As far as we know, there are no hard-and-fast rules — like what decade the car was made in or how far it is from a nuclear blast — that will tell you with any certainty how likely it is to fail from an EMP. So we consider the sudden loss of most or all powered transportation a scenario worth preparing for as much as you realistically can. Metatech modeled the impact of a Carrington-class solar event on North America, and their simulations resulted in over million people without power and the majority of the grid offline for 4 to 10 years. Consider also the February Senate testimony from Dr.
He does concede that the E1 pulse could be damaging, though. Contrast these optimistic assessments with those from the US government, like the EMP commission report or a Air Force report on EMP threats , both of which suggest that even a relatively small nuke on an intermediate-range missile could be a civilization-ender for the US. To understand how and why our critical power delivery infrastructure could be vulnerable to different types of EMP, you have to consider it within the context of three strongly coupled but nonetheless distinct electrical systems:.
Nothing could be further from the truth. The earth and sun together make up a planetary-scale electromagnetic system that flexes and flows in ways we only dimly understand. The earth is, in effect, a giant semiconductor, much like the semiconductors that make up computer microchips. That dynamo wraps this planet-sized semiconductor in a powerful magnetic field.
When this magnetic field is set in motion by a blast from the sun or a bomb, it forms a low-frequency, ground-penetrating electromagnetic pulse that causes induction effects within long, unshielded conductors like buried metal pipes or elevated power lines. It makes stops along the way at thousands of substations that house sensitive equipment, like the extra high-voltage EHV transformers that get the current ready to be distributed to homes and businesses. These EHV step-up and step-down transformers are expensive to manufacture and transport: they cost millions of dollars, weigh between and tons, and are made from difficult-to-source materials.
The total worldwide production capacity for EHV transformers is about one hundred units per year. So replacing such a transformer is a process that takes from 5 to 16 months, and requires functioning fuel and transportation infrastructure car and rail to get the device on-site and installed. We do not currently have replacement units available for more than a handful of EHV transformers, so the loss of just ten or more would take a year or more to fully recover from in the affected regions.
Contrast this with direct current DC , where the voltage goes in one direction. This distinction is important, because no part of the main power infrastructure described above is made to handle a DC load — exactly what an E3 pulse induces. When much of the power grid was originally built, it was controlled by electromechanical devices that humans operated to do the work of monitoring and routing electricity around the network in response to demand. But in recent years, the electrical grid has been upgraded by the same computer-automated enhancements as everything from cars to homes.
Most commentators who downplay the EMP threat claim the electric grid is complex and difficult to model properly, therefore we really have no clue what the impact of a severe EMP would be. Kappenman told us that the grid is actually relatively easy to model. The hard part is modeling the earth and figuring out the location and magnitude of GICs. So differences in ground models are behind much of the variation in expected EMP impacts described above. Or, in a more recent case, Metatech filed a regulatory comment outlining how the US power industry was found to be submitting models for domestic EMP impacts that are based on a handful of GIC measurements from Scandinavia.
Recent Senate testimony from Nathan Anderson , Acting Director of the US Government Accountability Office, summarizes the current, sad outcome of decades of study and work on how a solar storm GMD for geomagnetic disturbance would impact the power grid:. In December , GAO reported that federal policymakers face three broad questions that need to be addressed regarding GMD effects on the electricity grid: 1 What is the likelihood of a large scale GMD? Efforts are under way to address aspects of each question that will help inform whether additional actions are needed to prevent or mitigate the effects of GMDs on the U.
The high-frequency E1 pulse from a nuclear blast can fry the delicate electronic circuitry in the SCADA systems that keep the different parts of the grid running. With the notable exception of nuclear power plants, these systems are not shielded against EMP, either in plants or in substations. And even at nuclear plants, the SCADA systems controlling the backup generators that run the emergency cooling systems are not shielded. Multiple sources we reviewed and one expert we talked to expressed deep concern about the impact of an E1 pulse on these critical control systems.
This applies to power substations, control centers, and power generation facilities. However, there can be a large range of variation, which depends significantly on the particular layout of each facility. Let me give you a simple illustration of what the challenge is. Well, the cellphone will generate a field of about 1 to 3 volts per meter. Shielding these systems against E1 by means of a Faraday cage would be expensive and difficult, since E1 pulses bounce off of metal and can ricochet their way through any gaps in the shielding.
Note that in the grid was about half the size of our current grid. What experts like Kappenman worry about specifically is that the big EHV transformers could overheat when hit with a geomagnetically induced DC current of sufficient size and duration, and fail catastrophically. The number and location of catastrophic EHV transformer failures is actually the main place where different impact assessments disagree. In a regional grid-down scenario, either because of a relatively low-altitude nuke or a solar storm that comes in at just the right angle and intensity to have limited impact, it could take months or years to repair critical infrastructure.
If the systems are damaged and must be replaced, repairs will stretch out far longer, since new parts must be ordered and installed. In either case, this would be a massive undertaking, and the affected area should expect to be without power for months or even years. And because the financial system will also be functioning, and they can expect insurance to pay out though most likely with some type of government help.
There are a number of possible national grid-down scenarios, the most likely of which being that large parts of the grid are brought offline immediately by a nuclear or solar EMP, and the rest of the grid fails due to cascade effects see below. In every case, no matter the power plant type, a black start requires power from some external source: typically the power grid, but some plants have on-site generators specifically for this purpose. Many plants also need some sort of matching load from the grid in order to work properly, i.
Given that a black start is a delicate operation that involves power going into and out of the plant from a functioning power grid, you can imagine what a nightmare it would be if the entire power grid — from plants out to substations — must be brought back online after having gone completely dark. If a falling tree branch can do that, a first generation atomic weapon, I hate to think what that could do.
And I want to get to the kind of weapon that might be used and how a terrorist group might want to do that. Let me just ask one last question. In Phoenix during the hot part of August, there was a fire at a switching station for one of the utilities and two transformers were burned. We were on the edge of a catastrophic failure in Phoenix because of that because the only place where the transformers could be purchased, I believe, was someplace in Italy. It took a long time to get them there and they had to be transported by a very large, special kind of truck.
Thankfully, we had enough generation and transformer capacity to just barely work out of the problem.
But would a nuclear weapon cause damage to things like switching facilities, transformers, as well as other kinds of circuitry? Chairman, I think the situation that you just de- scribed is existing in most, if not every, city across the country. If the United States was subjected to a continental-scale EMP attack, you would see damage of the type that you describe, but of a much more serious character, to all of the major transformers at once that are connected and that are postured so that they would see 20 not the instantaneous component, but the slow or several-minute duration component.
This is not hypothesis. This is the type of damage which is seen to transformers in the core of geomagnetic storms. The geomagnetic storm, in turn, is a very tepid, weak flavor of the so-called slow component of EMP. So when those transformers are subjected to the slow component of the EMP, they basically burn, not due to the EMP itself but due to the interaction of the EMP and normal power system operation.
Transformers burn, and when they burn, sir, they go and they are not repairable, and they get replaced, as you very aptly pointed out, from only foreign sources. The United States, as part of its comparative advantage, no longer makes big power transformers anywhere at all. They are all sourced from abroad. And when you want a new one, you order it and it is delivered — it is, first of all, manufactured.
There is no inventory. It is manufactured, it is shipped, and then it is de- livered by very complex and tedious means within the U. They come in slowly and painfully. Typical sort of delays from the time that you order until the time that you have a transformer in service are one to 2 years, and that is with everything working great.
Let me now switch to a different inquiry. Terror- ists are very clever, but sometimes it seems to me they are more interested in something really showy than something that might be even more damaging. But I always thought that if there were access to a nuclear weapon, that the biggest bang would be to blow up a whole lot of Americans in a city, cause the collateral damage, but primarily the immediate loss of lives.
So the first question that came to my mind is, while I could un- derstand in war or preparation for war a power, and just to use a hypothetical case like China, for example, or North Korea, might want to freeze our capabilities with an EMP kind of attack, would a terrorist necessarily turn to that as the first choice? And then, of course, the response comes in, well, maybe that is not a matter of choice, but it is a matter of convenience.
What were the sce- narios that the Commission looked at that led it to conclude that this might well be doable and something that a terrorist would ac- tually decide was the best thing to do or the only thing that could be done? Chairman, the Commission proceeded not on a scenario-driven fashion but on a capabilities-based manner, and so we looked at the capabilities that would have to be brought into ex- istence by an attacker to impose various levels of damage and we 21 tried to steer fairly clear of sketching ways, particular ways in which particular people might choose to do this because, frankly, thinking like a terrorist or thinking like a rogue state leader or whatever is well outside the competencies that the individual Com- missions brought.
None of us have been terrorists and very few of us have led rogue states, and so we merely looked at the capabili- ties that could enable such behaviors. Not inviting a comment about Berkeley there. That was extraordinarily high leverage. Now, terrorists might be very much inclined towards attacking iconic targets, but if it is a semi-rational terrorist, he probably looks for leverage and one of the types of leverage that is probably most impressive is dollar leverage.
How much can I destroy per what I invested? Osama bin Laden boasted of how little he spent on the attack on the Twin Towers and how much damage was im- posed and so forth. There is roughly 35, Scud ballistic missiles, for instance, in existence at the present time. As I said, they sell for a small frac- tion of a million dollars apiece, and private collectors in the conti- nental United States have taken delivery as private individuals on Scud missiles in their homes that were in operational condition.
So these things are easy to come by. I realize that you all are very scientific and pre- cise in your approach to these problems, and you caveat your con- clusions very carefully, that you are not into scenario analysis. But with respect to the average person thinking about how, not how likely it would be, but at least whether there is some remote possi- bility that this could occur and, therefore, it would be something 22 that we would want to put assets against to try to protect against it or to deal with it if it occurred, there has to be some element of probability involved.
And so one gets into questions of how easy it would be, for exam- ple, for a terrorist organization, as opposed to a state, to launch a guided missile against a specific target in the United States with a nuclear warhead on it and whether that would be just as easy to do as detonating something in the air that would cause this kind of damage. You pointed out that the range of missile available to a terrorist would not be an ICBM today, presumably, but would be a shorter- range missile so that it would have to be launched from something off our coast or in an adjacent area.
But as you note in testimony and as Dr. Pry noted, that could come from a seaborne vessel from which Scud-type missiles have been successfully launched, is that correct? Indeed, the Secretary of Defense has pointed out twice in the last year and a half that at any given time, any of a couple of dozen vessels off the coast of the United States count mount such an attack, and those have been, as I pointed out, kind of off-the-cuff statement in news conferences as, hey, everybody un- derstands and knows that. Wood has said, al Qaeda is known to own 80 freighters.
I think that is the estimate. They are supposed to own 80 freighters. So that is well within their capa- bility. The hard part is the nuclear weapon. If you had a Scud and a freighter, would you attack a city to kill people versus doing the EMP? Well, one problem you have with that mode of attack for going against the city is that it is so inac- curate that the likelihood is, well, you are running a great risk that you might not hit the city at all. So that technical consider- ation might well tend to — Chairman Kyl. This is a very important point that I would like to just have us dwell on for just a moment, because it does help to answer the question of why potentially an EMP attack.
I mean, one answer is you are very rational and you know how to leverage money and to get the most bang for the buck. The second reason would be that it might be very difficult to launch a missile with the kind of guidance available for a Scud missile, for example, to actually hit your target in the United States if you were doing this from a barge or a freighter offshore, is that correct? Oh, yes, and there is additional considerations.
You know, a missile that is going to go to ground, to actually hit a city, is going to be more vulnerable to missile defenses than an EMP. An EMP only has to complete half its trajectory, and doing it the other way, to go after a city, has to complete its full trajectory, and at the end of the trajectory is exactly when you are going to be most vulnerable to missile defenses.
Suppose you had a first generation weapon. Suppose you, instead of using a missile, suppose you had a suitcase-type thing or you wanted to send it into New York Harbor or something like that.
In areas where earthquakes are common, a countermeasure known as "Drop, Cover, and Hold On! No single definition of the term "terrorism" has yet gained universal acceptance. It is the intent of this report to define the particular hardening measures that will minimize the susceptibility of system components to HEMP effects. One reply" points out. The computed translational temperature rise 40 K and nitrogen vibrational temperature rise K were of the same order of magnitude as. Thus, although the advice to duck and cover is over half a century old, ballistic glass lacerations caused the majority of the human injuries following the Chelyabinsk meteor air burst of February 15,
Well, with a kiloton weapon, you are not going to destroy the City of New York. With EMP, you at least have a possibility of actually killing mil- lions of people, millions of people, and getting a much bigger bang for the buck. Moreover, whereas the attack on a city could backfire in the sense of instead of breaking the will of the American people in the war on terrorism, it could just further enrage us and steal our re- solve to project our military forces and use our strength to pros- ecute that war, when you think of, well, how could the terrorists possibly win the war on terrorism, this is one of the few options that is available for them to actually win the war on terrorism.
If they could destroy the United States as a superpower by disrupting our infrastructures, they would win the war on terrorism. Perhaps this is why Iran is doing the kinds of tests it is doing with those Shahab-3s that have been burst at high altitude. We have described them as test failures.
They have described them as successes, as I alluded to in the testimony. And why do that test off of a freighter? And we also know from al Qaeda that Osama bin Laden, one of the reasons he attacked the World Trade Centers was financial. They were hoping to disrupt our economy. That was one of their goals. Returning to your core thrust just briefly, Mr. Chair- man, the basic thing that should intrigue an attacker, a rational attacker, about mounting an EMP attack is, as Dr. Price said, you only have to do half of the normal ballistic missile mission.
Two things that are crucial that were cited by implication that deserve to be emphasized is that you only have to throw the payload up. That is the essence of the thing. They literally can be a Eourth of July-type rocket with a nuclear explosive on the front. And so that is a set of enabling things which make an attack much, much easier to launch. And then when you start looking for telltale features and so forth, this combination of launching off a barge in the Caspian, what in the world motivation does the Iranian government have for launching off a barge against Israel, against Iraq, against any of its traditional local enemies?
Launch off a barge? It makes no sense at all. What sense does it make to have your test detonate 24 its payload at high altitude in mid-course? No sense whatsoever, and yet they do this. So you either say they are crazy, which is the lazy way out, or you say, what in the world are they intending to actually do? So before we get to how do we fix this problem, then, we have got sort of the means and the motive pretty well es- tablished as well as a huge amount of damage should such an at- tack occur. We, therefore, get to the question of what can we do about it and there has been work done on this both in terms of the Department, as Dr.
Fonash discussed, as well as the recommenda- tions that the Commission made in its report. What are we doing about it? What can we do about it? I would just like to, before we leave the first section, Mr. One is the Executive Sum- mary and the main body of the report, all of which are unclassified or in the late stages of being formally declared to be unclassified. We hope to see that out entirely very soon past the executive branch reviews. The second main piece is concerned with military matters, which the Commission was charged with looking at military vulnerabilities, as well.
That report is classified secret and is avail- able through appropriate channels at the present time. The third one, which is classified top secret with special caveating and labels and so forth that would typically go with intel- ligence matters, addresses specifically the points that you referred to, from whence is the attack coming and when and how soon and with what likelihoods and why would people be motivated to be doing it and what are they actually doing.
That is very highly clas- sified and that report and its findings and recommendations obvi- ously can be addressed only in closed session. That is what I re- ferred to in my opening statement. But there is a great deal of in- formation that was examined by the Commission and assessed and findings and recommendations based on it in that final relatively small portion of the report, which necessarily is discussed only in very cloistered circumstances.
But it is discussed. Pry, would you like to perhaps first address the problem, the recommendations of the Commission? Ultimately, this is really a good news story. De- spite the catastrophic nature of the threat, I think one of the breakthroughs the Commission really did — made — it came up with, in a sense, a blueprint that, if followed, in three to 5 years, at af- fordable, modest cost could mitigate, so mitigate the effects of the EMP threat that we could take it out of the catastrophic category and recover from this particular threat.
That is a huge accomplish- ment. Things like that are still such a formidable problem, most people are still trying to get their arms around how to solve it. But this one is doable. For example, those trans- formers Dr. Wood referred to, instead of having the ability to re- place only 1 percent of the transformers in this country, which is about what we have got now, maybe we should have about of these transformers purchased in advance, stored on-site in metal sheds that are welded in such a way that they become cages so that they would be protected from the effects of EMP, disconnected from the power grid.
Then you could quickly replace those trans- formers, and as we found from our analysis, once you get that power grid up, you can bring back all the other infrastructures fair- ly expeditiously. That could be ac- complished in three to 5 years. Take diesel-electric locomotives, for example. There are tens of thousands of them in this country. Each diesel-electric locomotive, they can generate about a megawatt of electricity. In Canada, for years, they have been using them during the winter to power villages and small towns. That is how much electricity you get out of one of these things. We are taking the wheels off and sending them to Iraq, American diesel-electric locomotives, to supplement the destroyed electric in- frastructure over in Iraq.
Maybe we need a plan in the aftermath of an attack like this, or a cyber terrorist attack or something else that would interfere with our power grid, to take advantage of the tens of thousands of diesel-electric locomotives. Where do we drive them to? What are the highest priority things? I would suggest maybe we need to drive them to those regional food warehouses, the larder of the United States. There are maybe a couple of hundred regional food warehouses in which a day supply of food, you know, supplies all of the States.
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In the super- market, you have only got about a day or two worth of food. Where the food comes from, it is transported by truck from these regional storehouses which critically depend on refrigeration and tempera- ture control, so the food will spoil very quickly. Maybe we need to get diesel-electric locomotives to each of these things to keep them powered up, and to hospitals and to other critical nodes in commu- nications and in the power infrastructure so that we can most ex- peditiously bring things back in that aftermath.
The Commission found another example. There is a particular fuse that is just by accident of its design that is much less suscep- tible than the fuses that are currently used in traffic signals, to control traffic lights and other kinds of traffic regulation. This fuse costs, like, one penny more than the fuse that is currently used, but is much harder to the effect. So these are just some examples of things that would go very in- expensively a long way toward mitigating the problem. We will talk about communications in just a sec- ond, but I can think of so many other problems that could arise.
In order to pump water, you have to have electricity. Indeed, the Commission found that just exactly that problem was likely to be an exceedingly serious one, sir, in the im- mediate aftermath of an EMP attack, that the fires, once started, would spread completely out of control and without human inter- vention, effective human intervention, something for a lack of abil- ity to source water onto those fires, create fire breaks, and so forth.
So that is the sort of immediate aftermath. Young children are very fragile and we would lose four million infants under the age of one in the first two weeks, most all of them, and so forth. So the damage would be pretty dramatic. Nobody gets killed right away, but in the immediate aftermath, America in a lot of senses would be hammered to its knees unless, and this is a cru- cial — excuse me, sir — unless, as Dr.
Pry pointed out, and this was a key finding of the Commission, the attacks were regional and the edge effects could be martialed very, very swiftly and effectively so that the rest of America came to the rescue of the portion that had been brought under. But for that, we have to start with a plan. Of course. We have to not only have the plan, but we have to have the things to enable the plan very quickly. Now, do any of you know whether the rec- ommendations of the Commission have been dealt with in any spe- cific way by the Department of Homeland Security?
Leave out De- partment of Defense, because that is really a different issue. Let me answer that in two ways. First of all, let me talk to you about telecommunications and then let me talk about DHS infrastructure protection in general. With regards to telecommunications, we have par- ticipated, the Commission, we actually testified in front of the Commission.
As I said before, for over 20 years, we have been test- ing equipment against EMP and other electromagnetic effects. We have implemented many of those recommendations. And we also continue our testing program. We remain vigilant in communica- tions against the EMP threat or any other type of EMP or electro- magnetic effect against telecommunications. Telecommunications basically is the — the telecommunications in- frastructure we have today is relatively impervious to EMP.
It would be disrupted, but then it will be restored. It can be restored. And during a blackout, going to the New York blackout, communications functioned well. The basic communica- tions worked through the blackout, and that is due to the fact that major communications centers have multiple sources of back-up power, one being that they have battery back-up, and then in addi- tion to battery back-up, they have diesel generators.
But during a blackout in New York, the telecommunications basically functioned. Now, with regards to the overall issue, is the Department of Homeland Security addressing this, since the creation of the De- partment of Homeland Security in , we have been trying to protect our critical infrastructures, and what we have done is we have created the interim National Infrastructure Protection Plan consistent with Homeland Security Presidential Directive 7, which directed us to develop a process to protect our critical infrastruc- tures.
And the interim National Infrastructure Protection Plan really lays out a framework, a risk management framework and a process for protecting the 17 infrastructures of this country, and I speak for only one of 17, but there are 17 infrastructures. We coordinate across the infrastructures. We develop process and tools. And we are the sector leads in certain infrastructures, for example, tele- communications, but we also work in interdependencies.
Inter- dependencies cross infrastructure. For example, interdependency of other infrastructures on power is an example. But we put in the process. We are identifying the assets. We want to assess those vulnerabilities of those assets. We are going to prioritize those assets in terms of the impact of any damage to those assets with those vulnerabilities, and then we will protect and we will establish metrics. I respectfully disagree with my colleague that the tele- communications infrastructure is as robust as is described against the EMP effect.
This is a nether card, which is an example. It is ubiquitous. There are millions of these in the communications in- frastructure. The Commission sponsored testing against a mod- erate level of EMP and it was damaged. The damage is indicated by the arrow that was indicated here. To have massive failure of this kind of an item would be a very serous blow to our commu- nications infrastructure. The blackouts example that was referred to, the blackouts, of course, lasted only a short period of time, and while it is true that there are nodes in the communications infrastructure that have 28 generators, one of the things I wanted to comment on when you raised the issue of fire is that we found it to he the trend that is happening in terms of the robustness of these generator facilities and battery facilities.
It is actually going in the wrong direction. There is a tension between the — in the fire codes, a concern about storing large quantities of flammable petroleum products to run these generators, and in many cases, in many cities, they are scal- ing back on the amount of petrol that is allowed to be stored for the generators. So the time that you can run these generators is getting less and less when really, the trend probably, if you take EMP seriously as a threat, ought to be going in the other direction to give you a more protracted capability to generate electricity.
If I could interject there just very briefly, Mr. Chair- man — Mr. The problem is not just simply fuel storage, which the Commission found was indeed an alarming trend, and that it is not only going in the wrong direction, but it is going in the wrong di- rection very rapidly in that not only are the allowed fuel depots be- coming smaller, but even the permission to start and operate the emergency generator systems is being strongly circumscribed by air pollution considerations.
There is very substantial concern that the apparent ability to backup electric power for the communications system is simply illusory and is becoming more so very swiftly. Excuse me. Go ahead. If I could continue, a third point is the super-EMP weapon, okay. What are you robust and hardened against? The no- tion of this new technology is basically a discovery of the EMP Commission. It was a consequence of reviewing foreign military writings and actually meeting with foreign military officers that there is a technology out there which our own experts have looked at and consider highly plausible and that this might already have been weaponized.
The threat, the wave form, both the strength of — the field strengths that you are talking about and the wave form are very different from those that we were thinking about during the Cold War. So I can see how one might know about some of the rec- ommendations generically from the Executive Summary, and then perhaps gotten some detail from some of our Commissioners, but 29 I have to be kind of skeptical about the idea that there is great fa- miliarity with a report that has not yet been delivered to either the Department of Defense or the Department of Homeland Security.
Is there a specific process by which the Commis- sion believes it can be in communication with the appropriate agen- cies, primarily DOE, DOD, and DHS, and a process, then, of review and action for planning would follow? Is there a fairly clear path there, or is that something probably that we should help to create and foster? Chairman, the Commission, as specified in the statute, is a creature of the Congress — Chairman Kyl.
But the specification was — the mandate to the Commission was to assess, find, recommend, and report, and that is what we are doing, and to the extent that the Congress has in mind activities or responsibilities beyond that, they need to instruct us. I think probably with your advice, and I will be in touch with you and will certainly be in touch with DHS, as well, probably try to put together a letter to all of the various heads of the departments concerned with a request that as soon as the — well, to transmit the reports as they currently are and make sure that as they are each completed, at the appropriate levels of classi- fication, that they are transmitted and that a process for agency interaction and response be created with a report back to the Con- gress.
Chairman, the basic issue there was that DHS, of course, did not exist when the Commission was mandated — Chairman Kyl. So the Congressional rectification really updating of the arrangements is eminently ap- propriate there. So the Congress taking the initiative to update the administra- tive arrangements would be eminently appropriate. It is one of the things that was a basic recommendation of the Commission. Wood has said, yes, because it does contrast with our relationship with the Department of De- fense, where the Commission findings have been briefed all the way up to the Wolfowitz level, to the Navy Secretary.
As Dr. The Department actually participated. They were actually deeply involved in the work of the Commission. We would hope that a similar relationship could evolve — needs to evolve with the Department of Homeland Security because that is where the primary threat is these days, actually. It is not — there are serious matters in our military forces, too, but primarily, it is a homeland security issue. Another part of that problem, of course, is that after this Com- mission delivers its report to Congress, which is going to happen as a consequence of giving briefings like this, its legislative man- date goes away and so the Commission ceases to exist.
Over on the House side, and we are hoping to convince people on the Senate side, as well, perhaps this is not a good thing to do at this juncture, that we need to extend the life of the Commission. We have a unique body of expertise here in this Commission and a blueprint that the Commission can help advise Congress on following and help advise the other departments and agencies of the government.
We are in the process on the House side of reintroducing legislation to give it a more homeland security kind of direction so that the departments can work together in the same productive way that we have worked with the Department of Defense. Again, because of the lack of currency of the legislation, there is no corresponding mandate to the Secretary for Homeland Security. That is correct. I appreciate all of that. I think this is a pro- pitious time, then, to hold this hearing to not only remind our- selves of the potential for a threat here, but also to get straight what we can do with these recommendations as you conclude your work with the classified version and as you advise the Department of Defense and report back to Congress, as well, how we can also expand the reach of these recommendations to the Department of Homeland Security as well as anyone else like DOE that would need to be aware of them, too.
In any event, infor- mally if not formally, we can certainly direct where the reports should go and set up some meetings so that we can continue to work on the fixes to the problem rather than just identifying the problem and leaving it dangle there. So unless there is anything else that you all would like to offer, let me just tell you that, on behalf of the Committee, what I will do is get together with my colleagues, draft up an approach to this 31 issue, the existence of the Commission, the issuances of the re- ports, both classified and non-classified, the inclusion of the De- partment of Homeland Security in the process, and anything else that we think we need to do to follow up on these recommenda- tions, and we will communicate with you all and then take what- ever action we think is necessary here in the Congress, as well.
Because of my time constraints, if not yours, I am going to termi- nate the hearing unless there is anything else that any of you would like to add. This has been most informative. And to the ex- tent that there are some fixes that can be put in place, we need to identify those and get about the business of doing it because this is, in fact, serious business. Chairman, I think you have very aptly summa- rized it. I thank you. We very much appreciate your service.
It would leave out many cases which really deserve the sentence of death. We may also consider whether the criterion of "intent to kill" which has been suggested by some can be suitably adopted so as to reduce the number of murders in which the sentence of death would be imposed. This is a "natural and usual" approach3. And if it can be found to be acceptable on the merits, its adoption would be very easy so far as the Indian Penal Code is concerned, because section of the Code, which defines murder, already puts it in a separate c1ause,--"if the act by which the death is caused is done with the intention of causing death.
We are afraid that the adoption of such a test might lead to serious anomalies. It would remove the pro- tection afforded by the sentence of death in quite a large number of cases. A person who, by means of explosives, derails a passen- ger train in reckless disregard of the probable conse- quences of his act, thereby causing death of numerous passengers, would be saved from the highest penalty, if the test of "intent to kill" is adopted. We may, in this connection, refer to certain passages in the Royal Commission's Report?
The more radical proposals, on the other hand, are primarily designed, not to clarify the existing law or to amend it in minor respects, but to limit the scope of murder substantially. According to the well- established judicial rule, every one must be pre- sumed to contemplate the probable consequence of his own act. Neither is there any difference between the direct intention to kill and the inten-. I See R. Report, pages and , paragraphs I4 and :5, and pages and , paragraphs 3 and 4.
If a person intends to kill and does kill another, or if, without absolutely intending to kill, he voluntarily inflicts any bodily injury known to be likely to cause death, being reckless whether death ensues or not, he ought in our opinion to be considered a murderer if death ensue. For prac-- tical purposes we can make no distinction between a man who shoots another through the head ex- pressly meaning to kill him, a man who strikes another a violent blow with a sword, careless whether he dies of it or not, and a man who, in- tending for some object of his own, to stop the passage of a railway train, eontrives an explosion of gunpowder or dynamite under the engine, hop- ing indeed that death may not be caused, but determined to effect his purpose whether it is so caused or not.
We find ourselves in entire agreement with the views expressed in these two Reports, which appear to us to be still valid. We should agree that there may not infrequently be cases where death re- sults from an act intended only to cause grievous bodily harm or from an act done with reckless indiffer- ence whether such harm is caused, in which the execu- tion of the capital sentence would not be justified, but the same will be true of cases where there was intent to kill.
Nor is there any injustice to the offender involved in the present law. There may be an intent to kill, and yet other factors may reduce the moral culpability of the crime', e. The test of intent to kill cannot, therefore, be adopted. Another View is, that the normal sentence for murder should be death, and the lesser sentence should be awarded only in the case of extenuating circumstances.
A third view is that the matter should be left to the discretion of the court. There is no strong majority in favour of any of these various views, and opinion is sharply divided. According to the first view, the normal sentence for murder should be imprisonment for life. That the normal punishment for murder should be imprisonment for life is also the view of a High Court I Cf. A High Court Judge' has stated that the normal punishment should be imprisonment for life, and that in aggravating circumstances the Court may award the sent- ence of death.
The aggravating circumstances, in his opir. Many replies suggesting that the normal sentence for murder should be imprisonment for life have been received from District and Session.. One of these replies states9 that actual judicial experience shows that the sentence of death is awarded in few cases in cases of murders, and hence there is no harm in providing that the normal sentence shall be imprisonment for life. Certain other District and Session Judges" and Additional Sessions Judges" are in favour of making imprisonment for life the normal sentence for murder.
In the reply of a District and Sessions Judges"-', it has been stated that imprisonment for life should be the normal sentence. The reply points out that after the amendment of section of the Code on Criminal Proce- dure, , in , the sentence is to be determined on the facts of the case. The reply also states that the court must state its reasons for awarding the sentence of death, and advance the following reasons for this suggestion On the other hand, the opposite View states that the normal sentence for murder should be death, and the lesser sentence should be awarded only when there are extenuating circumstances.
It is the View of the Chief Justice of a High Court", that if capital sentence is to serve its primary purpose of acting as a good deterrent, the normal sentence should be the capital sentence, though the lesser sentence of impri- sonment for life can be passed for adequate reasons as in the existing law. That the normal punishment should be death, is also the View of several High Court Judges".
It is the View of a State Government8. The view of a very senior Advocate of the Bombay High Court" is that the normal sentence on conviction of murder should be death, unless there are circumstances extenuating or palliating the offence. Aggravating as well as extenuating circumstances it is stated diifer, and are peculiar to each case.
A Home Secretary to State Govern. Some District and Sessions Judges have also ex- pressed the view that death should be the nomal punish- ment'. Some Members of Parliament have expressed the view that death should be the normal punishment? This is also the View of an Inspector-General of Police". Several others have expressed the view that the normal punishment should be death.
Amongst these are some District Bar Associations'. One reply" adds that where the case is heard by a Division Bench and one of the Judges expresses a dissent- ring view as to the offence or the sentence, the appropriate lesser punishment should be awarded. According to the third view, the matter should be left to the discretion of the court. This group comprises several categories, namely, those who belong to this group because they would like to emphasise the discretion of the court; those who take this View subject to their answers to other questions, particularly questions 4 and 5 ; and those who content themselves by merely disagreeing with the suggestion made in the question.
Many other replies are in favour of retaining the existing provisions, z'. Rep- lies which merely oppose the suggestion to provide that imprisonment for life shall be the normal sentence can be regarded as falling under this group. Apart from them, several replies point out that it is unwise to interfere with the discretion of the court in the matter of sentence.
A helpful elucidation of this View is found in the reply of one High Court'', and we quote the relevant por- tion But we are of the View that Capital Punishment should be awarded only in extreme cases of murder. Murders committed after cool calculation or with a bad motive attended by excessive cruelty or bestiality are inst- ances of such extreme cases. The reply of the Chief Justice of a High Court7 ex- presses the view, that there should be no such thing as a normal sentence, whether the capital sentence or the lesser sentence of imprisonment for life.
The reply makes four points-. Some of the replies which we have received under question 7 a or question 7 b imply that a "normal sen- tence" for murder exists even now. Thus, in the reply ofa High Court Judge', it has been stated that the "normal sen- tence" for the offence of murder is death sentence, and if there are extenuating circumstance then the lesser sen- tence may be awarded; existing proyisions, it is stated, are sufficient, and no change is necessary. In the reply of a State Government', it has been simply stated that the existing provisions are sufficient.
A State Government" has pointed out, that the sentence must be left to the discretion of the Judge, because in a given situation whether the death sentence or the lesser punishment to be imposed, must be a matter for the discretion of the Judge who decides the case. The law and practice are so Well-settled that it is unnecessary to make any change".
The reply of a Principal Judge of a City Civil Court and Sessions J udge5 emphasises that both the puni- shments should be regarded as normal punishments, with a discretion left to the court to award such punishment as the circumstances of the case warrant. The reply of a Judicial Officers' Association" states that it should be left to the Judge to decide whether capital sentence is to be passed or not. The reply adds that if one attempts to codify the law for imposing capital sen- tence for murder, and to enumerate the aggravating cir- cumstances, then the Judges are bound to consider the aggravating circumstances as one of the grounds for awarding capital punishment.
But, then, aggravating cir- cumstances in relation to a particular murder depend upon the facts of a particular case. A District and Sessions Judge" has stated that there should be nothing like a "normal" sentence for mur- der. The facts of the particular case should decide what is the appropriate sentence. The reply of another District and Sessions Judge' points out that there is a discretion in the court in award- ing the punishment, and if imprisonment for life is made the normal sentence, it would Whittle down the whole object of the present provisions and it would also do away with the object underlying capital punishment.
The reply of an Additional Sessions Judge4 states that the existing law is the only provision to meet the ends of justice. The reply adds that Indian Judges are slow in awarding the death sentence because of their spiritual background, and that they do seek grounds for awarding the lesser punishment of imprisonment for life. The reply opposes the making of a provision that the imprisonment for life should be the normal sentence, because, in that case, a practice may set in the Sessions courts of awarding only the sentence of imprisonment for life.
The reply of an Assistant Judge', while stating that at present the courts award the sentence of death in cases of deliberate murder, in cases where a murder is. What is an aggravating circumstance under one condition may not be so in other cases. The reply of the majority of the Presidency Magis- trates in a Presidency Town" has stated, that, considering the variety of human methods and motives for the com- mission of murders, it could be left to the court to consi- der what under the particular circumstance of each case is the proper sentence to award.
It is possible that in the absence of any law laying down the aggravating circums- tances under which the sentence should be death, the 'various judges trying murder cases might differ, and one I Association of Judicial Service Officers, S. But all the circum- stances cannot be provided for by any law, and, therefore, no provision in the law enlisting those aggravating cir- cumstances can be exhaustive.
The latter part of question 7 of our Questionnaire dealt with what should be aggravating circumstances. This was intended for reply only by those who were of the View that the normal sentence for murder should be im- prisonment for life, but in aggravating circumstances, the court may award the sentence of death.
Therefore, those who were of a different view on that point, z'. The replies on this point may be said to fall under three groups. This view has been expressed by one High Court'. One State Government? It has also been pointed out by a District and Ses- sions Judge that aggravating circumstances cannot be re-. As long as the ingenuity or brutality of a criminal cannot be put forth in certain terms, those circumstances also cannot be mentioned". Its reply to question 7 a states that the normal sentence shouli be death.
A City Civil Court and Sessions Judge' has also stated that extenuating circumstances cannot be formu- lated and must depend on the facts of each case. The second group comprises those who, while sug- gesting certain aggravating circumstances, make it clear in some form or other that the situations which they suggest are merely examples, and not intended to be ex- haustive.
The majority of the replies seem to fall under this group. A High Court Judge3 has suggested that the nor- mal rule relating to the discretion regarding sentence should be not to impose the sentence of death unless there are aggravating circumstances. Examples of aggravating circumstances given in his reply areenormity of the crime, the offence being cold--blooded and premeditated accompanied with unnecessary brutality, etc.
Another High Court Judge' has without a claim to exhaustiveness , stated that the following may be re- garded as factors which may be taken into consideration in determining whether the offence of murder has been committed in aggravating circumstances to justify the sentence of death. The factors which he has mentioned are But the reply to question 7 a states that the discretion of the court should continue. Another reply" gives, as examples, extreme cruelty or extreme depravity of mind, accompanied by extreme disregard of the interests of the society, premeditation, deliberate, cold-blooded, brutal murders and the like; the reply, however, makes it clear that this may be Counter- balanced by extenuating circumstances.
One of the Bar Councils states that the aggravat- ing circumstances would be such as unnecessary cruelty, cold-blooded act, planning and pre--meditation. A State Law Commission' has stated that aggrava- ting circumstances need not be catalogued. According to a District and Sessions Judge-'', no enumeration of aggravating circumstances can be exhaus- tive, but if it is a case of cool and calculated murder or murder brought about by design or by creating a feeling of confidence in the victim, then capital punishment would be justified.
According to a District and Sessions Judge in the State of Maharashtra'', aggravating circumstances depend upon the singular facts of each particular case, and can- not, therefore, be enumerated. The paramount considera- tion according to him should be the threat to the commu- nity if the lesser punishment were to be imposed. Another District and Sessions Judge' has stated that some of the aggravating circumstances can be des- cribed as We now come to the third group of replies, name- ly, those who state the aggravating circumstances without stating that what they suggest are mere examples.
Vari- ous suggestions have been made. For example, aggravat- ing circumstances have been listed as professional mur- der', malice, acquired habit, innate instinct and company in the commission of murderz, spoiling the chastity, pre- planned murder", motive of gain and advantage, cruelty and like conditions', and danger of further revengeful action'? Aggravating cir- cumstances would be cold-blooded murder, but the reply points out that very specialised opinion will have to be sought before coming to any conclusion that the circums- tances have been so aggravating that capital punishment has been called for.
According to the reply of Law Minister of a State', the normal sentence should be imprisonment for life, and the aggravating circumstances should be In the reply of the Law Minister of another State", it has been stated that, generally speaking, the aggravating I S. The reply, how- ever, takes care to point out that aggravating circumstances could be counter--balanced by extenuating circumstances.
In the reply of a Member of a State Legislative Council', emphasis has been placed while stating the aggravating circumstances on pre--planned, malicious, daring, organised and brutal murders. In the reply of a Member of a State Legislative Council'-', pre-meditated murder, dacoity combined with murder and group murders are enumerated as aggravat- ing circumstances.
In the reply of a Member of the State Legislature in the U. One reply5, though not strictly falling under ques-- tion 7 b , states that murdier itself is the highest aggravat- ing circumstance, and that by being overenient we have encouraged a state of affairs whereunder private venge- ance is fast replacing public retaliation. One murder, it is stated, is retaliated by another murder, and this vicious chain goes on, but in the courts it is not possible to prove that the particular murder is the result of a previous mur- der, and so on.
According to the reply of another District and Ses- sions Judge', aggravating circumstances would be mur- ders committed as a result of conspiracy, those committed for'fac1l1tating dacoity, robbery or theft, and murders Wh1Ch are committed without any extenuating reasons and with cold calculation. In the opinion of another District and Sessions Judge", the aggravating circumstances are--when death is caused in furtherance of a felony of violence; when death is caused to a person who comes to make a lawful arrest; heinous murder specially when after the commission of murder the dead body is disposed of in such a manner as not to get a chance of decent burial or cremation.
We shall now consider the question whether im- Whgther nor. If the sentence of death is to serve as a deterrent to the fullest extent, it will not be desirable to make it appear that the normal sen- tence for murder is imprisonment for life and death sen- tence is to be awarded only in extreme cases. Moreover, an enumeration or illustration of "aggravating circums- tances" will be open to the same criticism that the divi- sion of murders into categories is subject to3.
See paragraphs , supra. There are certain objections to the adoption of this course. Section 5 of the Code of Criminal Procedure, as it stood before the amendment of , re- quired the court to give reasons for imposing the lesser sentence. Though that sub-section did not say in so many words that the normal sentence for a capital offence shall be death, yet many courts had interpreted it as having that effectl. That provision was deleted in , and it would now require strong grounds to support a decision to insert the suggested provision.
Secondly, it would consti- tute a fetter on the discretion of the court, and we may note that a large number of replies received to question 4 of the Questionnaire are in favour of retaining the discre- tion. Thirdly, there appears to be some force in the argu- ment, that the highest penalty of the law should not be imposed as a matter of course. In a recent Bombay case2, the High Court consi- dererl in detail the effect of the amendment of section 5 , Criminal Procedure Code in The High Court took the view that the amendment did not affect the question regarding death sentence.
In its view, in regard to the exercise of the discretion, even section 5 , as it stood before the amendment, did not offer any guidance, and therefore the deletion of that portion of the section could not affect the exercise of discretion. It must also appear that it- is so exercised. This can be done if reasons for the exer- cise of the discretion are given in the order given in exer- cising the discretion.
Whether the statute requires it or not, reasons have to be given. The section could, there- fore, have no relevance on the decision itself. The court stated, that the view taken by the Supreme Court, namely, that unless there are extenuat- ing circumstances, the normal punishment for murder should be death, would prevail in spite of the amendment of in section 5 even though the Supreme Court case related to an oifence before the amendment.
Gourishankar, I 68 Born. Law Reporter : A. Theoar v. State of Madras , A. I S. The court cited certain Bombay decisions before the Amendment Where the View was taken that for murder the normal sentence is deathl It did not accept the argument of the counsel for the accused that the amendment of was intended to change the old posi- tion that death is the normal sentence for a capital offence.
It agreed with the decisions of the Allahabad" and Madras' High Courts on the point. In the Allahabad case, the View was taken that the amendment of section did not affect "the law regulating punishment under the Penal Code " and that the amendment related to the procedure and now courts are no longer required to elaborate the reasons for not awarding the death penalty, but they can- not depart from sound judicial considerations in prefer- ring the lesser punishment. In the Madras case, the Sessions Judge had not given any reason for imposing the lesser sentence. The High Court did not interfere with the sentence, as there was no application for enhancement.
The Bombay High Court's attention does not appear to have been drawn to an Andhra Pradesh case", holding that, after the amendment of , the theory that death is the normal sentence for capital offence does not hold good. The conflicting views as to whether, after the amendment of section 5 , Criminal Procedure Code - in , death sentence is the "normal sentence", are fur- ther illustrated by the case-law discussed in the under- mentioned decision".
The provision which we propose? Pandurang , A. State , A. Question 8 in our Questionnaire was as follows; ,,,,. Perhaps the largest number of replies fall under the first group, and suggest that there should be a provision in the law requiring the court to state reasons for im- posing the sentence of death or imprisonment for life. In the reply of a State Government", it has been stated that reasons are normally given in both cases, but that it would be desirable to insert a provision that the Judge should give the reasons for the sentence which he 1 A State Government, and Government of aUnion Territory.
See also reply of a Home Secretary, S. Minister in the Union, S. According to another State Government', the court ordinarily gives reasons, but, there is no objection to a provision as suggested. One State Governmentz, while not stating that a statu- tory provision is needed, has emphasized that when the matter is left to the judges it means that it must be judi- cially determined, based on reasons and on the facts of the case.
This is especially so when the decision is subject to appeal. Another State Government" is in favour of a provision requiring reasons in both cases. A High Court Judge5, while stating that the normal sentence for murder should be death, but in mitigating circumstances the court may award the lesser sentence, has expressed in these words his opinion as to the need for a provision requiring reasons to be given for both the sent- ence of death and the sentence of imprisonment for life. The Law Minister of another State is also in favour of such a provisionl. Several High Court Judges are in favour of such a provision?
It is also the view of a distinguished Member of the Rajya Sabha", and of several Members of State Legis- latures"', that reasons should be required to be given in both cases. According to a Judicial Officers' Association5, there should be a provision in the law requiring the court to state its reasons for imposing either sentence. In the reply of several District and Sessions J udges5, a provision requiring reasons for either sentence is favoured on the ground that this would furnish material to the Appellate Court to consider the reasons.
According to a District and Sessions Judge in the State of Maharashtra7, if the Judge is made to give rea- sons for the particular sentence which he wished to impose, there would be less chances of the imposing of the sentence being based on caprice, and the Appellate Court will have proper material to assess whether the reasons are in accord- ance with the principles or not.
A plea for requiring reasons is nothing better than an insistence upon the essential requirements of a judgment. It may be stated here that those who belong to the first group have advanced various arguments in support of a provision requiring statement of reasons.
It is stated that such a provision will enable the Appellate Court, when reviewing the quantum of punishment, to appreciate the correctness of the punishment". It is also stated that it will show that justice is done on the basis of satisfactory evidence and logic and reasonable conclusions". One reply" points out.
The second group comprises those who take the View that reasons should be given only where the sentence of death is imposed. The argument advanced in support of this view" is, that a provision, requiring statement of reasons for im- posing death sentence is necessary to ensure that the courts do not impose the extreme penalty arbitrarily Without a consideration of the extenuating circumstances mitigating the offence.
The third group comprises replies which take the view that reasons should be given where imprisonment for life is awarded. Thus, one reply has stated that, to the average man, the judiciary is next to God, and judgments of courts carry respect, honour and dignity, and that while imposing the death sentence reasons need not be given, but reasons should be given for the lesser punishment".
To this third group belong certain. Several District and Sessions Judges7 and otherss are of the view that reasons for imposing the lenient sentence should be given. The fourth and last group comprises those replies which take the View that there is no necessity for requir- ing reasons to be stated in either case. One High Court", one State Government". According to the Chief Justice of a High Court", the question of giving reasons for a particular sentence would arise only if that sentence is regarded as not the "normal" sentence.
According to him, there should be no such thing as a "normal" sentence for murder. The sentence is in the discretion of the court. It would not be proper for the law to select any particular sentence for the purpose of prescribing that reasons should be giver. It has been stated by the Home Minister of a State" that it would not be advisable to make the law rigid in the manner suggested.
The reply of an Advocate General" states that no special rule need be enacted for death sent- ence. Reasons, it is stated, must be given for awarding any sentence. Some replies state, that courts invariably give reasons, but no separate provision is necessary" Some District and Sessions Judges have expressed a view to the same effect". The replies to question 8 show a cgnsiderable body of opinion which is in favour of a provision requiring the court to state its reasons for imposing the punishment either of death or of imprisonment for life7.
Further, this would be a good safeguard to ensure that the lower courts examine the case elaborately from the point of View of sentence as from the point of view of guilt. It would also provide good material at the time when a recommendation for mercy is to be made by the court, or a petition for mercy is considered. We recommend the insertion of such a provision in the Code of Criminal Procedure, It is possible to think of an alternative, namely, that the court should be required to state its reasons only when the sentence of death is passed.
Or, the opposite alternative can be thought of, namely, the court should be required to give its reasons only where the sentence of imprisonment for life is passed. Neither of these alterna- tives can, however, be recommended. The adoption of S. I 2 3 A District Magistrate, S. No ; S. No Further, the adoption of the second alternative would mean1 the virtual restora- tion of section 5 of the Code of Criminal Procedure, What classes of persons should, in your opinion, be excluded from the sentence of death?
The replies received on this question1 mostly ex- press views about granting exemptions in respect of-. It will be convenient to deal with each category separately. But, before dealing with these categories, it would be useful to point out that there are certain replies which state that no statutory provision is necessary and that the matter should be left to the discretion of the Court Since clemency where extenuation can be shown is more usual than not, it is not necessary to classify persons as liable to be sentenced to death and as not liable to be so sentenced. According to the view expressed by the Chief Justice of a High Courtz, the matter should be left to the discretion of the courts because the age of the offender is always taken as a good ground for not passing the capital sentence, and as regards women , women are not ordi- narily sentenced to death except in certain cases of cold- blooded murders like murder by poisoning.
A High Court Judge3 has stated that it is not desir- able to exempt any particular classes of persons from the penalty of death, but the conventional standards re- garding awarding of death sentence operate quite satis- factorilyfor example, a pregnant woman or a child of immature or emotional age not being sentenced to death. According to several High Court Judges' no excep- tion is necessary, and no change is required in the present law. According to the Administration of a Union terri- tory5, discretion in the matter may be left to the courts.
A City Civil Court Judge in Bombay has stated that it will be highly dangerous to exclude women and children from death penalty, because intending criminals will then employ women and children to commit planned and calculated murders. The reply states that the em- ployment of children in the transportation and possession of illicit liquor is common, particularly in the city of Bombay. According to a District and Sessions Judge in the State of Maharashtra" no provision in law should be made for exempting particular classes of persons, because it would be unjust to lay down rules of law excluding certain S.
It is stated that it is not possible for the Legislature or. Several District and Sessions Judges also think that a statutory exemption is not necessaryl. The reply states that the courts do take into consideration the youth and sex of the offender, but it would not be a good public policy to pro- vide by law, that no matter howsoever cold-blooded, pre- meditated and brutal the murder is, the offender would not be punished with death only because of his youth or her sex.
According to a Bar Association', no exemption should be granted, because a murderer is a murderer whether a child or a woman, and the court should treat them alike. We may now take up the opinions expressed as to each category of persons proposed to be exempted. A State Law Commission5 has suggested that a person who has not attained the age of 18 years should not be sentenced to death, except in case of a murder after he has been convicted of a murder previously or while under- going a sentence of imprisonment for having committed a murder.
According to the Chief Justice of a High Court'', persons below the age of 21 may be excluded from the operation of the sentence of death. According to a High Court J udge", the death sent- ence should not e imposed on a person below Exemption for children has been favoured in the reply of a Minister of a State Government" on the ground that the brain of a child is supposed to be immature. Even murder is committed without thinking of any consequences. So this is a state of inno- cence and, therefore, death sentence may be too harsh a punishment.
According to the Law Minister of another State3, persons under the age of majority should be exempt. Some High Court Judges', a High Court5 and a State Government'', have replied that the death penalty should not be imposed on children below 18 years of age. Several other persons and bodies have also favour- ed the grant of exemption to children. Certain replies suggest the age of Cer- tain replies suggest the age of According to some District and Sessions Judges", persons below 21 should be exempt. The age of 20 has been suggested in certain re- plies". One reply" suggests that a person under the age I S.
A Home Secretary to State Government, 8. Some other replies' merely suggest that children should be exempted, but do not specify the age. As pointed out already'', some of the replies to question 9 are opposed to any statutory provision relating to the grant of exemption for any class. A few import- ant points may be stated. Thus, a State Government' has pointed out that if any provision is made in the law exempting particular categories of persons , a habitual criminal would employ the services of exempted persons to commit serious crimes.
One High Court5, while opposing the suggestion of grant of exemption to children, has stated that even in the absence of such exemption, the sentence of death is not likely to be passed for an offender below 18 except in rare or exceptional cases. A senior Advocate of the High Court of Bombay" is of the opinion that while the death sentence should not ordinarily be awarded to persons under 18 except in ex- tremely aggravated cases of murder, yet crimes of gross and brutal violence by young people have become extre- mely common, and any general exemption on the ground merely of age, regardless of other circumstances, might encourage this tendency to stab or shoot on the part of young persons for a slight cause.
The second category of persons which we may discuss is that of pregnant women. A large number of replies has suggested the exemption of such women from the death penalty. Such replies have been received from various sources, e. The reference seems to be to the case of Govz'ndaswamz', A. I95 Mad. The sentence of death was not, however, awarded n that case owing to a difference of opinion between the two Judges of the Bench which heard the matter.
One tate Government7 has suggested that women with small children should be exempted. As against this, a State Government" and a State Law Commission" regard the existing provisions of sec- tion , Code of Criminal Procedure as enough. And, as already noted" , a general opposition to exempting any class of persons is also evidenced in certain replies. Coming to the third category--women generally, Women we may note that several replies are in favour of exempt- ing women generally from capital punishment.
These re- plies have been received from various sources, e. Exemption for women has also been suggested by. A District and Sessions Judge in Maharashtras, who favours exemption of women has, however, expressed the apprehension that it might be regarded as unconstitutional. Certain District and Sessions Judges in other States are also in favour of exemption of women9. But many of the replies on this point are in the other direction, and oppose the suggestion to exempt women.
Women, it is stated", should not be protected as a rule, because some of the most col,-d-blooded murders are committed by women out of jealousy, desire for gain or vengeance. The reply of another High Court J udge'3 points out that the heinousness of a crime is not reduced merely by the fact that it is committed by a woman, and that there have been numerous cases in which women have been found guilty of murderning their husbands in cold-blood. Such women do not, it is stated, deserve any mercy. These re- plies are in addition to the general opposition to the grant of exemption to any class of persons evinced in many replies.
A lgistrict and Sessions Judge in Bihar. A High Court Judgel, who has opposed the grant of exemption to Women, has stated that women might get exemption either on the ground of age or general extenuat- ing circumstances, but women as such should not be ex- empted. He has stated that the popular notion that women are less likely to commit murders is not based on experience. Actually, some of the most cruel and preme- diated murders have been committed by women. A distinguished Member of the R'-ajya Sabha3 has stated that there should be no difference made between the sexes in the case of capital punishment.
A senior Member of the Bombay Bar' has express- sed this view, while opposing the exemption of women vgenerally If anything, a female killer is more brutal and malig- nant than a male murderer. It is not merely in fiction and drama that female friends of the type of Lady Macbeth commit or abet diabolical murders. Besides, the present generation of militant women might resent such discrimination as derogatory.