Law Commission Report
Report On The Punishment Of Imprisonment For Life
LAW COMMISSION OF INDIA THI RTY~NINTH REPORT REPORT ON THE PUNISHLIENT OF IMPRISONMENT FOR LIFE UNDER THE INDIAN PENAI. CODE. ]uly, 1968 GOVERNMENT OF INDIA . MINISTRY OF LAW Shri P. Govinda Menon, I CHAIRMAN. Minister of Law, Law Commission, New Delhi. 5. Jorbagh, New Delhi-3. July 15, 1968. MY DEAR MINISTER, 1 have pleasure in forwarding herewith the '_I'hirty-ninth Report of the Law Commission on the subject of the punishment of imprisonment for life under the Indian Penal Code. 2. The question whether the punishment of imprisonment for life ought to be simple or rigorous was referred by the Ministry of Home Affairs to the Law Commission some time ago. The reference was made in View of the fact that several State Governments had sought for clarification on the subject, and because the Indian Penal Code and the Code of Criminal Procedure, 1898 were under revision. The subject. being of urgent and practical importance, was taken up last year for separate consideration by the Commission. 3. As usual, a Press note was issued inviting suggestions from the general public interested in the subject. The question was considered by the present Con:11nissien first at a meeting on the 16th April, 1968 and later on the 1st, 2nd and 3rd July, 1968 when the Report was finally approved. Yours sincerely, K. V. K. SUNDARAM. REPORT ON THE PUNISHMENT OF IMPRI- SONMENT FOR LIFE IN THE INDIAN PEN!-'LL CODE 1.
This Report deals with the nature of the punishment InIr0dT1~'-'-
called imprisonment for life in the Indian Penal Code, and ""3"
in particular, with the question whether, when such a sentence is passed on an offender the imprisonment he undergoes has to be rigorous or may be simple. This ques-
tion is of urgent practical importance and several State Governments have sought a clarification of the law. .It was accordingly taken up for separate consideration by the Law Commission.
2. Imprisonment for life, as a distinct punishment for ImDr1'S0n- _ certain grave offences under the Indian Penal Code, was m'%"tEif]'jfe:,'fe authorised by law with effect from the 1st January, 1956, 1595; when the Code of Criminal Procedure (Amendment) Act, 1955, came into force. Though this Act was mainly con- cerned with making extensive amendments in the Code of Criminal Procedure for diverse purposes, it also amended Indian Penal Code in one important respect. The punish- ment of transportation was abolished altogether, and the old punishment of "transportation for life" was replaced by the punishment of "imprisonment for life".
3. Section 53 of the Indian Penal Code, as enacted in Punishment 1860, provided for six, or rather seven, kinds of punish- under 'hf' _ Indian Penal ment, as follows.----. code as cu-
, . acted in 'First.---Death; H350, Secondly.-----Transportation;
Thi'rdIy.--1?ena1 servitude;
FourthIy.--Imprisonment, which is of two descrip- tions, name1y:--
(1) Rigorous, that is, with hard labour;
(2) Simple;
FifthIy.--Forfeitur~e of property; Sixthly.---Fine.".
It will be noticed, that while the section indicated the nature of the different punishments permissible under the Code, the term of the punishments mentioned in the second, third and fourth items, as also the quantum of the punishments mentioned in the last two items, was left to be specified in the relevant sections of the Code with re- fere-nee to each oifence.
2Macaulajfs 4. The penology of transportation for life was expound- exP°8iti0I1 0f ed by Macaulay, the author of the Draft Penal Code, in P°1°3V' trenchant terms as fo1lows:--
"The pain which is caused by punishment is un- mixed evil. It is by the terror which it inspires that it produces good; and perhaps no punishment inspires so much terror in proportion to the actual pain which it causes as the punishment of transportation in this country. Prolonged imprisonment may be more pain- ful in the actual endurance; 'out it is not so much dreaded beforehand; nor does a sentence of imprison- ment strike either the offender or the bystanders with so much horror as a sentence of exile beyond what they cail the Black Water. This feeling, we believe, arises chiefly from the mystery which overhangs the fate of the transported convict. The separation resem- bles _that which takes place at the moment of death. The criminal is taken for ever from the society of all who are acquainted with him, and conveyed by means of which the natives have but an indistinct notion, over an element which they regard with extreme awe, to a distant country of which they know nothing, and from which he is never to return. It is natural that his fate should impress them with a deep feeling of terror. It is on this feeling that the efficacy of the punishment depends and this feeling would be greatly weakened if transported convicts should frequently return, after an exile of seven or fourteen years, to the scene of their offences, and to the society of their former friends".
'I_'ranspo::a- 5. An analysis of the relevant sections of the Indian 'U011 gem-'ra1~ Penal Code shows that the punishment of transportation 1[§mf°' 6:"; Was, in all except two instances, for life. Only two sec- ,;.;.ns_ tions provided for a sentence of transportation for a shorter term, namely section 121A dealing with conspiracy ' to commit offences punishable under section 121, and sec- tion 124A dealing with sedition. These two sections were inserted by an Amending Act of 1870. Under section 121A, the ofiender could be punished with transportation for life or for "any shorter term". Under section 124A, the offender could be punished with transportation for life or for "any term".
Classification 6. The various offences under the Indian Penal Code, "5 .'1'1fl"gj'°'35 for which transportation for life was the only punishment pun" *1 e or one of the permissible punishments, may be classified as with trans- _ ponatjgn f01lOWS. ----
E" "f'*'' (a) offences punishable only with transportation for life, like being a thug (section 311) and extortion by threat of accusation of unnatural offence (section
338) ;' 1:. Section 226 (repealed in i955'; prc-vided that 1_m!awfnlre1urn firm r_j'a[]3c|()rfaTIUn was pun1shah]e_iv;1l1 l!';'t!1Sp01'taTl01'l forlife and the ofibndgr Was fiat-Ie also rn rigorous ITDIJEISD-nlnerat upro three years before such trans- portatino.
3(b) offences punishable with death or transporta- tion for life, like murder (section 302) and waging war against the Government of India (section 121);
punishable with death or transporta- imprisonment for a term (usually up to 10 years), like dacoity with murder (section 396) and fabricating false evidence with in- tent to procure conviction of a capital offence if an innocent person is convicted and executed in conse- quence thereof (section 194);
(d) offences punishable with death or transporta- tion for life or imprisonment of either description of a term (usually up to 10 years), like attempt to murder by life convicts (section 307) and abetment of suicide of a child or insane person (section 305);
(e) offences punishable with transportation for life or rigorous imprisonment for a term (usually up to 10 years), like kidnapping in order to murder (sec- tion 364), dacoity (section 395) and house trespass in order to commit an oifence punishable with death (section 449);
(f) offences punishable with transportation for life or imprisonment of either description for a term, like intentional omission by a public servant to appre- hend a person under sentence of death (section 222] and rape (section 376).
(c) offences tion for life or rigorous
7. Certain other provisions in the Indian Penal Code (as it stood before the Amending Act of 1955) relating to trans-
portation require to be noticed. Section 55 provided that uampma_ in every case in which a sentence of transportation for life had been passed, the Government of India or the Gov- ernme-nt of the place in which the offender had been sen- tenced may commute the punishment for imprisonment of either description for a term not exceeding 14 years. Section 5'? provided that in calculating fractions of terms of punishment, transportation for life should be reckoned as equivalent to transportation for 20 years. Under section 58, in every case in which a sentence of transportation was "passed, the ofiender. until he was transported, was to be dealt with in the same manner as if sentenced to rigorous imprisonment and was held to have been undergoing his sentence of transportation during the term of such imprisonment. Under section 59, in every case in which an offence was punishable with imprisonment for a term of 7 years or upwards, the Court could, instead of award- ing the sentence of imprisonment, sentence the offender to transportation for a term not less than 7 years and not ex- ceeding the term for which he was liable to imprisonment.
8. In regard to the punishment of imprisonment, should be noticed that none of the sections of the Indian Orh er visions tion.
pro-
to it Dura: ion of imprison-
mfiill .
Tran sports-
tion how carried out.
Legal pro-
visions re-
lating to transpflrtai tion.
Treatment of persons sentenced to transporta-
tion before 1956.
4Penal Code, as enacted in 1860 o-r subsequently, made any oifence punishable with imprisonment for life. In fact, wherever rigorous imprisonment is prescribed in the Code as the punishment, the maximum term is 14 years or less. Even in the case of consecutive sentences, section 35 (2) of the Code of Criminal Procedure limits the total period of imprisonment to a maximum of 14 years.
9. Apart from section 58 of the Indian Penal Code to which reference has already been made, there was no in- dication either in that Code or in the Code of Criminal Pro- cedure as to how a sentence of transportation was to he carried out and what exactly it involved. There is, how- ever, no doubt that when the Indian Penal Code was enacted, transportation meant transportation beyond the seas to the penal settlement in the Andaman Islands, and transportation for life meant transportation for the remain- ing period of the convicted person'-s natural life. Subse- quently, with changing notions of penology, treatment of prisoners and management of penal eStafi.IiShmet\t'S? the sentence of transportation ceased necessarily to involve convicts being sent overseas or even outside the Provinces wherein they were convicted.
10. First, it was enacted in section 358 {2} of the Code of Criminal Procedure, 1393, that no sentence of trans- portation should specify the place to which the person sentenced was to be transported. Then, section 29 of the Prisoners Act, 1900, provided that the Governor--G'-ene1"aI- in-Council may, by general or special order, provide for the removal of any person confined in a prison under, or in lieu of, a sentence of transportation or imprisonment to any other prison in British India and the Local Gov- ernment may similarly provide for such removal from one prison to another within the province. Under section 31 of the Prisoners Act, 190D, the Governor-GeneraI-in-Coun- cil could order the removal -ofaperson sentenced to transu portation from the prison in which he was confined to any other prison in British India. Finally, section 32 of the Prisoners Act, as amended in 1920, empowered the Local Government to appoint places within the Province to which persons sentenced to transportation should he sent.
11. There was, thus, no statutory obligation iinposed on the Government of India or a Local Government to provide any place overseas for the reception of such pri- soners. 'The only place to which they were in fact sent was the Andaman Islands. There were administrative orders of the Government to regulate what prisoners should, and what prisoners should not, be regarded as fit persons for being sent th'ere, and latterly, only such of them as volunteered were sent. As observed by the 5 Judicial Committee of the Privy Council in a judgment' of 1944,--
w "No doubt, therefore, the sentence [of transpor- tation] has been preserved for its deterrent effect and because, in certain cases, it may be both useful and desirable to send convicts. to the Islands, but at the present day transportation is, in truth, but a name given in India to a sentence for life and in a few spe- cial cases for a lesser period, just as in England the term imprisonment is applied to all sentences which do not exceed two years and penal servitude to those of three years or upwards.*** So, in India, a pri- soner sentenced to transportation may be sent to the Andarnans or may be kept in one of the jails in India appointed for transportation prisoners where he will be dealt with in the same nmnner as :1 prisoner sen- tenced to rigorous imprisonmentf'.
12. This was the position when the Code of Criminal Procedure (Amendment) Act, 1955, was passed, formally abolishing the punishment of transportation mentioned in section 53 of the Indian Penal Code. Besides making tex- tual amendments in all sections of both the Codes which referred to transportation, this Act inserted in the Indian Penal Code a new section 53A, in the following terms:--
''53A. (1*) Subject to _the provisions of sub-section (2) and sub-section (3), any reference to "transporta-
tion for life" in any other law for the time being in force or in any instrument or order having effect by virtue of any such law or of any enactment repeal- ed shall be construed as a reference to "imprisonment for life".
(2) In every case in which a sentence of trans- portation for a term has been passed before the com- mencement of the Code of Criminal Procedure (Amendment) Act, 1955, the offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same term-
(3) Any reference to transportation for a term or to transportation for any shorter term (by what- ever name called') in any other law for the time being in force shall be deemed to have been omitted.
(4) Any reference to "transportation" in any other law for the time being in force shall-
(a) if the expression means transportation for life, be construed as a reference to imprison- ment for life;
I. Pand¢'tKishar:' Lo! v. King Emperor, (I944) L.R., 72 LA. I; A.I.R. 1945 RC. 6.1.
Amendment of 1955 ab0--
lishing trans-
) nrtation.
'Etfect of isecrion 53A explained by Supreme Court.
6(b) if 1'-he EXP1'ession means transportation for any shorter term, be deemed to have been omitted.".
13. The question Whether a person sentenced to trans.
portation forllife in 1349 could legally be irnprisoned in one of the Jails in India and, if so, what was the term far which he could be so imprisoned, came up before the Supreme Court after the passing of the Code of Criminal Procedure (Amendment) Act, 1955, habeas corpus filed by Gopal Vinayak Godse, on a petition for Agreeing with thedecision of the Privy Council in P'cm.dit Kishori. La! lv- Kmg Emperor, and referring particularly to sub- section (2) GI; section 53A of the Indian Penal Code, the Court he1d2:--
"Whatever justification there might have been for the contention that a person sentenced to trans- portation could not be legally made to undergo rigor- ous imprisonment in a jail in India except temporari- ly till he was so transported, subsequent to the said amendment there is none. Under that section, a per- son transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonnzent for life or for the said term.''.
The legal position was further explained as iol1ows:--
"Before Act XXVI of 1955 a sentence of transpor- tation for life could be undergone by a prisoner by way' of rigorous imprisonment for life in a designated prison in India. After the said Act, such a convict shall be dealt with in the same manner as one sen- ienced to rigorous imprisonment for the same term- Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The rules framed under the Prisons Act enable such a prisoner to earn remissions-ordinary, special and State---and the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions, the sentence of trans- portation for life is ordinarily equated with a defi- nite period, but it is only for that particular purpose and not for any other purpose. As the sentence of transportation for life or its prison equivalent, the 'Life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a '"7,_" g;,;;,.,y1_..R., -n'-{.A._ I"; .s.I.R. 1945 RC. 54.
z G_1.r_ Gggfige V, Surge of .Mokarashrra,. A-T-Ru T954 5-C- 5'--'-'3- I' convict as it is not possible to predicate the time of his death. That is why the rules provide for a proce- dure to enable the appropriate Government to remit the sentence under section 401 of the Code of Crimi-
nal PI'0Cedl1I'e On a consideration of the relevant fac- tors, including the period of remissions earned".
14. While the legal position has thus been fully clarifi- ed in regard to persons sentenced to transportation for life before 1955, the question still remains as to how persons sentenced to imprisonment for life under any of the amended sections of the Indian Penal Code should be dealt with under the law as it now stands. Is such a sen~ tence exactly the same as a sentence of rigorous imprison- ment for life or as a sentence of simple imprisonment for life? Or is it a punishment different in quality, besides being different in duration, from a sentence of imprison- ment of either description for a specified term'? Is it legally permissible for the Court passing the sentence to lay down that the imprisonment shall be rigorous or shall be simple'? Is it obligatory under the law to do so'? If, following the insissima verb-1 of the penal provision, the Court simply passes a sentence of imprisonment for life, is it or is it not open to the prison authorities to subject the prisoner to hard labour? These are the various ques- tions of practical importance that arise out or' the amend- ments made in 1955.
15. In this connection, the views of the Joint Com- mittee which reported on the Code of Criminal Procedure (Amendment) Bill, i954, may be quoted':-
'The Committee note that the expression "trans- portation for life" has not been defined nor explain- ed in the Criminal Procedure Code. In the Indian Penal Code, in section 53, "transportation" has been prescribed as one form of punishment. But even in the Indian Penal Code the term has not been defined and there is nothing to show what is the duration of transportation for life. As a matter of fact, this ex- pression has not been defined in any Act- Transporta- tion may be either for Iife or for a shorter term. Therefore, the mere substitution of the e:x:p1'ess-ion "imprisonment for -li;fe"' for "transportation for life"
should not change the nature of punishment. As a form, of punishment, imprisonment for life must 're- main distinct from rigorous or simple iniprisonrrzent. Where, however, a sentence for transportation for a term only has been passed before the commencement of this Act, the offender should be dealt with in the same manner as if he was sentenced to rigorous im- prisonment for the same term and all references to 1, Report of-the joint Committee, paragraph 8. -tinder clause 2 Ofthe Bill.
Questions to be con-
siclered.
Vnews of the Joint C.0rn.m.ittee.
B transportation for a t an 1 -
intentions of the Cogiriiitteeouhgvgebggiinégriagd TE;
31:6 insertion of a new section 53A in the Indian Penal do change 16. From the above citation it would appear that Par.
flteéiricdofin lplament did not intend to make any material change in mm,-3hmm_ t 9 I1?-'ltllrse of _the punishin-ent formerly known as trans. portation for life by calling it imprisonment for life. We have 533935? l10l'»1CEd the iudgrnents of the Privy Council and or the Supreme Court which make it clear that even before the formal abolition of transportation to the Andanoans, persons sentenced to transportation for life were, and could lawfully be, dealt with in the same manner as' persons sentenced to rigorous imprisonment. If this position was neither changed, nor intended to be- changed, by the Act of 1955, the statement of the Joint Committee that "as a form or punishment, imprisonment for life must remain distinct from rigorous or simple im- prisonment" is diflicult to follow. In what way is it dis- tinct, apart from its duration'? It carinot, in practice, be distinguished from a sentence of rigorous imprisonment.
Omission of 17. Reference has already been made to section 53- 5°9t'°n 53- which formerly was sufficient statutory authority for deal- ing with persons sentenced to rigorous imprisonment. Al- though the section was intended to be a temporary hold- ing provision authorising such treatment oniy until the prisoner was transported beyond the sees, it appeared to have served the purpose even in regard to prisoners, who were actually never transported. It was logical to omit section 58, since with the abolition of transportation, there would be no need in future for the special provision, but the Act of 1955 did not make any other provision to indicate how exactly persons sentenced to iinpriscnment for life should be dealt with.
Prisons Am 18. Naturally, the Prisons Act, 1894, and the Prisoners and Prisoners Act, 1900, are also silent on this point. Their provisions 5°" are not suflicient for the purpose of determining the character of imprisonment for life. As pointed out by a State Government, if imprisonment for life is distinct from rigorous imprisonment, there is no provision any- where under which prisoners sentenced to life imprison- ment can be treated as having been sentenced to rigorous imprisonment and it is doubtful whether a rule can he made under section 50 of the Prisons Act authorising such treatment.
R='=r=n=*'-'=~ 19. Section 53 of the Indian Penal Code, which lists the ,§2,-s£f,31e,§§"' punishments to which offenders are liable, has now two . 1: Supreme items reading----
('1 6- ''Seco'rLd!y.-----Imprisonment for life;9
Fourthly.----Imprisonment, which is of two des- criptions, name1y:--
(1) Rigorous, that is with hard labour; (2) Simple.''.
Juxtaposed in this fashion, the two items immediately give rise to the question to which description, rigorous or simple, does imprisonment for life belong or is it ofi a different third description. The question has not been raised in a direct form before the Supreme Court. In one case,' while setting aside an acquittal on a murder charge by the High Court of Madhya Pradesh, the Supreme Court decided-
"We consider that the ends of justice would be met if we sentence the accused to rigorous imprisonment for life-".
In another case," where the High Couit of Bombay had sentenced the accused to rigorous i-mpnsoflmeflt for life. the Supreme Court, dismissing his appeal said:--
"The conviction of the accused under section 302 of the Indian Penal Code and the sentence of im.:m- sonment for Iifle passed on him by the High C01-'rt are correct".
In a third case" from Punjab, the Supreme Court. converted the sentence of death into one of i.mp'riSo'mne-rt: for life. But the question before us has not been considered by the Supreme Court in any reported case.
20. It appears to have been raised for the first time in Kerala High Kerala soon after the amendment of the Code came into C0ur1:'aview- force. In Mothommai Scrraswothi V. The State,' the Kerala High Court observed:---
H "In passing the sentence for the three murders, the lower court has not chosen to say Whether the imprisonment the appellant is to undergo should be simple or rigorous. Section 3G2 as amended by the Schedule to the Code of Criminal Procedure (Amend- ment) Act. 1955 (Central Act XXV I of 1955) only states 'that the alternative punishment for murder shall be "imprisonment for life", and not rigorous imprisonment for life or simple imprisonment for life. The court passing the sentence has, however. to keep in View the provisions of section 60 of the Penal Code and choose one or the other form in view of all the circumstances.
I.5'r:I!.e offvrasaaya P:-a:i;i;_'\'. Ahamadulinh. A.1.R. :95: so. ggé{iou2-
2.K. M. Nimavati o. The Stare of fliakamshrra, A.I.R. I962 S.C:.6-o5, 608 (paragraph 3). 630 (paragraph 87).
3. _?'ai Dev v. The Store of P.'Jfl}Gb_. A.I.R. 1963 S.(.'.. 613. 62: (paragraph
24).
4. P..I.R. I957 Kerala 102.
Confident-
tion of Section 60.
Urisssfligh Cs:sL=Lrt'n'ieW.
10_ "Recently we had another instance where the Ses- SIC-1'1S_JUdQ€ had failed 'l_U speciiy _w']1e't]1e1- impriggnment far 11759 awarded by him was 1'lgDr0|.1s or simple. In that case the Inspector General of Prisons had sought our direction as to what description of imprisonment the prisoner shoulci be made to undergo. Hem we clarify the position by statlng that the imprisonment for life in this case shall be simple imprisonment, and not rigorous".
2i_.'i\"ow, section 63 of the Indian Penal Code provides that "111 ever}? case in which an offender is punishable with imprisonment which may be of either description, it shall be competent to the Court which sentences such ofiender to direct in the sentence that such imprisonment shall be wholly rigorous or that such imprisonment shall he whoily simple or that any part of such imprisonment shall be rigorous and the rest ' 1e.". Since in the ease of a oon-r viction under section 3532, the ofiender is punishable with imprisonment for life, and not with imprisonment which E3 of either dwcripiion (as, for instance, in the case of a conviction under section 30%}, sefltion 60 does not seem to us to be appiicable. An argument might possibly be based on the definition of ''imprisonment'' in section 3(2':') of the General Clauses Act, 1897, but it is doubtful whether in the context of section 53 or section 302 of the Indian Penal Code, ihst definition could apply.
22. Dissenting from the view taken by the Kerala High Court. the Orissa High Court has heidl that "im]3risOnn'1e1'1t for life" means "rigorous imprisonment for life". The main grounds on which this decision is based are----
(i) the proposition iaid down by the Privy Coun- cil? and reaffirmed by the Supreme Court', that a per- son sentenced to transportation could be treated as a person sentenced to rigorous imprisonment;
(ii) the discussion* of the question in the Report of the Jgint Committee which oonsi.-:1.e:-red the Code of Cr.)- rninal Procedure (Amendment) Bill of 19554. Particu- lsriy the observation that substitution of "irnprison-- ment'-' for "transportation" should not change the natnre of the punishment; .
(iii) the use of the expression "I'ig0T0'J3 imE>F1S0F1- mam my 1519" in same. juugrner-.25 of the Supreme Court;
(iv) the non-applicability of section iii) to the sentence of imprisonment for hie.
r.UrI:'kio v. The State, -EX-T-'Fm I954: 01'i'a'59 1-19- 2,K:':hm-:' Lalo. Emjberor, 72 Ind. App. 1; fi-I-Pu 36,19. Godse F'. The .9mze, A.1.R. 1961 5.C- E05.
1945 P.C. 64.
.;,See 'paragraph E5: 5'|-'i'f"*'*'-
11N°ne_ Of these E1"01111dS,_however, appears to us to lean definitely to the conclusion that imprisonment for life must be rigorous.
23. Adverting now to the questions posed in-'paragraph 14 above, it appears to us that they cannot be answered with any degree of certainty or assurance. We are inclined to think that, as the law stands at present, a sentence of iinprisonnient for life cannot be equated either with rigorous imprisonment or with simple imprisonment for life, and the law does not authorise the Courts which find It necessary to pass that sentence, to direct that it shall be one or the other. There is also he direct provision in the law which enables the executive authorities to regulate the manner in which such sentences are to be carried out, This unsatisfactory state of affairs can only be remedied by suitable legislation.
24. As regards the direction in which the law should be clarified, there are the two alternatives indicated respec. tively by the judgments of the Kerala and Orissa High Courts discussed above. According to the Kerala High Court, imprisonment for life, like imprisonment for a spe- cified period, may be of either description and the court awarding the sentence should have the discretion--and the duty--to direct in the sentence that such imprisonment shall be wholly rigorous, or wholly simple, or partly rigo- rous and partly simple, as provided in section 60 of the Code. If the Orissa view is to prevail, the clarificatory legislation will take the simple form of stating in the appropriate place that "imprisonment for life shall be rigorous." A third possible course may be to clarify that, as a kind of punishment, this is distinct from rigorous or simple imprisonment, and to make provision in the prisons Act, 1894, the Prisoners Act, 1900, or elsewhere for the manner in which the life sentence is to be carried out.
25. In favour of the first alternative it can be said that cases occasionally arise where a capital offence has been committed but the circumstances are such that the offender does not merit the sentence of rigorous imprisonment for life, i.e., imprisonment with hard labour, and that the court trying the case should have the power to give a direction under section 60 of the Penal Code that, having regard to those circumstances, the imprisonment should be simple and not rigorous. The "case of Mothcmmol Sm-aswathi (op. cit.) which came up before the Kerala High Court (where a pregnant woman who found life in her husband's house intolerable decided to put an end to herself and also her three children, but, as fate would have it, succeeded only in regard to the latter) was undoubtedly of this character. But then, such hard cases are rare, and when they do occur. they can be readily, and perhaps more adeC1ua'CE1Y. dF'a1'€ with by the Government exercising the powers of commu- tation and remission vested in them. Section 55 of the Uncertainty of present Clarification of the law--
possible alternatives.
First alter-
native not suitable.
Third alter-
native not Suitable.
Recommen-
-dation.
12Penal Code would seem to be very relevant and specially designed for this purpose.
26. It has to be borne in mind that, as analysed in para- graph 6 above, the offences for which the sentence of imprisonment for life is prescribed in the Penal Code are of a grave and heinous character. 'Where it is prescribed as the sole punishment or as an alternative to a sentence of death, there would be little scope in the general run of cases for the court to make the imprisonment simple and not rigorous. Some slightly less serious offences are made punishable with imprisonment for life or imprisonment of either description for a term. If in such cases the circum- stances are such that a lenient view should be taken of the ofience, the court has already the power to impose simple or rigorous imprisonment for a suitable period and_would not have to impose a Sentence of imprisonment for life. It does not therefore seem to us either necessary or desirable that under the law the punishment of imprisonment for life should be declared tc so either rigorous or simple and that the court should have the discretion to direct In the sentence which kind it would be.
2'7. The adoption of the third alternative, namely, that of keeping the sentence of imprisonment for life a distinct punishment, would involve the working out of details as to the manner in which the sentence is to be carried out. When convicts were transported overseas to the Andamans, the conditions of their incarceration were totally different from the conditions attaching to rigorous or simple impri- sonment undergone in the Indian jails, and were regulated by rules and orders applicable only to the Andamans penal settlement. In regard to life imprisonment. the questions would naturally arise whether it should "be milder or severer than rigorous imprisonment, whether life convicts should be kept in a separate category and, if so, l_10_W- We do not think there is anything to be gained by raising, and then attempting to solve, these problems.
28. We are accordingly of the view that the best course will be to provide categorically in the Indian Penal Code that "imprisonment for life shall be rigorous". As indicat- ed by the transitional provisions made in section 53A and the statement in the Joint Committee's Report, the inten- tion of Parliament was not to make any material change in the pre-existing position which was to treat persons sentenced to transportation for life as if they had been sentenced to rigorous imprisonment. We recommend that, after section 55A of the Code. the following section be inserted:---
13"56. Imprisonment for life shall be rigorous".
29. Finally, while our present proposal is limited to the immediate problem of resolving the doubts that have arisen as regards the nature of this punishment, we have noted for future consideration the question whether it is at all necessary even in regard to capital ofiences and whether it should be retained without modification in regard to the numerous other offences now so punishable. It strikes one as extremely anomalous that an offence like sedition should be punishable with either imprisonment for life or with Imprison-
ment for life to he rigo-
mus.
rigorous or simple imprisonment which may extend to _ three years, but not more. These questions will have to be considered when the lndian Penal Code is taken up for revision.
1. K. V. K. Sundaram--Cho1Lrrnan.
2. S. S. Dulat,
3. B. N. Lokur,
4. Mrs. Anna Chandi,_ _
5. S. Balakrishnan, T In '1 }- Members.
J Pi P. M. BAKSHI, Joint Secretary and Legishttive Counsel.
New DELHI, The 4th July, 1968.
GMo'IPNb_:rsw_4 Law s.n.s9._;,g¢.o_