibility of his or his relatives demanding dowry anytime in the eighth or for that matter the tenth year of marriage. In such case, the victim earlier invoke Section 304B since the entire incident failed to occur within seven years of marriage, but now her relatives can.

 

8.2   Kidnapping:

8.2.1  We propose that Section 359 and 360 shall replaced by the following sections:

Section 359- Kidnapping:

Kidnapping is of two kinds: kidnapping for unlawful purposes, and kidnapping from lawful guardianship.

Section 360- Kidnapping for unlawful purposes:

Whoever conveys any person beyond the limits of India or within the territorial limits of India, without the consent of that person, or of some person legally authorised to consent on behalf of the person, for the purpose of engaging such person in any unlawful activity, is said to kidnap that person for unlawful purposes.

Explanation: The term ‘unlawful activity’ shall have its meaning as per the law of India and as per the law of the country to which such person is being taken.

8.2.2     We recommend the insertion of a new section- Section 363A in the I.P.C –

Section 363A. Punishment for kidnapping for unlawful purposes :

(1)  Whoever kidnaps any person unlawful purposes, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

(2)  Whoever kidnaps any person, with the knowledge and/or intention, for the purpose of training such minor or person, as the case may be for the purpose of carrying out any anti-national activity which is prohibited under this Code or any other law for the time being in force, shall be punished with the same imprisonment as that of the offence for which the kidnapping is done.

 

 

CHAPTER IX

REFORMS IN SEXUAL OFFENCES

9.1 Rape: Traditional v. Modern Perspective:

9.1.1 For long in all the civilizations of the world, women being a physically weaker species was dominated by men, even during the periods of social transformation subjecting them to all forms of atrocities whether rape, molestation, slavery or trafficking.

9.1.2 The term ‘rape’ derived from rapio which means ‘sieze’, was therefore always used for the forcible seizure, or the ravishment of a woman without her free consent, ultimately amounting to the violation of her ‘self’. The concept of ‘chastity of women’ was historically etched into the society only to keep women under the dominance of men. Notwithstanding the religious sanction and the personal choice of a woman to consider herself chaste, the society till today, discriminates and often gives differential treatment to the promiscuous female as compared to the male, or for that matter even to a virtuous women woman whose modesty was outraged or whose purity chastity was violated.

9.1.3 Historically the concept of rape originated, not to protect the autonomy of women, but rather, to protect the ‘male interest’ in women, akin to property rights. The evil that the law tried to prevent was the ravishment of virgins, to the detriment of the family pride and honour. The Babylonian laws, the Mosaic laws all bear testimony to this fact. To the contrary the Vedic Civilization characterized the offence from the women’s perspective, making the same as an offence amounting to the ultimate violation of the self.

9.1.4 The  offence  of  rape  was  characterised  under  the  heading Strisangrahanam, an acknowledgement  to  this  fact  is  given by the Katyana Smriti and Brihaspti Smriti wherein the offence was specified and severe penalty was imposed. Also Narada Smriti recognised forceful intercourse causing pregnancy, by a person not being the husband, as one of the aparadhas (crime). However even the Vedic culture was later on influenced by the Western culture giving a social sanction to the secondary status of the women. But with the need and problems of the society, law has to keep pace for better and efficient implication of rule of law.

9.2 Laws relating to rape and allied offences in India:

9.2.1 The Law Commission of India in its Eighty-Fourth Report on “Rape and Allied Offences: Some questions on Substantive Law, Procedure and Evidence” has defined rape as “the ultimate violation of the self. It is a humiliating event in a woman’s life which leads to fear for existence and a sense of powerlessness”. Other scholars have defined rape as an internal assault or a sexual invasion which is characterized by violent taking away of control over the sexual autonomy of a woman. Rape is an act of violence affecting the physical and emotional integrity of the victim.52

9.2.2 Section 354, contemplates on assault or criminal force used against a woman with the intent to outrage her modesty. Also Sections 375 and 376 define and penalize the offence of rape. A perusal of S. 354 clears out that the degree of assault or criminal force has never been taken into consideration by the draftsmen. Hence if the offence or use of criminal force on woman is not rape then it would directly fall under the purview of Sec. 354 of I.P.C eliminating all other possibilities and their likelihood that the whip of law should punish them more seriously.

9.3 Reforms suggested:

9.3.1 To deal with the issue of increasing sexual violences on women and female children, we again recommend like the 156th Report of the Law Commission53 that the offence of sexual assault be added to the existing offence of outraging the modesty of women in Section 354 and the punishment be increased from two years to five years. We propose the following amendment to the Section 354 of I.P.C. -

Section 354- Assault or criminal force to woman with intent to outrage her

modesty:

Whoever assaults or uses criminal force to any woman, intending to outrage her modesty or to commit sexual assault or knowing it to be likely that he will thereby outrage her modesty or commit sexual assault to her, shall be punished with

imprisonment of either description for a term which may extend to five years, or with fine, or with both, depending upon the degree of the use of criminal force and/or assault as the case may be. Expanding the scope of Section 354 in the above manner, would in our view, cover varied forms of sexual violence other than rape on women and female children.54

9.3.2 The lawmakers, in the Indian Penal Code have never contemplated upon the offence of “Attempt to commit rape”. Hence we propose to introduce a new section as follows –

375A. Attempt to commit rape:

Whoever attempts to commit an offence in the nature of ‘rape’ as described in Section 375 of this Code, shall be said to have committed the offence of attempt to rape, for which he shall be punished with imprisonment of either description for a term which may extend upto seven years.

9.3.3 Also considering the changing society and the subsequent need felt and demanded by and large, for the homosexuality laws, we propose the following amendment and hence the explanation to Sec. 377 shall be as follows-

Section 377- Unnatural offences

Whoever voluntarily has carnal intercourse-

(a)  against the consent of, with any man or woman shall be punished with imprisonment of either description for a term which may extend upto seven years, and shall also be liable to fine.

(b)  with any animal shall be punished with the imprisonment for a term which may extend to two years, or fine or both.

Explanation 1- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Explanation 2- Consensual carnal intercourse, between a man and man or between a man and a woman, shall not constitute the offence under this section.

CHAPTER X

PRINCIPLE OF PROPORTIONALITY IN THE

PRESCRIPTION OF PUNISHMENT

10.1 The tenets of penology demands that punishment must be proportionate to the gravity of the offence, pragmatic and adequately deterrent, having due regard to its overall implications from all relevant angles, social, political and economic etc. In criminal law, the principle of proportionality must apply while prescribing liability according to the culpability of the kind of criminal conduct. Once the penal sanction has been established as a condemnatory institution to respond to criminal acts, its sentences ought to reflect the relative reprehension of those acts. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions it remains a strong influence in the determination of sentences.

10.2 Manu in his Manusmriti, the chief authority on Hindu jurisprudence his strongly believed that the “danda” “the scepter”, a symbol of the power and authority was created by God and only fear alone would make the human beings to swerve not from their duties. Manu sturdily has advocated the theory of deterrence as the purpose of punishment and the infliction of punishment should be according to the principles of natural justice. The king having fully considered the time and the place of the offence, the strength and the knowledge of the offender should justly inflict punishment on the offenders. The concept of the consideration of the offence and offender for the purpose of punishment falls in line with the modern principles of justice evolved by Jeremy Bentham and Ceseare Beccaria. Manu felt that only punishment can control all the human beings in the earth and gave utmost importance to punishment. However, he is chary of punishment given without proper judgment and felt that it may destroy the country.55

10.3 Manu cautions the king that if he does not punish the offenders who are worthy of punishment, then, the stronger would roast the weaker, like fish on a spit and a situation  will  arise,  where,  might  may  overrule  the  right.  In  a  country  where punishment is not properly inflicted, the ownership would not remain with any one; the lower ones would (usurp the place of) the higher ones (Buhler 1984). The whole world is kept in order only by punishment, because there is no one in the world who will always act in a just manner. Only the fear of punishment runs the world. Manu also feared that if there was no punishment then all castes (varna) would be corrupted (by intermixture), all barriers would be broken through, and all men would rage (against each other) in consequence of mistakes with respect to punishment.56

10.4 Ordinal Proportionality is thus concerned with preserving a correspondence between relative seriousness of offence and relative severity of sentence. For example, a chain-snatcher cannot be awarded a death sentence. Similarly, it would be ridiculous if a murderer is awarded a three- month imprisonment or a meagre fine. The principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct has been very aptly elaborated by the Supreme Court in the case of

Lehna v. State of Haryana, (2002) 3 SCC 76-

“The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct…Punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence; sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure

10.1 In this Report, we have made our recommendations by strictly keeping the principle of proportionality in mind. On applying this principle, we found that there were certain offences in this Chapter whose punishments were either to severe or too lenient as compared to the gravity of the offence that has been committed by the accused. Therefore, we have accordingly recommended the increase or decrease of the quantum of punishment in those very sections in this Chapter of the Indian Penal Code, 1860.

CHAPTER XI

CONCLUSIONS AND RECOMMENDATIONS

We have now come to the end of our detailed study and analysis of Chapter XVI – ‘Of Offences Affecting the Human Body’ of the Indian Penal Code, 1860. The recommendations which we have made for its improvement are several, ranging from verbal changes designed to remove ambiguities and clarify the underlying ideas, to substantial changes with a view to its simplification and modernization along with some additions to the existing provisions. We have given special attention to the quantum and the nature of punishments prescribed in this Chapter for various offences and suggested modifications to bring them into accord with modern notions of penology.

On the basis of the discussions contained in the preceding chapters, we are of the considered opinion that the following amendments need to be carried out in Chapter XVI – ‘Of Offences Affecting the Human Body’ of the Indian Penal Code, 1860-

11.1      Substitution of the existing section 302 of the IPC of the IPC recommended- The existing section 302 be substituted by the following:

302. Punishment for murder-

Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.

Provided that death punishment shall be awarded only in the following cases:

(a)      Where the act has been committed in a brutal, diabolic, grotesque or dastardly manner, or

(b)      Where the motive behind the offence was to commit any fraud or any offence relating to property, or;

(c)       Where the act was deliberate, pre-planned or conspired, or;

(d)       Where the victim was a minor or a woman or a senior citizen or a person suffering from any infirmity or vulnerable to any such act, as the case may be.

Explanation: The term ‘Senior Citizen’ shall have the same meaning as defined in “The Maintenance and Welfare of Parents and Senior Citizens Act 2007.”

(paragraph 5.5.8, supra)

11.2 Modification in section 304B is recommended- The phrase “within seven years of her marriage” shall be deleted and hence, section 304B shall read as follows-

304B. Dowry death -

“Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.”

(paragraph 8.1.2, supra)

11.3 Modification of section 309 is recommended- The phrase “in order to avoid either interrogation, or raid, or arrest by the police, or the armed forces or any other investigating agency” shall be inserted and the term of punishment of one year shall be substituted by three years in section 309 and shall thus read as under:

309. Attempt to commit suicide -

“Whoever attempts to commit suicide and does any act towards the commission of such offence, in order to avoid either interrogation, or raid, or arrest by the police, or the armed forces or any other investigating agency shall be punished with simple imprisonment for a term which may extend to three years or with fine, or with both.”

(paragraph 6.4.2, supra)

11.4 We have taken into consideration the suggestion of the Supreme Court in Aruna Shanbaug’s case (supra) and hence recommend the insertion of a new section 309A is recommended- Section 309A shall be as under:

309A. Termination of life-

(1) Nothing in this Code shall render as an offence the termination of the life of a person who is suffering from terminal illness due to any incurable disease or accident and consequently, no longer desires to live; by the withdrawal of life support by a registered medical practitioner/physician with the consent of such person.

(2) If such person is incompetent to give consent due to terminal illness, written consent of the parents, spouse, and/or other close relatives, or in the absence of any of them, a person or a body of persons acting as a next friend, or the doctor(s) attending the patient must be obtained prior to such termination. The best interest of the patient must be the paramount consideration of the abovementioned relatives/persons while giving consent to such termination.

Explanation- In this section-

(a) “terminal illness” means “such illness, injury or degeneration of physical or mental condition-

(i) which is causing extreme pain and suffering to the patient and which, according to reasonable medical opinion, will inevitably cause the untimely death of the patient concerned, or

(ii)     which has caused a persistent and irreversible vegetative condition under which no meaningful existence of life is possible for the patient.

(b)       “best interest” shall include ethical, social, moral, emotional and other welfare considerations and not just medical interests of the patient.

(paragraph 7.5.4, supra)

11.5      Recasting of section 359 is recommended- Section 359 shall read as follows:

359. Kidnapping-

Kidnapping is of two kinds- kidnapping for unlawful purposes, and kidnapping from lawful guardianship.

(paragraph 8.2.1, supra)

11.6      Substitution of section 360 is recommended- Section 360 of the Indian Penal Code shall read as follows:

360. Kidnapping for unlawful purposes-

Whoever conveys any person beyond the limits of India or within the territorial limits of India, without the consent of that person, or of some person legally authorised to consent on behalf of the person, for the purpose of engaging such person in any unlawful activity, is said to kidnap that person for unlawful purposes.

Explanation: The term ‘unlawful activity’ shall have its meaning as per the law of India and as per the law of the country to which such person is being taken.

(paragraph 8.2.1, supra)

11.7        Insertion of a new section 363A is recommended- Section 363A shall be as under:

363A. Punishment for kidnapping for unlawful purposes-

(1) Whoever kidnaps any person for unlawful purposes, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

(2) Whoever kidnaps any person, with the knowledge and/or intention, for the purpose of training such minor or person, as the case may be for the purpose of carrying out any anti-national activity which is prohibited under this Code or any other law for the time being in force, shall be punished with the same imprisonment as that of the offence for which the kidnapping is done.

(paragraph 8.2.1, supra)

11.8 Increase of the quantum of punishment in Section 354 from two years to five years is recommended- Section 354 shall read as under:

354. Assault or criminal force to woman with intent to outrage her modesty-

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend upto five years, or with fine, or with both, depending upon the degree of the use of criminal force and/or assault as the case may be.

(paragraph 9.3.1, supra)

11.9        Insertion of a new section 375A is recommended- Section 375A shall read as under:

375A. Attempt to commit rape-

Whoever attempts to commit an offence in the nature of ‘rape’ as described in Section 375 of this Code, shall be said to have committed the offence of attempt to rape, for which he shall be punished with imprisonment of either description for a term which may extend upto seven years.

(paragraph 9.3.2, supra)

11.10   Recasting of Section 377 is recommended- Section 377 shall read as under:

377. Unnatural offences-

Whoever voluntarily has carnal intercourse-

(a)  against the consent of, with any man or woman shall be punished with imprisonment of either description for a term which may extend upto seven years, and shall also be liable to fine.

(b)  with any animal shall be punished with the imprisonment for a term which may extend to two years, or fine or both.

Explanation 1- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Explanation 2- Consensual carnal intercourse, between a man and man or between a man and a woman, shall not constitute the offence under this section.

11.11  We recommend accordingly.

______________________

(Mr./Ms. X)

          ______________________                                                                                                         ______________________

                         (Mr./Ms. Y)                                                                                                                                                  (Mr./Ms. Z)

Dated: March 10, 2011.

_____________________

1    Prof. N.V. Paranjape, Criminology and Penology 3 (Central Law Publications, Allahabad, 12th edition,  2006).

2    Law Commission of India, 156th Report on the Indian Penal Code, 1860 , Vol-I (June, 1971).

3    Manusmriti, Chapter VIII (4-7)

4  Salmond, Jurisprudence.

5    Madhab Hayawandanrao Hoskot v. State of Maharashtra, AIR 1978 SC 1548; 1978 Cri. L. J. 1678

6    Note A, Of Chapter of Punishment 1.

7   Gurdev Singh v. State of Punjab, 2003 Cri. L.J. 3764 (SC).

8   Bachan Singh, AIR 1980 SC 898; Machhi Singh, 1983 Cri.L.J. 1457 (SC).

9  Gurmeet Singh v. State of Uttar Pradesh, 2005 Cri.L.J. 4384 (SC) – where accused had killed 13 members of his family; even small kids in the family were not spared.

10  Siddik Singh & Pritam Singh v. State of Maharashtra, 1993 Cri.L.J. 2919 (Bom) where army personnel kidnapped, raped  and murdered a 4 month girl but death sentence not awarded.

11  State v Narayan Bisoi, 1975 Cri.L.J. 1391 (Ori).

12    Joseph v. State of Goa, AIR 1977 SC 1812.

13    Mahinder Singh v. Delhi Administration, AIR 1973 SC 697.

14    2001 Cri.L.J. 725.

15    AIR 1980 SC 898.

16    1998 (3) SCC 188; AIR 1998 SC 942.

17    AIR 1975 SC 1320.

18    AIR 1981 SC 1220

19    Apren Joseph v. State of Kerala, Ker LT 761

20    AIR 1980 SC 2147

21   2003 Cri.L.J. 2098 (Jhar.)

22   State v. Sushil Murmu ,2003 Cri.L.J. NOC 263 (Jhar.)

23   Law Commission of India, 210th Report on Humanization and Decriminalization of Attempt to Suicide (October, 2008).

24  Diana C.C. Sands, A Study of Suicide Grief: Meaning Making and the Griever’s Relational World, 2008 available at   http://epress.lib.uts.edu.au/dspace/bitstream/handle/2100/777/02whole.pdf?sequence=2 (visited on 10th March 2011)

25   The New Encyclopaedia Britannica, p. 359 Vol. 11, Micropaedia, 15th ed. (1987).

26     Halsbury’s Laws of England, Para 106, 4th ed. 2000 Reissue, Vol. 11(1),

27     1987 Cri. L.J. 743.

28        AIR 1994 SC 1844.

29        AIR 1996 SC 946.

30        Writ Petition (Criminal) No. 115 of 2009.

31   1985 Cri.L.J. 931

32   At page 7.

33      Nikhil Agrawal, Euthanasia- A Theological Approach, available at www.legalserviceindia.com/articles/ yasia.htm (visited on 10th March 2011).

34    N.M. Harris, The Euthanasia Debate. 367–70, J R Army Med Corps 147 (3), (Oct 2001).

35    Philippe Letellier, History and Definition of a Word, in Euthanasia: Ethical and Human Aspects by Council of Europe

36        Francis Bacon, The Major Works by Francis Bacon, Brian Vickers pp 630.

37        Aruna Ramchandra Shanbaug v. Union of India and Ors, Writ Petition (Criminal) No. 115 of 2009, (SC) – Para 38,39.

38        Ibid. para 41

39        Ibid. para 44

40        Sapna Dogra , “Is it time to legalise euthanasia?”, Healthcare Management Express, 1st-15th January 2005 Issue available at http://www.expresshealthcaremgmt.com/20050115/innews04.shtml (visited on 10th March 2011)

41        Ibid.

42        1996 (1) Bom C R 92; 1995 Cri. L.J. 96; 1994 (2) MhLJ 1850. See also- Maruti Shripati Dubal v. State of Maharashtra, 1987 Cri.L.J 743; P. Rathinam Nagabhusan Patnaik v. Union of India, AIR 1994 SC 1844. 

43        AIR 1994 SC 1844.

44        1993(1) All ER 821 (HL). The judgements of the American Supreme Court in Cruzan vs. Director MDH (1990) 497 US 261, the Irish Supreme Court in Ward of Court, Re a : 1995 ILRM 401, the Court of Sessions, Inner House of Scotland in Law Hospital NHS Trust vs. Lord Advocate: 1996 SLT 848, the Canadian Supreme Court in Ciarlariello vs. Schater 1993(2) SCR 119 and in Rodriguez vs. The Attorney General of Canada 1993(3) SCR 519, the Australian Courts in Q vs. Guardianship Administrative Board & Pilgrim: 1998 V.S. (CA) and Northridge vs. Central Sydeny Area Health Service: (2000) NSW 1241 (SC), Issac Messiha vs. South East Health: 2004. NSW (SC) 1061 and the New Zealand Court in Auckland Area Health Board vs. Attorney General: 1993(1) NLLR 235, to name a few, are unanimous on the legal principles.

45        Writ Petition (Criminal) No. 115 of 2009

46 The Termination of Life on Request and Assisted Suicide (Review Procedure) Act, 2001 accessed at http://www.minbuza.nl/default.asp?CMS_TCP=tcpAsset&id=CA83D9494B444D268938017F2330E54E (visited on 10th March 2011)

47   Ibid

48   K.P.M. Basheer, “Legalise euthanasia, says panel”, The Hindu ( National Edition), 8th Jan 2008 available at                                                        http://www.hindu.com/2009/01/08/stories/2009010859260400.htm (visited on 10th March 2011).

49   Ibid

50 See Section 2 (m) of the The Medical Treatment of Terminally ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006.

51 Ibid

52   Law Commission of India, 156th Report on Indian Penal Code, 1860 (August, 1997) at p. 135.

53   Ibid at para 9.35.

54 Ibid

55 Manusmriti, Chapter VII (14-19).

56 Manusmriti, Chapter VII (20-31).