orm at all some regard must be had to the plight of the victim or his or her family by making provision for payment of compensation
While it is commonly accepted that these convicted of violations of the criminal law must pay their debt to society little emphasis is placed upon requiring offenders to pay their debt to their victims
These again are matters for the Parliament to Provide  CRIMINAL APPELLATE JURISDICTION Criminal Appeal No 512 of 1978
Appeal by Special Leave from the Judgment and Order dated 12 9 74 of the Allahabad High Court in Criminal Appeal No 50174
AND CRIMINAL APPEAL NO
513 of 1978 Appeal by Special Leave from the Judgment and Order dated 9 1 1978 Kerala High Court in Crl
A No 21377 and Ref
Trial No 377
AND CRIMINAL APPEAL NO
513 of 1978 Appeal by special leave from the Judgment and Order dated 28 9 77 of the Allahabad High Court in Criminal Appeal No 26173 and Reference No 677
R K Garg for the Appellant in Crl
A No 51378
section K Bagga Amicus Curiae for the Appellant in Crl
A51278 P K Pillai Amicus Curiae for the Appellant in Crl
A No 51178 D P Uniyal and M V Goswami for the State of UP KR Nambiar for the State of Kerela
The Judgment of Krishna Iyer and Desai JJ was delivered by Krishna Iyer J Sen J gave a dissenting opinion
KRISHNA IYER J THE DEADLY QUANDARY To be or not to be that is the question of lethal import and legal moment in each of these three appeals where leave is confined to the 89 issue of the propriety of the impost of capital penalty against which the brutal culprits desparately beseech that their dear life be spared by the Summit Court and the incarceratory alternative be awarded instead
There is as here a judicial dimension to the quasi Hamletian dilemma when a murder most foul demands of sentencing justice punitive infliction of death or the lesser punishment of life imprisonment since the Penal Code leaves the critical choice between physical liquidation and life long incarceration to the enlightened conscience and sensitized judgment of the Court
A narration of facts is normally necessary at this early stage but we relegate it to a later part assuming for the nonce the monstrosity the murder in each case
Is mere shock at the horrendous killing sufficient alibi to extinguish one more life de hors circumstances individual and social motivational and psychical  The crime and the criminal contemporary societal crisis opinions of builders and moulders of the nation cultural winds of world change and other profound factors spiritual and secular and above all constitutional inarticulately guide the Court s faculty in reading the meaning of meanings in preference to a mechanistic interpretation of section 302 IPC projected in petrified print from Macaulay s vintage mint
We banish the possible confusion about the precise issue before us it is not the constitutionality of the provision for death penalty but only the canalisation of the sentencing discretion in a competing situation
The former problem is now beyond forensic doubt after Jagmohan Singh  and the latter is in critical need of tangible guidelines at once constitutional and functional
The law reports reveal the impressionistic and unpredictable notes struck by some decisions and the occasional vocabulary of horror and terror of extenuation and misericordia used in the sentencing tailpiece of judgments
Therefore this jurisprudential exploration within the framework of section 302 IPC has become necessitous both because the awesome eitheror  of the Section spells out no specific indicators and law in this fatal area cannot afford to be conjectural
Guided missiles
with lethal potential in unguided hands even judicial is a grave risk where the peril is mortal though tempered by the appellate process
The core question the only question that occupies our attention within the confines of the Code is as to when and why shall capital sentence be pronounced on a murderer and why not in other cases
The penological poignancy and urgency of the solution is obvious since the human stakes are high and error even judicial error 1 Jagmohan Singh v State of Uttar Pradesh 1973 I SCC20
7 196SCI79 90 silences for ever a living being and despatches him to that undiscovered country from whose bourn no traveller returns  nor once executed can storied urn or animated bust back to its mansion call the fleeting breath 
The macabre irrevocability of the extreme penalty makes the sombre issue before us too important to be relegated as often happens to a farewell paragraph with focus on fright ful features of the crime and less stress on the crime doer and related factors
When human rights jurisprudence and constitutional protections have escalated to sublime levels in our country and heightened awareness of the gravity of death penalty is growing all over the civilised globe in our half century is it right to leave section 302 IPC in vague duality and value free neutrality Any academic who has monitored Indian sentencing precedents on murder may awaken to the overt ambivalence and covert conflict  among judges concerning continued resort to the death sentence  which according to Prof Blackshield  seems to minor the uncertainties and conflicts of values in the community itself 
This tangIed web of case law has been woven around the terse terms of section 302 IPC during the last hundred years
THE OLD TEXT AND THE NEW LIGHT Section 302
Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine
Such stark brevity leaves a deadly discretion but beams little legislative light on when the court shall hang the sentencee or why the lesser penalty shall be preferred
This facultative fluidity of the pro vision reposes a trust in the court to select
And discretionary navigation in an unchartered sea is a hazardous undertaking unless recognised and recognizable principles rational and constitutional are crystallised as interstitial legislation  by the highest court
The flame of life cannot flicker uncertain and so section 302 IPC must be invested with pragmatic concreteness that inhibits ad hominem Responses of individual judges and is in penal conformance with constitutional norms and world conscience
Within the dichtomous frame work of section 302 IPC upheld in Jagmohan Singh we have to evolve working rules of punishment bearing the markings of enlightened flexibility and societal sensibility
Hazy law where human life hangs in the balance injects an agonising consciousness that judicial error may 1 Prof A R Blackshield Associate Professor of Law University of New South Wales Capital Punishment in India The Impact of the Ediga Anamma Case July 1977
91 prove to be crime  beyond punishment 
And history bears testimony to reversal of Court verdict by Discovery of Time
The tragic speech in the Commons of former Home Secretary Chuter Ede makes ghastly reading 1 I was the Home Secretary who wrote on Evans  papers
The law must take its course
 I never said in 1948 that a mistake was impossible
I think Evans  case shows in spite of all that has been done since that a mistake was possible and that in the form in which the verdict was actually given on a particular case a mistake was made
I hope that no future Home Secretary which in office or after he has left office will ever have to feel that although he did his best and no one could accuse him of being either careless or inefficient he sent a man to the gallows who was not guilty as charged
 That is why we devote a whole judgment to what ordinarily is a brief finale at the end of a long opinion
ln Ediga Annamma2 this Court did set down some working formulae whereby a synthesis could be reached as between death sentence and life imprisonment
Notwithstanding the catalogue of grounds warranting death sentence as an exceptional measure life  being the rule the judicial decisions have been differing and dithering at various levels with the result the need for a thorough re examination has been forced on us by counsel on both sides
Prof Blackshield makes an acid comment 3 The fact is that decisions since Ediga Anamma have displayed the same pattern of confusion contradictions and aberrations as decisions before that case 
To test this I have abstracted from the All India Reporter seventy cases in which the Supreme Court has had to choose between life and death under Section 302 the last twenty five reported cases before the date of Ediga Anamma and the next forty five including of course Ediga Anamma itself on or after that date But where life and death are at stake inconsistencies which are understandable may not be acceptable
The hard evidence of the accompanying kit of cases compels the 1 The Crusade against Capital Punishment in Great Britain by Elizabeth Orman Tuttle 1961 p 96
2 Ediga Annama vs State of Andhra Pradesh  3 Prof A R Blackshield Associate Professor of Law University of New South Wales Capital Punishment in India
The Impact of Ediga Annamma
Case July 1977
92 conclusion that at least in contemporary India Mr Justice Douglas  argument in Furman vs Georgial is correct that arbitrariness and uneven incidence are inherent and inevitable in a system of capital punishment and that therefore in Irritant constitutional terms and in spite of Jagmohan Slngh the retention of such a system necessarily violates Article 14 s guarantee of equality before the law
 The author further observes One source of the confusion seems to have been an under current of disagreement as to the correctness and applicability of the argument in Ediga Anamma
But the only direct challenge has been in Bishan Dass vs State of Punjab AIR 1975 SC 573 January 10 1975 Case 52 and with respect the challenge there seems clearly misconceived
 What a study of the decisions of the higher courts on the life or death choice shows is that judicial impressionism still shows up and it is none too late to enunciate a systematised set of criteria or at least reliable beacons Ediga Annamma supra in terms attempted this systematisation Let us crystallise the positive indicators against death sentences under Indian Law currently
Where the murderer is too young or too old the clemency of penal justice helps him
Where the offender suffers from socio economic psychic or penal compulsions insufficient to attract a legal exception or to down grade the crime into a lesser one judicial com mutation is permissible
Other general social pressures war ranting judicial notice with an extenuating impact may in special cases induce the lesser penalty
Extraordinary features in the judicial process such as that the death sentence has hung over the head of the culprit excruciatingly long may persuade the Court to be compassionate
Like wise if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive ie combining the murder provision with the unlawful assembly provisione again if the accused has acted suddenly under another s instigation without premeditation perhaps the court may humanely opt for life even life where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime
On the other hand the weapons used and the manner of their use the 1 408 U section at 238
93 horrendous features of the crime and hapless helpless state A of the victim and the like steel the heart of the law for a sterner sentence
We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society
A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible abandoning retributive ruthlessness amending the deterrent creed and accepting the trend against the extreme and irrevocable penalty of putting out life  l From what we have said and quoted and from the persistence Or forensic divarication it has now become necessary to have a second look at the life versus death question not for summarising hitherto decided cases and distilling the common factors but for applying the Constitution to cut the Gordian knot
The Suprema lex must set the perspective and illumine the meaning of subordinate statutes especially where some provisions contain obfuscatory elements for our founding fathers have not hammered out a merely pedantic legal text but handed down a constellation of human values cherished principles and spiritual norms which belight old codes and imperial laws and impel new interpretations and legislations to tune up the New Order
The Indian Penal Code must be sensitized by the healing touch of the Preamble and Part lII
Wrote Wheeler J 2 That court best serves the law which recognises that the rules of law which grew up in a remote generation may in the fullness of experience be found to serve another generation badly and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society  Benjamin N Cardozo said 3 If judges have woefully misinterpreted the mores of their day or if the mores of their day are no longer those of ours they ought not to tie in helpless submission the hands of their successors
 Such a solution to the deathlife alternatives where the Code leaves the Judge in the cold has its limits Justice Homes put his view pithily when he said that judges make law interstitially that they are confined from molar to molecular motion
Justice Frankfurter puts 1 Ediga Annamma vs State of A P 1974 4 SCC 443 at 453
2 Dwy vs Connecticut Co  99
3 The Nature of the Judicial Process by Benjamin N Cardozo
p 152
94 it more colloquially saying that judges make law at retail legislators at wholesale  l Therefore it is no heresy to imbibe and inject the social philosophy of the Constitution into the Penal Code to resolve the tension between the Past and the Present
QUO VADIS DISCRETIONARY DEATH SENTENCE  lndian Justice and the constitutional order are centuries ahead of the barbarities of Judge Jeffreys of Bloody Assizes  fame and ideologically away from the years of imperial butchery of Indian uprising when the Penal Code was drafted
Since Law reflects Iife new meanings must permeate the Penal Code
The deprivation of life under our system is too fundamental to be permitted save on the gravest ground and under the strictest scrutiny if Justice Dignity Fair Procedure and Freedom are creedally constitutional
So it is that in this bunch of appeals the court is called upon by counsel for the appellants to repel sentence by hunch and to lay down broad norms and essential principles as beacon lights which make the law of murder in the sentencing sector most restrictive and least vagarious
More illumination and closer examination of the provisions viz s302 in the larger humanist context and constitutional conspectus is necessitous
Legal justice must be made of surer stuff where deprivation of life may be the consequence
So we have heard a wider range of submissions and sought the amicus  services of the learned Solicitor General
An intervener Committee for Abolition of Death Penalty interested in abolition of death penalty has submitted through Dr L M Singhvi some material
We record our appreciation af the assistance given by the former and take due note of the views presented by the latter
Light not heat is welcome from any source in aid of judicial justice
We are cognizant of the fact that no inflexible formula is feasible which will provide a complete set of criteria for the infinite variety of circumstances that may affect the gravity of the crime of murder as pointed out by Palekar J in Jagmohan Singh supra
The learned Judge further observed The impossibility of laying down standards is at the very core of the criminal law as administered in India which in vests the judges with a very wide discretion in the matter of fixing the degree of punishment
The discretion in the matter of sentence is as already pointed out liable to be corrected  by superior courts p 35 1 Social Justice Ed
by Richard B Brandt p 109 95 What is important to remember is that while rigid prescriptions and random prescriptions which imprison judicial discretion may play tricks with justice the absence altogether of any defined principles except a variorum of rulings may stultify sentencing law and denude is of decisional precision Well recognised principles  is an elegant phrase
But what are they when minds differ even on the basics  Fluctuating facts and keleidoscopic circumstances bewildering novelties and unexpected factors personal vicissitudes and societal variables may defy standard setting for all situations but that does not mean that humane principles should be abandoned and blanket discretion endowed making life and liberty the plaything of the mentality of human judges
Benjamin Cardozo has pricked the bubble of illusion about the utter objectivity of the judicial process 1 I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments
Even these forces are seldom fully in consciousness
They lie so near the surface however that their existence and influence are not likely to be disclaimed
Deep below consciousness are other forces the likes and the dislikes the predilections and the prejudices the complex of instincts and emotions and habits and convictions which make the man whether he be litigant or judge
 Section 302 is silent so the judges have to speak because the courts must daily sentence
Merely to say that discretion is guided by wellrecognised principles shifts the issue to what those recognised rules are
Are they the same as were exercised judicially when Bhagat Singh was swung into physical oblivion  No The task is to translate in new terms the currently consecrated principles informed by tradition methodized by analogy disciplined by system and subordinated to the primordial necessity of order in social life 
The error of parallax which dated thought processes through dusty precedents may project needs to be corrected
That is the essay we undertake here
Moreover the need for well recognised principles to govern the deadly  discretion is so interlaced with fair procedure that unregulated power may even militate against article 21 as expounded in Maneka Gandhi s case2 an aspect into which we do not enter here
Judicial absolutism or ad hocism is anathema in our constitutional scheme
It 1 The Nature of the Judicial Process by Benjamin N Cardozo p 167
2 Maneka Gandhi vs Union of India 1978 I SCC 248
2 Maneka Gandhi v Union of India 1978 1 SCC248 96 has been said that a judge untethered by a text is a dangerous instrument  and we may well add judge power uncanalised by clear principles may be equally dangerous when the consequence of his marginal indiscretion may be horrific hanging of a human being until he be dead
Palekar J himself accepted that well recognised principles must govern sentencing discretion
The precise criteria which constitute and the normative nature of those principles did not directly fall for decision as that case proceeded on the basis that the lower courts had rightly exercised the sentencing discretion
The precise and only issue that was mooted and decided in Jagmohan Singhl was the constitutionality of section 302 IPC and the holding was that the death sentence imposed after trial in accordance with procedure established by law is not unconstitutional 
The acceptance of the invulnerability of discretionary power does not end the joureney it inaugurates the search for those well recognised principles  Palekar J speaks of in the Jagmohan case
Incidental observations without concentration on the sentencing criteria are not the ratio of the decision
Judgments are not Bible for every line to be venerated
When the legislative text is too bald to be self acting or suffers zigzag distortion in action the primary obligation is on Parliament to enact necessary clauses by appropriate amendments to section 302 IPC
But if legislative undertaking is not in sight judges who have to implement the Code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles even if it may appear to possess the flavour of law making
Lord Dennings observations are apposite Many of the Judges of England have said that they lo not make law
They only interpret it
This is an illusion which they have fostered
But it is a notion which is now being discarded everywhere
Every new decision on every new situation is a development of the law
Law does not stand still
It moves continually
Once this is recognised then the task of the Judge is put on a higher plane
He must consciously seek to mould the law so as to serve the needs of the time
He must not be a mere mechanic a mere working mason laying brick on brick without thought to the overall design
He must be an architect thinking of the structure as a whole building for society a system of law which is strong durable and just
It is on his work that civilised society itself depends 1 The Supreme Court of India A Socio Legal Critique of its Juristic Techniques by Rajeev Dhavan Foreword by Lord Denning M R 97 The Court s tryst with the Constitution obligates it to lay down A general rules not a complete directory which will lend predictabilily to the law vis a vis the community and guide the judiciary in such a grim verdict as choice between life and death
The right to life in our constitutional order is too sacred to be wished away without so much as Directive Principles for its deprivation save sweeping judical discretion and reference for confirmation or appellate review_ the know how for exercise of either being left to the assumed infallibility of the curial process in the face of the daily reality that there are cxtreme variations among judges themselves on when  and why  the extreme penalty shall or shall not be inflicted
Currently the welter of the British Indian and post Independence decisions and the impact of laconic legislative changes in the Criminal Procedure Code the competition among the retributive deterrent the reformative and even the existentialist theories of punishment and of statistical studies and sociological and cultural winds settle the lethal fate of the living man in the cage
Law must be honest to itself
Is it not true that some judges count the number of fatal wounds some the nature of the weapons used others count the corpses or the degree of horror and yet others look into the age or sex of the offender and even the lapse of time between the trial court s award of death sentence and the final disposal of the appeal  With some judges motives provocations primary or constructive guilt mental disturbance and old feuds the savagery of the murderous moment or the plan which has preceded the killing the social milieu the sublimated class complex and other odd factors enter the sentencing calculus
Stranger still a good sentence of death by the trial court is sometimes upset by the Supreme Court because of Law s delays
Courts have been directed execution of murderers who are mental cases who do not fall within the McNaghten rules because of the insane fury of the slaughter
A big margin of subjectivism a preference for old English precedents theories of modern penology behavioural emphasis or social antecedents judicial hubris or human rights perspectives criminological literacy or fanatical reverence for outworn social philosophers buried in the debris of time except as part of history this plurality of forces plays a part in swinging the pendulum of sentencing justice erratically
Therefore until Parliament speaks the court cannot be silent
Hopefully s302 l
PC is being amended at long last but it is only half way through as the Rajya Sabha proceedings show
We will revert to it later
98 Prof Blackshield on an analytical study of Indian death sentence decisions has remarked with unconventional candour But where life and death are at stake inconsistencies which are understandable may not be acceptable His further comments are noteworthy The fact is that in most cases where the sentence of death under S302 is confirmed by the Supreme Court there is little or no discussion of the reasons for confirmation
Sometimes there is a brief assertion of no extenuating circumstances which seems to imply that the Court is making its own discretionary judgment at other times there is a brief assertion of no ground to interfere which seems to imply that the Court is merely reviewing the legitimacy of the High Court s choice of sentence
The result is to obfuscate probably beyond any hope of rationalisation the analytical issues involved
supra The twists and turns in sentencing pattern and the under emphasis on the sentencee s circumstances in decided cases make an in depth investigation of the principles  justifying the award of death sentence a constitutional duty of conscience
This Court must extricate until Parliament legislates the death sentence sector from judicial sub jectivism and consequent uncertainty
As Justice Cardozo in The Nature of the Judicial Process bluntly states 1 There has been a certain lack of candor in much of the discussion of the theme or rather perhaps in the refusal to discuss it as if judges must lose respect and confidence by the reminder that they are subject to human limitations if there is anything of reality in my analysis of the judicial process they do not stand aloof on these chills and distant heights and we shall not help the cause of truth by acting and speaking as if they do
The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by
 It is fair to mention that the humanistic imperatives of the Indian Constitution as paramount to the punitive strategy of the Penal code have hardly been explored by courts in this field of life or death  at the hands of the law
The main focus of our judgment is on this poignant gap in human rights jurisprudence  within the limits of the Penal Code impregnated by the Constitution
To put it pithily a world order voicing the worth of the human person a cultural legacy l pp
167 168 99 charged with compassion an interpretative liberation from colonial A callousness to life and liberty a concern for social justice as setting the sights of individual justice interact with the inherited text of the Penal Code to yield the goals desiderated by the Preamble and Articles 14 19 and 21
Nor can courts be complacent in the thought that even if they err the clemency power will and does operate to save many a life condemned by the highest court to death
For one thing the uneven politics of executive clemency is not an unreality when we remember it is often the violent dissenters patriotic terrorists desperadoes nurtured by the sub culture of poverty and neurotics hardened by social neglect and not the members of the Establishment or con formist class who get executed through judicial and clemency processes
Executive commutation is no substitute for judicial justice at best it is administrative policy and at worst pressure based partiality
In either case that court self condemns itself which awards death penalty with a sop to its conscience that the habitual clemency of Government will soften the judicial excess in sentence
If justice under the law justifies the lesser sentence it is abdication of judicial power to inflict the extreme penalty and extraneous to seek consolation in the possible benign interference by the President
The criteria for clemency are often different
We arc thus left with the necessity to decipher sentencing discretion in the deathlife situation
SENTENCING CYNOSURES Having stated the area and object of investigation we address ourselves to this grave penological issue purely as judges deciding a legal problem putting aside views philosophical or criminological one holds
But law in this area cannot go it alone and cross fertilisation from sociology history cultural anthropology and current national perils and developmental goals and above all constitutional currents cannot be eschewed
Let us leave law  a while and begin with drawing the backdrop with a lurid brush
Every sombre dawn a human being is hanged by the legal process the flag of humane justice shall be hung half mast
Such is the symbolic reverence the land of Gandhi should pay to human life haltered up by lethal law
The values of a nation and ethos of a generation mould concepts of crime and punishment
So viewed the lode star of penal policy to day shining through the finer culture of former centuries strengthens the plea against death penalty
Moreover however much judicially screened and constitutionally legitimated there is a factor of fallibility a pall that falls beyond recall and a core of sublimated cruelty implied in every death penalty
100 This is the starting point of our re appraisal of presidential and legislative texts with a view to evolving clearer criteria for choice between the Life Death Alternatives enacted into the Penal Code
We may for emphasis recall section 302 IPC at once laconic and draconic which reads s302
Punishment for murder
Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine
 We approach the resolution of the punishment predicament in a manner at once legal logical and criminological and impregnated with values constitutional
Therefore we will first study the significant legislative developments in the two interacting Codes and related par liamentary essays at change
Where broad conclusions emerge from such an investigation constitutional reinforcement may be sought
Since the Constitution is paramount and paramountcy is paramountcy its expansive humanism must overpower traditional terrorism  in the practice of sentencing
When this stage is reached and formulation of guidelines made we will consider the criminological foundations of theories of punishment which harmonise with the human rights jurisprudence of our cultural cosmos
Finally we will set down the salient cynosures for judges in their day to day labours
One sentencing aspect which has found prominent place in the Criminal Procedure Code 1973 but more often ignorantly ignored needs to be highlighted for future guidance
The cases actually de manding decision their factual matrices and the actual application of The principles we have formulated to the appeals under consideration are the decisive part of the judgment
The sister Codes the Indian Penal Code and the Criminal Procedure Code are interwoven into the texture of sentencing
So much so the various changes in s367 of the Procedure Code 1898 and its re incarnation in s354 of the Code of 1973 impact on the inter pretation of section 302 of the Penal Code
The art of statutory construction seeks aid from connective tissues as it were of complementary enactments
This mode offers a penological synthesis Parliament legislatively intended
From this angle we may examine the history of the amendments to the Procedure Code in so far as they mould  the sentencing discretion vested by section 302 IPC Vintage words adapt their semantic content with change in Society s thoughtways and people s mores
Linkwise Law Life mutuaIity moulds judicial construction
So when a nineteenth century Code 101 with vital impact on life and liberty falls for examination in the last quarter of the twentieth century criminological developments finds their way into the process of statutory decoding
This is obviously permissible even necessary
A progressive construction which up dates the sense of statutory language has been adopted in Weems vs United States1 and commended by jurists
We may ask ourselves whether the Procedure Code which intertwines with the Penal Code lends discretionary direction Similarly a brief suruey of the trend of legislative endeavours may also serve to indicate whether the people s consciousness has been projected towards narrowing or widening the scope for infliction of death penalty
Current criminological theories the march of the abolitionist movement across the continents the national heritage and voice of the makers of modern India and parliamentary re thinking on reform of the Penal Code may also be indicators
In this setting let us rationalize and humanize the discretionary exercise under s302 IPC Several attempts have been made to restrict or remove death penalty under section 302 but never even once to enlarge its application
Parliamentary pressure has been to cut down death penalty although the section formally remains the same and is very nearly being wholly recast benignly
The cue for the Court is clear
In 1931 an abolition bill was introduced in the Legislative Assembly by Gaya Prasad Singh but a motion for circulation of the bill was defeated after it was opposed by the government
The pattern after independence has been much the same
In 1956 a bill introduced in the Lok Sabha by Mukund Lal Agarwal was rejected after government opposition
In 1958 a Resolution for abolition moved in the Rajya Sabha by Prithvi Raj Kapur was withdrawn after debate
Its purpose had been served said Shri Kapur
The ripples are created and it is in the air Rajya Sabha Debates April 25 1958 Cols444 528
In 1961 a further Resolution moved in the Rajya Sabha by Mrs Savitry Devi Nigam was negatived after debate
In 1962 however Resolution moved in the Lok Sabha by Raghunath Singh received more serious attention Lok Sabha Debates April 21 1962 Cols307 365
The Resolution was withdrawn but only after the government had given an undertaking that a transcript of the debate would be forwarded to the Law Commission for consi 102 deration in the context of its review of the Penal Code and the Criminal Procedure Code
The result was a separate Law Commission Report on Capital Punishment submitted to the government in September 1967
 supra At pages 354 55 the Law Commission summarized its main conclusions as follows It is difficult to rule out that the validity of or the strength behind many of the arguments for abolition
Nor does the commission treat lightly the argument based on the irrevocability of the sentence of death the need for a modern approach the severity of capital punishment and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values
Having regard however to the conditions in India to the variety of the social upbringing of its inhabitants to the disparity in the level of morality and education in the country to the vastness of its area to the diversity of its population and to the paramount need for main taining law and order in the country at the present juncture India cannot risk the experiment of abolition of capital punishment
 Currently there is a Bill introduced in the Lok Sabha for total abolition
The most meaningful contribution to human rights legality  in the terminal  territory of punitivity is the parliamentary amendment to s302 IPC half way through and if we may say so with respect half fulfinling both the humanist quintessence of the Constitution and may be the creed of the Father of the Nation
Gandhiji long ago wrote in the Harijan God Alone Can Take Life Because He Alone Gives it We will dwell on this Indian Penal Code Amendment Bill 1972 passed by the Rajya Sabha in 1978 later in this Judgment but mention this seminal event as a kindly portent against the homicidal  exercise of discretion often an obsession with retributive justice in disguise
And the parliamentary prospects to the extent relevant to judicial discretion disappoint those who are restless if murder is divorced from death penalty
The Future shapes the Present on occasions and therefore we take note of this big change in the offing
Section 302 as now recast by the Rajya Sabha reads 302
1 Whoever commits murder shall save as otherwise vided in sub section 2 be punished with imprisonment for life and shall also be liable to fine
103 2 Whoever commits murder shall a if the murder has been committed after previous planning and involves extreme brutality or b if the murder involves exceptional depravity or c if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed i while such member or public servant was on duty ii in consequence of anything done or attempted to be done by such member of public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant as the case may be or had ceased to be such member or public servant or d if the murder is of a person who had acted in the lawful discharge of this duty under section 43 of the Code of Criminal Procedure 1973 or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under section 37 or section 129 of the said Code or e if the murder has been committed by him while under sentence of imprisonment for life and such sentence has become final be punished with death or imprisonment for life and shall also be liable to fine
3 Where a person while undergoing sentence of imprisonment for life is sentenced to imprisonment for an offence under clause e of sub section 2 such sentence shall run consecutively and not concurrently1 Maybe the fuller and finer flow of the constitutional stream of human dignity and social justice will shape the provision more reformatively
Suffice it to say that the battle against death penalty by parliamentary action is gaining ground and those who do live in the ivory tower and Judges hopefully do not will take cognizance of this compassionate trend
The inchoate indicators gatherable from the direct reforms of death penalty take us to the next neon sign  from the changes in the 104 Procedure Code
Section 302 IPC permits death penalty but s354 3 of the Procedure Code 1973 processes the discretionary power
The central issue of deathlife discretion is not left naked by the Procedure Code which by necessary implication has clothed it with pro life language
The legislative development through several successive amendments has shifted the punitive centre of gravity from life taking to life sentence
To start with section 3675 obligated the court to state the reason why sentence of death was not passed 
In other words the discretion was directed positively towards death penalty
The next stage was the deletion of this part of the provision leaving the judicial option open
And then came the new humanitarian sub section section 354 3 of the Code of 1973 whereby the dignity and worth of the human person under scored in the Constitution shaped the penal policy related to murder
The sub section provides When the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years the judgment shall state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sentence emphasis added Thus on the statutory side there has been a significant shift since India became free
In practice the effect of the pre 1955 version is that while the former rule was to 
sentence to death a person convicted for murder and to impose the lesser sentence for reasons to be recorded in writing the process has suffered a reversal now
Formerly capital punishment was to be imposed unless special reasons could be found to justify the lesser sentence
The 1955 amendment removing the requirement had left the courts equally free to award either sentence
Finally with the new 1973 provision a great change has overtaken the law The unmistakable shift in legislative emphasis is that life imprisonment for murder is the rule and capital sentence the exception to be resorted to for reasons to be stated
It is obvious that the disturbed conscience of the State on the vexed question of legal threat to life by
way of death sentence has sought to express itself legislatively the stream of tendency being to wards cautious partial abolition and a retreat from total retention
 The twin survey of attempted and half accomplished changes in the Penal Code and the statutory mutation pregnant with significance 105 wrought into the procedure Code definitely drives judicial discretion to a benign destination
The message of the many legislative exercises is that murder will ordinarily be visited only with life imprisonment and it is imperative that death sentence shall not be directed unless there exist special reasons for such sentence
 The era of broad discretion when Jagmohm s case was decided has ended and a chapter of restricted discretion has since been inaugurated
This is a direct response not merely to the humane call of the Constitution but also to the wider cultural and criminological transformation of opinion on the futility of the law of Life for Life  red in tooth and claw 
No longer did judicial discretion depend on vague principles 
It became accountable to the strict requirements of s3543 of the 1973 Code
By way of aside we may note that the consolation that judicial discretion in action is geared to justice is not always true to life
The discretion of a judge is said by Lord Camden to be the law of tyrants it is always unkonwn it is different in different men it is casual and depends upon constitution temper and passion
In the best it is of ten times caprice in the worst it is every vice folly and passion to which human nature is liable   1 Bouv
Law Dict
 Rawles  Third Revision p885 An appeal to a judge s discretion is an appeal to his judicial conscience
The discretion must be exercised not in opposition to but in accordance with established principles of law Griffin vs State Here is thus an appeal to the informed conscience of the sentencing judge not to award death penalty save for special reasons which have direct nexus with the necessity for hanging the murderer by law
The revolutionary import of the target expression in a death sentence situation viz the special reasons for such sentence demands perceptive exploration with emotional explosion or sadistic sublimation disguised as special reason 
Here we enter the penological area of lethal justice social defence and purpose oriented punishment
Before launching on the decisive discussion it is fair to be frank on one facet of the judicial process
To quote Richard B Brandt 106 Much of law is designed to avoid the necessity for the judge to reach what Holmes called his can t helps  his ultimate convictions or values
The force of precedent the close applicability of statute law the separation of powers legal presumptions statutes of limitations rules of pleading and evidence and above all the pragmatic assessments of fact that point to one result whichever ultimate values be assumed all enable the judge in most cases to stop short of a resort to his personal standards
When these prove unavailing as is more likely in the case of courts of last resort at the frontiers of the law and most likely in a supreme constitutional court the judge necessarily resorts to his own scheme of values
It may therefore be said that the most important thing about a judge is his philosophy and if it be dangerous for him to have one it is at all events less dangerous than the self deception of having none
 THE CODES THE CONSTITUTION AND THE CULTURAL BACKDROP Primarily we seek guidelines from the two Codes in the omnipresence and omnipotence of the over arching Constitution
The Indian cultural current also counts and so does our spiritual chemistry based on divinity in everyone catalysed by the Buddha Gandhi compassion Every saint has a past and every sinner a future  strikes a note of reformatory potential even in the most ghastly crime
This axiom is a vote against death  and hope in life 
Many humane movements and sublime souls have cultured the higher consciousness of mankind chased death penalty out of half the globe and changed world view on its morality
We will in the culminating part of our judgment cull great opinions to substantiate this assertion but content here with pointing to their relevance as part of the conspectus
Criminologists have elaborately argued that death  has decisively lost the battle as the dominant paradigm and even in our Codes has shrunk into a weak exception
Even so what are these exceptional cases Not hunch or happen stance but compelling grounds lest the Chancellor s foot  syndrome reappear in different form
So let us examine the grounds in this new sheen
An easy confusion is over stress on the horror of the crime and the temporary terror verging on insane violence the perpetrator displays to the exclusion of a host of other weighty factors when the scales are to settle in favour of killing by law the killer who resorts to unlaw
107 Speaking illustratively is shocking crime without more good to justify the lethal verdict Most murders are horrifying and an adjective adds but sentiment not argument
The personal story of an actor in a shocking murder if considered may bring tears and soften the sentence
He might have been a tortured child an illtreated orphan a jobless starveling a badgered brother wounded son a tragic person hardened by societal cruelty or vengeful justice even a Hamlet or Parasurama
He might have been angelic boy but thrown into mafia company or inducted into dopes and drugs by parental neglect or moraly mentally retarded or disordered
Imagine a harijan village backed out of existence by the genocidal fury of a kulak group and one survivor days later cutting to pieces the villain of the earlier outrage
Is the court in error in reckoning the prior provocative barbarity as a sentencing factor Another facet
Maybe the convict s poverty had disabled his presentation of the social milieu or other circumstances of extenuation in defence
Judges may be of moods soft or severe their weaknesses may be sublimated prejudices their sympathies may be persona hyper sensitivity
Did not Lord Camden one of the greatest and purest of English judges say that the discretion of a judge is the law of tyrants it is always unknown it is different in different men it is casual and depends upon constitution temper and passion
In the best it is oftentimes caprice in the worst it is every vice folly and passion to which human nature can be liable State vs Cummings 36 Mo263 278 1865 When life is at stake can such frolics of fortune play with judicial veriest The nature of the crime too terrible to contemplate has often been regarded a traditional peg on which to hang a death penalty
Even Ediga Annamma supra has hardened here
But murder most foul  is not the test speaking scientifically
The doer may be a patriot a revolutionary a weak victim of an overpowering passion who given better environment may be a good citizen a good administrator a good husband a great saint 
What was Valmiki once And that sublime spiritual star Shri Aurobindo tried once for murder but by history s fortune acquitted
If we go only by the nature of the crime we get derailed by subjective paroxysm Special reasons  must vindicate the sentence and so 108 must be related to why the murderer must be hanged and why life imprisonment will not suffice
Decided cases have not adequately identified the manifold components of comprehensive sentencing
Resultantly what is regarded as decisive is only relevant and what is equally telling remains untold
For reasons of  special  grimness may be cancelled by juvenile justice
Brutality of the crime may be mollified at the level of sentencing justice by background of despair
Even a planned barbarity may be induced by an excessive obsession by one who could be a good person under other surroundings
Why the ghastly crime may in rare cases be due to a brain tumour
Myriad factors of varying validity may affect the death penalty either way
The criminal will be projected on the scene and examined from different angles since the punishment is on the person though for the offence
CAPITAL PENALTY AND THE CONSTITUTION In these pathless woods we must seek light from the Constitution regarding special reasons 
After all no Code can rise higher than the Constitution and the Penal Code can survive only if it pays homage to the suprema lex
The only correct approach is to read into s302 IPC and s3543 Cr
PC the human rights and humane trends in the Constitution
So examined the right to life and to fundamental freedoms is deprived when he is hanged to death his dignity is defiled when his neck is noosed and strangled
What does s302 do by death penalty to the sentence It finally deprives him of his fundamental rights
True fundamental rights are not absolute and may be restricted reasonably even prohibited totally if social defence compels such a step
Restriction may expand into extinction in extreme situations
see Narendra Kumar Punishment by deprivation of life or liberty must be validated by articles 21 14 and 19 the first guarantees fair procedure the second is based on reasonableness of the deprivation of freedom to live and exercise the seven liberties and the last is an assurance of non arbitrary and civilized punitive treatment
But in the connotation of these and other Articles of Part III the social justice promise of Part IV and the primordial proposition of human dignity set high in the Preamble must play upon the meaning
Crime and penal policy have to obey the behests set out above and we may gain constitutional light on the choice of life  or death  as appropriate punishment
Article 14 surely ensures that principled sentences of death not arbitrary or indignant capital penalty shall be imposed
Equal protection emanates from equal principles in 109 exercise of discretion
In other words the constraint of consistency and the mandate against unreasoning disregard of material circumstances are implicit lest discretion attracts the acrid epigram of judicial caprice
The dignity of the individual shall not be desecrated by infliction of atrocious death sentence merely because there is a murder proved although crying circumstances demand the lesser penalty
To exemplify supposing a boy of fifteen incited by his elder brothers chases with them a murderer of their father and after hours of search confronts the villain and vivisects him in blood thirsty bestiality
Do you hang the boy blind to his dignity and tenderness intertwined We mean to illustrate the applicability not to exhaust the variables
Even here we may make it clear that equality is not to be confounded with flat uniformity
The element of flexibility and choice in the process of adjudicating is precisely what justice requires in many cases
Flexibility permits more compassionate and more sensitive responses to differences which ought to count in applying legal norms but which get buried in the gross and rounded off language of rules that are directed at wholesale problems instead of particular disputes
Discretion in this sense allows the individualization of law and permits justice at times to be hand made instead of mass produced
In urging that discretion is the effective individualizing agent of the law Dean Pound pointed out that In proceedings for custody of children where compelling considerations cannot be reduced to rules determination must be left to no small extent to the disciplined but personal feeling of the judge for what justice demands 22 Syracuse LR 635 636 1
Every variability is not arbitrary
On the contrary it promotes rationality and humanity
Article 19 is a lighthouse with seven lamps of liberty throwing luminous indications of when and when only the basic freedoms enshrined therein can be utterly extinguished
The Judge who sits to decide between death penalty and life sentence must ask himself Is it reasonably  necessary to extinguish his freedom of speech of assembly and association of free movement by putting out finally the very flame of life It is constitutionally permissible to swing a criminal out of corporeal existence only if the 110 security of State and society public order and the interests of the general public compel that course as provided in article 192 to 6
They are the special reasons which s3543 speaks of
Reasonableness as envisaged in Art19 has a relative connotation dependent on a variety of variables cultural social economic and otherwise
We may give concrete instances at a later stage of this judgment but feel it necessary to state here that what is reasonable at a given time or in a given country or in a situation of crisis may not be the same as on other occasions or in other cultural climates
Indeed that is the unspoken but inescapable silent command of our constitutional system
So we search for guidelines within s302 IPC read with s354 Cr PC and find that ordinarily for murder a life term is appropriate save where special reasons  are found for resort to total extinction of the right to life and farewell to fundamental rights
Public order and social security must demand it
That is to say the sacrifice of a life is sanctioned only if otherwise public interest social defence and public order would be smashed irretrievably
Social justice is rooted in spiritual justice and regards individual dignity and human divinity with sensitivity
So such extra ordinary grounds alone constitutionally qualify as special reasons as leave no option to the court but to execute the offender if State and society are to survive
One stroke of murder hardly qualifies for this drastic requirement however gruesome the killing or pathetic the situation unless the inhere t testimony oozing from that act is irresistible that the murderous appetite of the convict is too chronic and deadly that ordered life in a given locality or society or in prison itself would be gone if this man were now or later to be at large
If he is an irredeemable murderer like a bloodthirsty tiger he has to quit his terrestrial tenancy
Exceptional circumstances beyond easy visualisation are needed to fill this bill
To repeat for emphasis death corporeal death is adieu to fundamental rights
Restrictions on fundamental rights are permissible if they are reasonable
Such restriction may reach the extreme state of extinction only if it is so compellingly reasonable to prohibit totally
While sentencing you cannot be arbitrary since what is arbitrary is per se unequal
As stated earlier you cannot be unusually cruel for that spells arbitrariness and violates Art14
Douglas J made this point clear 1 111 There is increasing recognition of the fact that the basic theme of equal protection is implicit in cruel and unusual punishments A penalty  should be considered unusually  imposed if it is administered arbitrarily or discriminatorily
 They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on cruel and unusual punishments
 In Maneka Gandhi this Court wrote We must reiterate here what was pointed out by the majority in EPRoyappa vs State of Tamil Nadu 2 namely that from a positivistic point of view equality is antithetic to arbitrariness
In fact equality and arbitrariness are sworn enemies one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch
 You cannot inflict degrading punishment since the preamble speaks of dignity of the individual 
To stone a man to death is lynch law which breaches human dignity and is unreasonable under Art19 and unusually cruel and arbitrary under article 14
Luckily our country is free from that barbarity legally
The searching question the Judge must put to himself is what then is so extra ordinarily reasonable as to validate the wiping out of life itself and with it the great rights which inhere in him in the totally of facts the circle being drawn with ample relevancy
Social justice which the Preamble and Part IV Art38 hignlight as paramount in the governance of country also has a role to mould the sentence
But what is social justice Despite its shadowy semantics we may get its essence once we grasp the Third World setting the ethos and cultural heritage and the national goal or tryst with destiny
Balakrishna Iyer J in Sridharan Motor Service Attur vs Industrial Tribunal Madras and Others3 observed Concepts of social justice have varied with age and clime
What would have appeared to be indubitable social justice to a Norman or Saxon in the days of William the 112 Conqueror will not be recognised as such in England today
What may apear to be incontrovertible social justice to a resident of Quebec may wear a different aspect to a resident of Peking
If it could be possible for Confusius Manu Hammurabi and Solomon to meet together at a conference table I doubt whether they would be able to evolve agreed formulae as to what constitutes social justice which is a very controversial field
In countries with democratic forms of Government public opinion and the law act and react on each other
 We may add that in a developing country in the area of crime and punishment social justice is to be rationally measured by social defence and geared to developmental goals
Thus we are transported to the region of effective social defence as a large component of social justice
If the murderous operation of a die hard criminal jeopardizes social security in a persistent planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated
When then does a man hold out a terrible and continuing threat to social security in the setting of a developing country He does so if by his action he not only murders but by that offence poses a grave peril to societal survival
If society does not survive individual existence comes to nought
So one test for impost of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order
To illustrate if an economic offender who intentionally mixes poison in drugs professionally or willfully adulterates intoxicating substances injuriously and knowingly or intentionally causes death for the sake of private profit such trader in lethal business is a menace to social security and is therefore a violator of social justice whose extinction becomes necessary for society s survival
Supposing a murderous band of armed dacoits inteintionally derails a train and large number off people die in consequence if the ingredients of murder are present and the object is to commit robbery inside the train they practise social injustice and imperil social security to a degree that death penalty becomes a necessity if the crime is proved beyond doubt
There may be marginal exceptions or special extenuations but none where this kind of dacoity or robbery coupled with murder becomes a contagion and occupation and social security is so gravely imperilled that the fundamental rights of the defendant become a deadly instrument whereby many are wiped out and terror strikes community life
Then he reasonably  forefeits his fundamental rights and takes leave of life under the law
The style of violence and 113 systematic corruption and deliberately planned economic offences by corporate top echelons are often a terrible technology of knowingly causing death on a macro scale to make a flood of profit
The definition of murder will often apply to them
But because of corporate power such murderous depradations are not charged
If prosecuted and convicted for murder they may earn the extreme penalty for taking the lives of innocents deliberately for astronomical scales of gain
Likewise if a man is a murderer so hardened so blood thristy that within the prison and without he makes no bones about killing others or carries on a prosperous business in cadavers then he becomes a candidate for death sentence
If psychoanalysts and psychiatrists find him irredeemable in the reasonable run of time then his being alive will involve more lives being lost at his hands
If however he can be reformed in a few years  time by proper techniques of treatment imprisonment for life is good enough
But on the other hand if he is far too hadened that it has become his second nature to murder society cannot experiment with correctional strategy for when he comes out of jail he may kill others
Such an incurable murderer deserves to be executed under the law as it stands
Difficult to imagine though but even the bizarre may happen
The social setting the individual factors and like imponderables still remain to be spelt out
While the world is spiralling spiritually towards a society without State sanctioned homicide a narrow category may under current Indian societal distortions deserve death penalty although realistically the Law is held at bay by corporate criminals killing people through economic product environmental and like crimes
Death penalty functionally fails to operate in this area for reasons not relevant to unravel here but theta justice often claims human lives by hanging sentences by a distorted vision of the penological purposes anu results
What we mean is that the retention of death sentence in section 302 is rigorously restricted to these macro purposes of social defence state security and public order
But in practice purblind application of capital penalty claims victims who should not be hanged at all
The gross misapplication springs from professional innocence of the ideological constitutional criminological and cultural trends in India and abroad
Judicial decisions have hardly investigated these areas have conjured up grisly images of crime and criminal and fed on discarded doctrines of retribution and deterrence indulged in death awards blind to the socio spiritual changes taking place in theoretical foundations of criminology and sublime movements on our human 114 planet
The robes  are a repository of many rare qualities but shall add to its repertory latest developments in sentencing wisdom
A paranoid preoccupation with the horror of the particular crime oblivious to other social and individual aspects is an error
The fact that a man has been guilty of barbaric killing hardly means that his head must roll in the absence of proof of his murderous recidivism of incurable criminal violence of a mafia holding society in ransom and of incompatibility of peaceful co existence between the man who did the murder and society and its members
We may constellate some of the principles
Never hang unless society or its members may probably lose more lives by keeping alive an irredeemable convict
If rehabilitation is possible by long treatment in jail if deterrence is possible by life long prison terms capital sentence may be misapplied
Death penalty is constitutionalised by reading into section 3543 Cr
PC those special reasons  which validate the sentence as reasonably necessitous and non arbitrary as just in the special societal circumstances1 Social justice turns on culture and situation
We must listen even as judges who are human and not wholly free from sublimated violence to the words of great men condensed in the message to the Delhi Conference Against Death Penalty a few months ago
Lok Nayak Jai Prakash Narain said  To my mind it is ultimately a question of respect for life and human approach to those who commit grievous hurts to others
Death sentence is no remedy for such crimes
A more humane and constructive remedy is to remove the culprit concerned from the normal milieu and treat him as a mental case
I am sure a large proportion of the murderers could be weaned away from their path and their mental condition sufficiently improved to become useful citizens
In a minority of cases this may not be possible
They may be kept in prison houses till they die a natural death
This may cast a heavier economic burden on society than hanging
But I have no doubt that a humane treatment even of a murderer will enhance man s dignity and make society more human emphasis added Andrie Sakharov in a message to the Stockholm Conference on Abolition organised by Amnesty International last year did put the point more bluntly 2 115 I regard the death penalty as a savage and immoral institution which undermines the moral and legal foundations of a society
A State in the person of its functionaries who like all people are inclined to making superficial conclusions who like all people are subject to influences connections prejudices and egocentric motivations for their behaviour takes upon itself the right to the most terrible and irreversible act the deprivation of life
Such a State cannot expect an improvement of the moral atmosphere in its country
I reject the notion that the death penalty has any essential deterrent effect on potential offenders
I am convinced that the contrary is true that savagery begets only savagery
I am convinced that society as a whole and each of its members individually not just the person who comes before the courts bears a responsibility for the occurrence of a crime
I believe that the death penalty has no moral or practical justification and represents a survival of barbaric customs of revenge
Blood thirsty and calculated revenge with no temporary insanity on the part of the judges and therefore shameful and disgusting
 emphasis added Tolstoy wrote an article I cannot be silent protesting against death sentence where he said  Twelve of those by whose labour we live the very men whom we have depraved and are still depraving by every means in our power from the poison of vodka to the terrible falsehood of a creed we impose on them with all our might but do not ourselves believe in twelve of those men strangled with cords by those whom they feed and clothe and house and who have depraved and still continue to deprave them
Twelve husbands fathers and sons from among those upon whose kindness industry and simplicity alone rests the whole of Russian life are seized imprisoned and shackled
Then their hands are tied behind their backs lest they should seize the ropes by which are to be hung and they are led to the gallows
 Victor Hugo s words are not vapid sentimentalism We shall look upon crime as a disease
Evil will be treated in charity instead of anger
The change will be simple and sublime
The cross shall displace the scaffold 116 Reason is on our side feeling is on our side and experience is on our side Gandhiji wrote Destruction of individuals can never be a virtuous act
The evil doers cannot be done to death
Today there is a movement afoot for the abolition of capital punishment and attempts are being made to convert prisons into hospitals as if they are persons suffering from a disease Quotations from noble minds are not for decoration but for adaptation within the framework of the law
This Gandhian concept was put to the test without effects calamitous in the Chambal dacoits  cases  Take the classic example of the blood thirsty dacoits of Chambal
The so called dacoits in reality the Thakurs of Delhi in the 12th century were driven to the desolate Chambal Valley
They had no other recourse except to steal and if necessary murder for their survival
The 800 years injustice they suffered can be remedied only by their economic emancipation
Remember no one is born a criminal
Sarvodaya leaders Jayaprakash Narain and Vinoba Bhave won over dacoits with love affection and understanding something sophisticated automatic weapons failed to do
 We have unfortunately no follow up study of this experiment
Coming down to unhappy pragmatism death penalty is permissible only where reformation within a reasonable range is impossible
The confusion is simple but die hard
We lawfully murder the murderer not the murder by infliction of capital sentence
for which the strictest justification is needed if human ignity assured by the Constitution is not to be judicially dismissed as an expandable luxury
The deduction is inevitable that simply because a murder is brutal lex talionis must not take over nor humane justice flee
This proposition is tested in a crisis and the court s responsibility is heavy to satisfy itself that the nature of the crime is considered not for its barbarity as such but for its internal evidence of incurably violent depravity
We have dealt with this aspect earlier but repeat since it is horrendous or many lives have been lost
Our culture is at stake our Karuna is threatened our Constitution is brought into contempt by a cavalier indifference to the deep reverence for life and a superstitious offering of human sacrifice to propitiate the Goddess of Justice
117 These illustrations show that angry or scary irrationality has no place in awarding death sentence because reasonableness  and fairness are the touchstone of the constitutionality of capital penalty
Thus we hold that only in these very limited circumstances can the court award the extreme penalty
The terrible nature of the murder should not frenzy the court into necessary capital  penalty for its pertinence is only to the extent it helps to decide whether the prisoner if released after a few years in a penitentiary will reasonably be prone to continued killing
If life long imprisonment will prevent further killing he may be allowed to live with the limited fundamental rights allowed in a prison setting
Even in extreme cases one has to judge carefully whether the social circumstances personal remorse the excruciation of long pendency of the death sentence with the prisoner languishing in nearsolitary suffering all the time are not adequate infliction so as to make capital sentence too cruel and arbitrary and agonising not to violate article 14
Our penal pharmacopoeia must provide for the extreme remedy of extinction of the whole personality only in socially critical situations
This is spiritual social justice
Sometimes the thought is expressed that the life of the victim the misery of his family and the great pain cruelly caused are forgotton by those who advocate mercy for the brutal culprit
This is a fallacy fraught with miscarriage of justice
Punishment is not compensation like the blood money  of Islamic law
It is not lex talionis of retributive genre
To be strictly compensatory or retributive the same type of cruel killing must be imposed on the killer
Secondly can the hanging of the murderer bring the murdered back to life  The dull cold ear of death  cannot hear the cries or see the tears of the dying convict
There is a good case for huge fines along with life terms in sentences where the sum is realisable and payable to the bereaved
The Indian Penal Code fabricated in the imperial foundry well over a century ago has not received anything but cursory parliamentary attention in the light of the higher values of the National Charter which is a testament of social justice
Our Constitution respects the dignity and therefore the divinity of the individual and preservation of life of everyone s life
So the Court must permeate the Penal Code with exalted and expanded meaning to keep pace with constitutional values and the increasing enlightenment of informed public opinion
A nineteenth century text when applied to twentieth century conditions cannot be construed by signals from the grave
So while courts cannot innovate beyond the law the law cannot be viewed as cavemen s pieces
The penological winds of change reflected in 118 juristic debates bills for abolition of death penalty in Parliament and the increasing use of clemency and commutation by the highest Executive must affect the living law of statutory application
There is yet another consideration of grave moment which must weigh with the court vowed to uphold Justice Social Economic and Political
Who by and large are the men whom the gallows swallow  The white collar criminals and the corporate criminals whose wilful economic and environmental crimes inflict mass deaths or who hire assassins and murder by remote control  Rarely
With a few exceptions they hardly fear the halter
The feuding villager heady with country liquor the striking workers desperate with defeat the political dissenter and sacrificing liberator intent on changing the social order from satanic misrule the waifs and strays whom society has hardened by neglect into street toughs or the poor householder husband or wife driven by dire necessity or burst of tantrums it is this person who is the morning meal of the macabre executioner
Justice Douglas in a famous death penalty case observed Former Attorney Ramsey Clark has said It is the poor the sick the ignorant the powerless and the hated who are executed A characteristic of village murderers in India over 60 per cent of them have lost their parents either one or both at the time of commission of the crime
Inadequate parental protection is thus one of the primary factors in the upbringing of a murderer
The very existence of parents helps the healthy growth of the offspring and prevents the children from falling into the whirlpool of crime Comments the Editor the Illustrated Weekly of India dated August 29 1976
Historically speaking capital sentence perhaps has a class bias and colour bar even as criminal law barks at both but bites the proletariat to defend the proprietariat a reason which incidentally explains why corporate criminals including top executives who by subtle processes account for slow or sudden killing of large members by adulteration smuggling cornering pollution and other invisible operations are not on the wanted list and their offending operations which directly derive profit from mafia and white collar crimes are not visited with death penalty while relatively lesser delinquencies have in statutory and forensic rhetoric deserved the extreme penalty
Penal 119 law is not what the printed text professes but what the prison cell and the condemned man testify
Courts take a close up of the immediate circumstances not the milieu which made the murderer nor the environs which make him man again
In equal justice under the law this imbalance of section 302 IPC in action cannot be missed
The tradition bound agencies of justicing cocooned by judicial precedents reflecting by gone values make sentencing processes soft  where they should be severe and tainted with torture where a healing touch comports with culture
Indeed the habitual cerebrations of both wings of the profession have been guiltless of the great experiment of injecting the humanism of the National Charter through the interpretative art into criminal statistics
Social justice on the one hand means social defence from white collar and kindred criminals not through procrastinating illusions of punishment but instant deterrents to anti social delinquents and on the other Prison Justice Reforms of offenders non institutional strategies through community participation in correction and above all sentencing essays which ensure dignity of the individual human decencies and uplifting projects which re make the criminal into a good citizen
Several of our prison houses and practices make us wonder about institutional criminality and punishment  becoming a brand of crime and worse a manufacturing process of dehumanized criminals
Prison Reform is on the national agenda
Sentencing Reform soon deserves to be added
An Indo Anglian appreciation of British Justice is sometimes relied on subconsciously strengthened by the ambiguous Report of the Royal Commission on Capital Penalty to substantiate the retentionist theory
But it is note worthy that Sir Samuel Romilly critical of the brutal penalties in the then Britain said in 1817 The Laws of England are written in blood 
Alfieri has suggested Society prepares the crime the criminal commits it We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield If you are going to have anything to do with the criminal courts you should see for yourself the conditions under which prisoners serve their sentence  It would be extremely gratifying to scan the pages of British legal and social history and to find that the members of the judiciary were invariably in the fore front of the movement towards enlightenment progress and humanity
Unfortunately until very recently this has never been the case in fact it would be fair to say the judges have usually been amongst the principal opponents of penal reform
It may be 120 that they were too far divided from the rest of the populace in the remoteness of their dignity and too far removed in their standards of physical comfort and intellectual elegance
Perhaps if a number of them had personally investigated the pitiable squalor of the prisons the depravity of the haulks and the bestial cruelties on the scaffold some at least might have been shocked into a public condemnation of the entire penal system
But as it was they preferred to remain either ignorant of or acquiescent to the aftermath of their judgments and of all the ensuing horrors which were being carried out in the name of the law  1 British Justice has abandoned death penalty for murder for two decades now Homicide Act 1957 without escalation of murderous crime
Attempts to get round the Murder Abolition of Death Penalty Act 1965 have failed in Parliament and as Barbara Wooton says Capital punishment thus appeared to be itself sentenced to death  for murder
To quote the Royal Commission s recommendation for retention after Parliament has abolished death penalty is only of historical interest After the Abolition Act had been in force for over seven years the Criminal Law Revision Committee considered whether any further changes in the penalty for murder were desirable
Their conclusions were almost entirely negative
 This perspective justifies judicial evolution of a humane penal doctrine because the legislative text is not static and as Chief Justice Warren wrote in Trop vs Dulles the court must draw its meaning from the evolving standards of a maturing society 
The great answer to grave crime is culturing of higher consciousness removing the pressure of a perverted social order and nourishing the inner awareness of man s true nature
This is true penal reform including jail reform
A difficult category which defies easy solution even in the developmental social justice background is the political or ideological murderer
Where freedom of faith and conscience is affirmed as in our Constitution where concentration of wealth and ethnic and social suppression are anathema and egalitarian cum distributive justice are positive goals criminals  motivated by the fundamental creed of our Constitution may well plead for the benefit of life imprisonment
Count Leo Tolstoy in his Recollections and Essays denounces death penalty even against revolutionaries by arguments too Gandhian to be dismissed by Indian judges in the sentencing sector of discretion
We 121 do not dogmatise but suggest the trend
Law by itself is no answer to Justice as the sublime instances of Socrates Jesus are martyrs galore in the long story of Man point
We do not underrate the importance of strong public denunciation of serious crimes like murder and heavy punishment for it
The critical question is whether capital sentence or incarceration for life in a hospital setting both stern but the former a final farewell to life itself the latter a protracted living ordeal which of the two harsh alternatives should be inflicted
Criminologists have reached near consensus that death penalty for murder is judicial futility as a deterrent and is a vulgar barbarity if fruitless
And Reformationists have made headway so much that about 80 countries have given up capital sentence
England had 200 offences which carried death sentences and publicly hanged boys and girls for stealing spoons and the like
Stealing persists death penalty has disappeared
The importance of death sentence as a deterrent is brought out with characteristic wit by Dr Johnson who according to Boswell noted pickpockets plying their trade in a crowd assembled to see one of their number executed
There is no moral defence against the application of Justitia dulcore misericordiac temperate Justice tempered by mercy literally by sweetness of compassion even in the name of deterrence
CONDENSED GUIDELINES We may summarise our conclusions to facilitate easier application and to inject scientific formulation
The criminal law of the Raj vintage has lost some of its vitality notwithstanding its formal persistence in print in the Penal Code so far as section 302 IPC is concerned
In the post Constitution period section 302 IPC and section 3453 of the Code of Criminal Procedure have to be read in the humane light of Parts III and IV further illumined by the Preamble to the Constitution
In Sunil Batra a Constitution Bench of this Court has observed Consciously and deliberately we must focus our attention while examining the challenge to one fundamental fact that we are required to examine the validity of a pre constitution statute in the context of the modern reformist theory of punishment jail being treated as a correctional institution Cases are not unknown where merely on account of a long lapse of time the Courts have commuted the sentence of 122 death to one of life imprisonment on the sole ground that the prisoner was for a long time hovering under the formenting effect of the shadow of death The scheme of the Code read in the light of the Constitution leaves no room for doubt that reformation not retribution is the sentencing lode star emphasis added 2
The retributive theory has had its day and is no longer valid
Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal panacea
The current ethos with its strong emphasis on human rights and against death penalty together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice which is a paramount principle and cultural paradigm of our Constitution
The personal and social the motivational and physical circumstances of the criminal are relevant factors in adjudging the penalty as clearly provided for under the new Code of 1973
So also the intense suffering already endured by prison torture or agonising death penalty hanging over head consequent on the legal process
Although the somewhat absolescent M Naughten Rules codified in section 84 of the Penal Code alone are exculpatory mental imbalances neurotic upsets and psychic crises may be extenuatory and the sense of diminished responsibility may manifest itself in judicial clemency of commuted life incarceration
Social justice projected by article 38 colours the concept of reasonableness in article 19 and non arbitrariness in article 14
This complex of articles validates death penalty in a limited class of cases as explained above
Maybe train dacoity and bank robbery bandits reaching menacing proportions economic offenders profit killing in an intentional and organised way are such categories in a Third World setting
Apart from various considerations which may weigh with the Court one consideration which may be relevant in given circumstances is the planned motivation that goaded the accused to commit the crime
Largely in India death is caused not by a cool calculated professionally cold blooded planning but something that happened on the spur of the moment
In fact in faction ridden society factions come to grip on a minor provocation and a gruesome tragedy occurs
123 But with the development of the complex industrial society there has come into existence a class of murderers who indulge in a nefarious activity solely for personal monetary or property gain
These white collar criminals in appropriate cases do deserve capital punishment as the law now stands both as deterrent and as putting an end to an active mind indulging in incurably nefarious activities
It is such characteristics that determine more or less the gravity and the character of the offence and offender
We may venture that sometimes there is big money in the subtle murder business disguised as economic offences or industrial clashes and there social justice in certain circumstances punctures soft  justice and opts for lethal sentence
Where intractable mafia shows up in murderous profusion the sentence of death must reluctantly though defend society
The survival of an orderly society without which the extinction of human rights is a probability compels the higher protection of the law to those officers who are charged with the fearless and risky discharge of hazardous duties in strategic situations
Those officers of law like policemen on duty or soldiers and the like have to perform their functions even in the face of threat of violence sometimes in conditions of great handicap
If they are killed by designers of murder and the law does not express its strong condemnation in extreme penalisation justice to those called upon to defend justice may fail
This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence
When an environmental technologist food and drug chemist or engine manufacturer intentionally acts in the process abetted by the top decision makers in the corporation concerned in such manner that the consumer will in all probability die but is kept wilfully in the dark about the deadly consequence by glittering advertisement or suppressio veri he deserves dealth penalty for society s survival if he fulfils the elements of murder
Maybe a re definition of murder may be needed to make this legal mandate viable
Parliamentarians and judicial personnel may benefit by the observations made by Ralph Nader on American Law in action In no clearer fashion has the corporation held the law at bay than in the latter s paralysis toward the corporate crime wave
Crime statistics almost wholly ignore corporate or business crime there is list of the ten most wanted corporations the law affords no means of regularly collecting 124 data on corporate crime and much corporate criminal behaviour such as pollution has not been made a crime because of corporate opposition
For example wilful and knowing violations of auto tire radiation and gas pipe line safety standards are not considered crimes under the relevant statutes even if lives are lost as a result
The description of an array of corporate crimes in this forthright book reveals a legal process requiring courage not routine duty by officials to enforce the laws against such outrages
The law is much more comfortable sentencing a telephone coin box thief to five years than sentencing a billion dollar price fixing executive to six weeks in jail
In one recounting after another the authors pile up the evidence toward one searing conclusion that corporate economic product and environmental crimes dwarf other crimes in damage to health safety and property in confiscation or theft of other people s monies and in control of the agencies which are supposed to stop this crime and fraud
And it all goes on year after year by blue chip corporate recidivists
Why  It is easy to answer power
 But that is the beginning not the end of understanding
 9 Special reasons  necessary for imposing death penalty must relate not to the crime as such but to the criminal
The crime may be shocking and yet the criminal may not deserve death penalty
The crime may be less shocking than other murders and yet the callous criminal eg a lethal economic offender may be jeopardizing societal existence by his act of murder
Likewise a hardened murderer or dacoit or armed robber who kills and relishes killing the raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to current psycho therapy or curative techniques may deserve the terminal sentence
Society survives by security for ordinary life
If officers enjoined to defend the peace are treacherously killed to facilitate perpetuation of murderous and often plunderous crimes social justice steps in to demand death penalty dependent on the totality of circumstances
We must always have the brooding thought that there is a divinity in every man and that none is beyond redemption
But death penalty still on our Code is the last step in a narrow category where within a reasonable spell the murderer is not likely to be cured and tends to murder others even within the prison or immediately on release if left alive a king cobra which by chronic habit knows only 125 to sting to death unless defanged if possible
The patience of society must be tempered by the prudence of social security and that is the limited justification for deprivation of fundamental rights by extinguishment of the whole human being
The extreme penalty can be invoked only in extreme situations
The criminology of higher consciousness claims that by expanding inner awareness through meditational and yogic techniques the worst offender can be reformed if prisons can function more fulfillingly and less fatuously a consummation devoutly to be wished  Murderers are not born but made and often can be unmade
This claim if experimented with and found credible goes a long way to remove from the scales of justice stains of human blood
When this healing hope is developed adequately may be the penal pharmacopoeia may remove death sentence from the system
The journey is long and we are far from home
Currently our prisons often practice zoological not humanising strategies as some competent reports and writings tend to prove
What we have laid down is not in supersession of those extenuating situations already considered by this Court as sufficient to commute death sentence but is supplementary to them and seeks to streamline so that erratic judicial responses may be avoided
In Ediga Annammasupra for instance this Court has held and while endorsing we repeat it for emphasis Where the murderer is too young or too old the clemency of penal justice help him
Where the offender suffers from socio economic psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one judicial commutation is permissible
Other general social pressures warranting judicial notice with an extenuating impact may in special cases induce the lesser penalty
Extraordinary features in the judicial process such as that the death sentence has hung over the head of the culprit excruciatingly long may persuade the Court to be compassionate
Likewise if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive being under section 302 read with section 149 or again the accused had acted suddenly under another s instigation without pre meditation perhaps the Court may humanely opt for life even like where a just cause or real suspicion of wifely indefility pushed the criminal into the crime
On the other hand the weapons used and 126 the manner of their use the horrendous features of the crime and hapless helpless state of the victim and the like steel the heart of the law for a sterner sentence
 In Srirangan vs State of Tamil Nadu the Court set aside a death sentence even though three had been killed
That was a case of three innocent lives put down without provocation and although the courts below had concurrently inflicted death sentence a Bench of three judges confining the focus on sentence alone commuted the punishment
The crucial role of young age in his twenties and a trace of mental imbalance in robbing the propriety of a death impost even from such a ghastly case of tripe murder was emphasised
This Court s observations on the sensitive attitude to sentencing and the wide spectrums of considerations under section 3543 Cr
PC are helpful here The plurality of factors bearing on the crime and the doer of the crime must carefully enter the judicial verdict
The winds of penological reform notwithstanding the prescription in section 302 binds the death penalty is still permissible in the punitive pharmacopoeia of India
Even so the current of precedents and the relevant catena of clement facts personal social and other persuade us to hold that even as in Nanu Ram vs State of Assam AIR  the lesser penalty of life imprisonment will be a more appropriate punishment here
 A brief word about Lalla Singh
That was a case of murder of three persons and the head of one of the deceased a lady was severed
The trial judge awarded the extreme penalty to him who did this gruesome deed
But the court reduced the sentence to life term grounded on the long and agonising gap between the date of offence and the disposal of the case by the Supreme Court While we are unable to say that the learned Sessions Judge was in error in imposing the extreme penalty we feel that as the offence was committed on 18 6 1971 more than six years ago the ends of justice do not require that we should confirm the sentence of death passed on the first respondent
 127 We have read the penal Code section 302 in harmony with the Procedure Code section 3543 and tuned up both the Codes to receive the command of the Constitution Too kind for too long to criminals  is a cynical comment which comes with a call for revival of more hangings as a gut reaction to a horrible crime forgetting that crimelessness comes only from higher consciousness
And in a democracy if such offences escalate beyond endurance and such cries rise from all over penal policy may change whether the judges and jurists and moralists and murderers relish it or not
Even so the basic humanity of mankind cannot be surrendered to panicky calls and passionate reactions provoked by stray though shocking events
Two significant developments need to be stressed before we conclude the general discussion
The first is the functional failure at the forensic level of the meaningful provision in the Procedure Code 1973 intended to help the court to individualise sentencing justice to fit the crime and the criminal
The sentence of death can be imposed by the Sessions Judge and it can only be executed after it is confirmed by the High Court as provided in Chapter XXVIII of the Code
The procedure prescribed for the trial of sessions cases is contained in Chapter XVIII
Section 235 which is relevant for this purpose reads as under 2351 After hearing arguments and points of lawif any the Judge shall give a judgment in the case
2 If the accused is convicted the Judge shall unless he proceeds in accordance with the provisions of section 360 hear the accused on the question of sentence and then pass sentence on him according to law
 A specific stage is prescribed in the trial of cases tried by the Sessions Court in accordance with the procedure prescribed in Chapter XVIII
After the prosecution evidence is complete and the accused is called upon to enter the defence and if evidence is led on behalf of defence after the defence evidence is complete the Court should hear arguments of the Prosecutor and the advocate on behalf of the accused see section 234
Thereafter comes section 235 which obligates the Court to give a judgment
The question of sentence does not enter the verdict or consideration at this stage
If the accused is to be acquitted the matter ends there
If the Court upon consideration of the evidence led before it holds the accused guilty of any offence it must pronounce judgment to the extent that it holds accused guilty of a certain offence
128 Thereafter a statutory duty is cast upon the Court to hear the accused on the question of sentence
Sub section
2 obligates the Court to hear the accused on the question of sentence
In fact this provision should be construed to mean that where the Court has to choose one or the other sentence and if with a view to inflicting a certain sentence special reasons are required to be recorded obviously the State which is the prosecutor must be called upon to state to the Court which sentence as prosecutor it would consider appropriate in the facts and circumstances of the case
Where the accused is convicted for an offence under section 302 IPC the Court should call upon the Public Prosecutor at the stage of section 2352 to state to the Court whether the case is one where the accused as a matter of justice should be awarded the extreme penalty of law or the lesser sentence of imprisonment for life
If the Public Prosecutor informs the Court that the State as Prosecutor is of the opinion that the case is not one where extreme penalty is called for and if the Sessions Judge agrees with the submission the matter should end there
If on the other hand the Public Prosecutor states that the case calls for extreme penalty prescribed by law the Court would be well advised to call upon the Public Prosecutor to state and establish if necessary by leading evidence facts for seeking extreme penalty prescribed by law
Those reasons and the evidence in support of them would provide the special reasons according to the State which impel capital punishment
It would be open to the accused to rebut this evidence either by submissions or if need be by leading evidence
At that stage the only consideration relevant for the purpose of determining the quantum of punishment would be the consideration bearing on the question of sentence alone and not on the validity of the verdict of guilty
After considering the submissions and evidence it would be for the Court with its extreme judicious approach and bearing in mind the question that the extreme penalty is more an exception to determine what would be the appropriate sentence
This would ensure a proper appreciation of vital considerations entering judicial verdict for determining the quantum of sentence
We hope the Bar will assist the Bench in fully using the resources of the new provision to ensure socio personal justice instead of ritualising the submissions on sentencing by reference only to materials brought on record for proof or disproof of guilt
The second major development is the amendment of section 302 IPC moved by Government and already passed by the Rajya Sabha doing 129 away with death penalty for murder save in exceptional categories
So far as it goes the benignity of the change reflects the constitutional culture we have explained
The discretion still left in our view must be guided by the mariner s compass we have supplied in this Judgment
THE FACTS AND CONCLUSIONS Having stated the law at length we have to apply it to the facts of the cases which we proceed to state
After all Let the facts be known as they are and the law will sprout from the seed and turn its branches towards the light
We may now state the facts needed for the application of the principles set out above
RAJENDRA PRASAD S CASE A long standing family feud with years long roots let to a tragic murder
The houses of Ram Bharosey and Pyarelal had fallen out and periodic fuelling of the feud was furnished by the kidnapping of a wife the stabbing of a brother and the like
Lok Adalats of village elders brought about truce not peace
The next flare up was a murder by the appellant a rash son of one of the feuding elders Pyarelal
He was sentenced to life imprisonment which means no reformation but hardening process since our jails are innocent of carefully designed programme of re humanizing but have an iatrogenic inherited drill of de humanising
The young man after some years served in prison was released on Gandhi Jayanti Day
But Gandhian hospital setting was perhaps absent in the prison which in all probability was untouched by reformation of diseased minds the fundamental Gandhian thought
The result was the release kept alive his vendetta on return aggravated by the zoological  life inside
Some minor incident ignited his latent feud and he stabbed Ram Bharosey and his friend Mansukh several times and the latter succumbed
The desperate character  once sentenced deserved death this second time said the Sessions Court and the High Court confirmed the view
An application of the canons we have laid down directly arises
There is the common confusion here
A second murder is not to be confounded with the persistent potential for murderous attacks by the murderer
This was not a menace to the social order but a specific family feud
While every crime is a breach of social peace the assailant is bound over only if he is a public menace
Likewise here was not a youth of uncontrollable violent propensities against the com 130 munity but one whose paranoid preoccupation with a family quarrel goaded him to go at the rival
The distinction is fine but real
How do we designate him desperate  without blaming the jail which did little to make a man out of the criminal clay  So long as therapeutic processes are absent from prisons these institutions far from being the healing hope of society prove hardening schools to train desperate criminals
The pitiless verse of Oscal Wilde is pitifully true even today The vilest deeds like poison weeds Bloom well in prison air It is only what is good in Man That wastes and withers there Desperate criminal is a convenient description to brand a person
Seldom is the other side of the story exposed to judicial view the failure of penal institutions to cure criminality and their success in breaking the spirit or embittering it
Prasad s prison term never cured  him
Who bothered about cure  The blame for the second murder is partly on this neglect
Nothing on record suggests that Rajendra Prasad was beyond redemption nothing on record hints at any such attempt inside the prison Lock up of a criminal for long years behind stone walls and iron bars with drills of breaking the morale will not change the prisoner for the better Recidivism is an index of prison failure in most cases
Any way Rajendra showed no incurable disposition to violent outbursts against his fellow men
We see no special reason to hang him out of corporeal existence
But while awarding him life imprisonment instead we direct for him mental moral healing courses through suitable work acceptable meditational techniques and psychotherapic drills to regain his humanity and dignity
Prisons are not human warehouses but humane retrieval homes
Even going by precedents like Lalla Singh supra this convict has had the hanging agony hanging over his head since 1973 with nearsolitary confinement to boot
He must by now be more a vegetable than a person and hanging a vegetable is not death penalty
This is an additional ground for our reduction
THE KUNJUKUNJU CASE The next case is no different in the result but very different on the facts
The scenario is the usual sex triangle terribly perverted
One 131 randy Janardanan the appellant with a wife and two children developed sex relations with a fresh girl and the inevitable social resistance to this betrayal of marital fidelity led to a barbaric short cut by this in criminal of cutting to death the innocent wife and the immaculate kids in the secrecy of night
To borrow the vivid words of the courts below deliberate  cold blooded  was the act attended as it was with considerable brutality 
This ruled out mitigation and supplied special reasons  according to both the courts below for the awesome award of death penalty
Was that right  If the crime alone was the criterion yes but if the criminal was the target No The brucial question is whether the crime and its horrendous character except to the extent it reveals irreparable depravity and chronic propensity is relevant
The innocent three will not be happy because one guilty companion is also added to their number
Is Janardanan a social security risk altogether beyond salvage by therapeutic life sentence  If he is the pall must fall on his cadayer
If not life must burn on
So viewed no material save juridical wrath and grief is discernible to invoke social justice and revoke his fundamental right to life
A course of anti aphrodisiac treatment or willing castration is a better recipe for this hypersexed human than outright death sentence
We have not even information on whether he was a desperate hedonist or any rapist with Y  chromosomes in excess who sipped every flower and changed every hour so as to be a sex menace to the locality
Sentencing is a delicate process not a bling man s buff
We commute the death sentence to life imprisonment
THE DUBEY CASE There were three accused to begin with
The appellant was convicted of the murder of three relatives and sentenced to death
The other two were held guilty by the Sessions Judge of an offence of section 302 read with section 34 IPC and awarded life imprisonment
The appeal of the latter was allowed and that of the former dismissed both on crime and punishment
The learned Judges expressed themselves thus Considering that Sheo Shankar appellant caused the death of three persons so closely related to him by stabbing each of them in the chest one after the other and that too on no greater provocation than that there had been an exchange of abuses I do not see how it can be said that sentence of death errs on the side of severity
It was urged that this appellant was only 17 18 years old and so in view of 132 the ruling of the Supreme Court in Harnam vs State AIR  he should not be sentenced to death
In the first place the note of learned Sessions Judge on his statement shows that he was 19 20 years old and he had understated his age
Secondly I doubt that the observation of the Supreme Court in the said case can be applicable to such a case of triple murder where such victim is deliberately stabbed in the chest
 The whole reasoning crumbles on a gentle probe
A thumbnail sketch of the case is that the appellant his father and his brother were angrily dissatisfied with a family partition and on the tragic day flung the vessels over the division of which the wrangle arose went inside the house emerged armed picked up an altercation eventuating in the young man whose age was around 18 or 20 stabbing to death three members of the other branch of the family
He chased and killed excited by the perverted sense of injustice at the partition
It is illegal to award capital sentence without considering the correctional possibilities inside prison
Anger even judicial anger solves no problems but creates many
Have the courts below regarded the question of sentence from this angle  Not at all
The genesis of the crime shows a family feud
He was not a murderer born but made by the passion of family quarrel
He could be saved for society with correctional techniques and directed into repentance like the Chambal dacoits
What startles us is the way the adolescence of the accused has been by passed and a ruling of this Court reduced to a casualty by a casual observation
Hardly the way decisions of the Supreme Court read with article 141 should be by passed
Had the appellant been only 18 years of age he would not have been sentenced to death as the High Court expressly states
The High Court is right in stating so
Tender age is a tender circumstance and in this country unlike in England of old children are not executed
Since the age of the accused is of such critical importance in a marginal situation like the present one one should have expected from the courts below a closer examination of that aspect
Unfortunately they have not got the accused medically examined for his age nor have they received any specific evidence on the point but have disposed of the question in a rather summary way In the first place the note of the learned Sessions Judge on his statement shows that he was 1920 years old and he had understated his age
Secondly 133 I doubt that the observations of the Supreme Court in the said case  can be applicable to such a case of triple murder where each victim is deliberately stabbed in the chest
 A judge is no expert in fixing the age of a person and when precise age becomes acutely important reliance on medical and other testimony is necessary
One cannot agree with this manner of disposal of a vital factor bearing on so grave an issue as death sentence
Nor are we satisfied with the court vaguely distinguishing a ruling of this Court
It is not the number of deaths caused nor the situs of the stabs that is telling on that decision to validate the non application of its ratio
It is a mechanistic art which counts the cadavers to sharpen the sentence oblivious of other crucial criteria shaping a dynamic realistic policy of punishment
Three deaths are regrettable indeed terrible
But it is no social solution to add one more life lost to the list
In this view we are satisfied that the appellant has not received reasonable consideration on the question of the appropriate sentence
The criteria we have laid down are clear enough to point to the softening of the sentence to one of life imprisonment
A family feud an altercation a sudden passion although attended with extra ordinary cruelty young and malleable age reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence these catena of circumstances bearing on the offender call for the lesser sentence
It is apt to notice in this context that even on a traditional approach this is not a case for death sentence if we are to be belighted by the guidelines in Carlose John
The murder there was brutal but the act was committed while the accused were in a grip of emotional stress
This was regarded as persuasive enough in the background of the case to avoid the extreme penalty
The ruling in Kartar Singh related to a case of brutal murder and of hired murderers with planning of the criminal project
In that background the affirmation of the death sentence without any discussion of the guidelines as between life  and death  awards was hardly meant as a mechanical formula
It is difficult to discern any such ratio in that ruling on the question of sentence in the grey area of life versus death
The holding was surely right even by the tests we have indicated but to decoct a principle that if three lives are taken death sentence is the sequel is to read without warrant into that decision a reversal of the process spread over decades
134 Social defence against murderers is best insured in the short run by caging them but in the long run the real run by transformation through re orientation of the inner man by many methods including neuro techniques of which we have a rich legacy
If the prison system will talk the native language we have the yogic treasure to experiment with on high strung high risk murder merchants
Neuroscience stands on the threshold of astounding discoveries
Yoga in its many forms seems to hold splendid answers
Meditational technology as a tool of criminology is a mascent ancient methodology
The State must experiment
It is cheaper to hang than to heal but Indian life any human life is too dear to be swung dead save in extreme circumstances
We are painfully mindful that this Judgment has become prolix and diffuse
But too many pages are not too high a price where death sentence jurisprudence demands de novo examination to do justice by the Constitution
Much of what we have said is an exercise in penal philosophy in the critical area of death sentence
Philosophizing is distrusted by most of the professions that are concerned with the penal system
It is suspect for lawyers because they are conscious that if the criminal law as a whole is the Cinderella of jurisprudence then the law of sentencing is Cinderella s illegitimate baby
 After all the famous words of Justice Holmes The Law must keep its promises must be remembered
The appeals stand allowed and the death sentences stand reduced to life imprisonment and hopefully human rights stand vindicated
SEN J
In an appeal confined to sentence under Article 136 of the Constitution this Court has not only the power but as well as the duty to interfere if it considers that the appellant should be sentenced differently  that is to set aside the sentence of death and substitute in its place the sentence of imprisonment for life where it considers taking the case as a whole the sentence of death to be erroneous excessive or indicative of an improper exercise of discretion but at the same time the Court must impose some limitations on itself in the exercise of this broad power
In dealing with a sentence which has been made the subject of an appeal the Court will interfere with a 135 sentence only where it is erroneous in principle 
The question therefore in each case is whether there is an error of principle  involved
The Court has the duty to see that on the particular facts and circumstances of each case the punishment fits the crime
Mere compassionate sentiments of a humane feeling cannot be a sufficient reason for not confirming a sentence of death but altering it into a sentence of imprisonment for life
In awarding sentence the Court must as it should concern itself with justice that is with unswerving obedience to established law
It is and must be also concerned with the probable effect of its sentence both on the general public and the culprit
In the three cases before us there were special reasons  within the meaning of section 354 sub section
3 of the Code of Criminal Procedure 1973 for the passing of the death sentence in each and therefore the High Courts were justified in confirming the death sentence passed under section 368a of the Code
Indeed they are illustrative of the rare type of cases that is first degree murders where a death sentence is usually awarded in any civilised country
These were cases of diabolical cold blooded brutal murders of innocent persons that is first degree murders of extreme brutality or depravity
The inhumanity of some of these offenders defies belief
I had the advantage of reading the judgment as originally prepared by my learned brother Krishna Iyer J which by defining the class of cases in which a death sentence may be passed upon conviction of a person for having committed an offence of murder punishable under section 302 of the Indian Penal Code 1860 and by putting a restrictive construction on the words special reasons appearing in section 354 sub section
3 of the Code of Criminal Procedure 1973 does in my opinion virtually abolish the death sentence
I was therefore constrained to write this dissenting opinion as it is difficult to share the views of my learned brother Krishna Iyer J He has now completely revised his draft judgment in which he has endeavoured to meet my point of view and I have had the advantage of reading it
But I see no particular reason to change my views on the subject or to re write or revise my dissenting opinion as the matter essentially involves a question of principle
My learned brother Krishna Iyer J pleads for abolition of the death penalty in accordance with the Stockholm Declaration of the Amnesty International
He believes that the death penalty is not only physically but psychologically brutal referring to the lengthy period between sentencing and execution as a lingering death
He recalls the names of many patriots who faced the firing squad or died by the hangmen s 136 noose in the cause of the country s freedom and pleads that it is the duty of the State to protect the life of all persons without exception
He asserts that by its application the death penalty contradicts the very sanctity of life which all human society claims to hold among the highest values
He tells us that almost all civilised countries have abolished it as a symbol of their respect for human life and expresses deep anguish that we in our country still cling to it with little regard to the basic rights of the man
I fully reciprocate the feelings of my learned brother Krishna Iyer J in so far as he speaks of the barbarity involved in killing of patriots who have sacrificed their lives in the country s struggle for freedom
The citizen s right to life and personal liberty are guaranteed by Article 21 of the Constitution irrespective of his political beliefs class creed or religion
The Constitution has by Article 21 itself forged certain procedural safeguards for protection to the citizen of his life and personal liberty
The idealistic considerations as to the inherent worth and dignity of man is a fundamental and pervasive theme of the Constitution to guard against the execution of a citizen for his political beliefs
1 however must enter a dissent when my learned brother Krishna Iyer J tries to equate a patriot with an ordinary criminal
The humanistic approach should not obscure our sense of realities
When a man commits a crime against the society by committing a diabolical cold blooded pre planned murder of an innocent person the brutality of which shocks the conscience of the Court he must face the consequences of his act
Such a person forfeits his right to life
The main thrust of his judgment is the decision of the Supreme Court of the United States of America in Furman vs Georgia am afraid Furman no longer holds the field even in the United States
I shall deal with this aspect in detail at a later stage
The constitutionality of the death sentence provided for the offence of murder under section 302 of the Indian Penal Code is not before the Court
I fail to appreciate how can we say that imposition of death penalty except in the classes of cases indicated by my learned brother would be violative of Articles 14 19 and 21 of the Constitution
The question really does not arise for our consideration
In Jagmohan Singh vs State of UP this Court rejected the contention that capital punishment for an offence of murder punishable under section 302 infringes Article 19 of the Constitution in as much as it could not be said that such punishment was unreasonable or not required in public interest
It fur 137 ther held that section 302 was not violative of Article 14 as it did not suffer by the vice of excessive delegation of legislative functions merely because it does not provide for the cases in which a Judge should sentence the accused to death and the cases in which he should sentence him to life imprisonment
It was observed that the exercise of judicial discretion in the matter of fixing the degree of punishment was based on well recognised principles and on the final analysis the safest possible safeguard for the accused
Nor it could be said that section 302 confers uncontrolled and unguided discretion to Judges in the matter of sentence and is therefore hit by Article 14
The Court further held that section 302 did not contravene Article 21 of the Constitution insofar as the trial was held as per provisions of the Code of Criminal Procedure 1973 and the Evidence Act 1872 which were undoubtedly part of the procedure established by law
I therefore take it that the opinion of my learned colleague that imposition of a death sentence in a case outside the categories indicated would be constitutionally invalid is merely an expression of his personal views
As Judges we are not concerned with the morals or ethics of a punishment
It is but our duty to administer the law as it is and not to say what it should be
It is not the intention of this Court to curtail the scope of the death sentence under section 302 by a process of judicial construction inspired by our personal views
The question whether the scope of the death sentence should be curtailed or not is one for the Parliament to decide
The matter is essentially of political expediency and as such it is the concern of statesmen and therefore properly the domain of the legislature not the judiciary Two propositions I think can be stated at the very outset 1 It is constitutionally and legally impermissible for this Court while hearing an appeal by special leave under article 136 of the Constitution on a question of sentence to re structure section 302 of the Indian Penal Code 1860 or section 354 sub section
3 of the Code of Criminal Procedure 1973 so as to limit the scope of the sentence of death provided for the offence of murder under section 302
2 It is also not legally permissible for this Court while hearing an appeal in a particular case where capital sentence is imposed to define the expression special reasons occurring in sub section
3 of section 354 of the Code in such a manner by a process of judicial interpretation which virtually has the effect of abolishing the death sentence
138 Section 302 of the Indian Penal Code 1860 provides Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine Sub section 3 of section 354 of the Code of Criminal Procedure 1973 enacts When the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years the judgment shall state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sentence The question of abolition of capital punishment is a difficult and controversial subject long and hotly debated and it has evoked during the past two centuries strong conflicting views
Opinion as to whether the death penalty is necessary in order to prevent an outraged community from taking the law into its own hands has been sharply divided
Immanual Kant in his Philosophy of Law  in upholding the death penalty observes It is better that one man should die than the whole people should perish for if justice and righteousness perish human life could no longer have any value in the world Even if a Civilised Society resolve to dissolve itself with the consent of all its members as might be supposed in the case of People inhabiting an island resolve to separate and scatter itself throughout the world the last murderer lying in the prison ought to be executed before the resolution is carried out
This ought to be done in order that everyone may realise the dessert of his deeds Montesquieu in L Esprit des Lois regarded the death penalty as repugnant but necessary the remedy of a sick society
John Stuart Mill made a very strong speech in the House of Commons1 advocating the use of the death penalty when it was applied to the most heinous cases
Attacking the argument that this punishment was not a deterrent to crime he said As for what is called the failure of death sentence who is able to judge that
We partly know who those are whom it has not deterred but who is there who knows whom it has deterred or how many human beings saved who should have lived
 139 Mill felt that the probability of an innocent person s suffering the death penalty was very slight indeed
Judges and juries would let the guilty escape before the innocent would suffer
If there were the slightest doubt of a man s innocence the death sentence would not be imposed or carried out
Sir Henry Maine the English legal historian observed that punishment evolved from social necessity
The concept of punishment as a form of expiation or atonement reaches far back into human nature as well as into human history
The notion that the threat of punishment by the State will restrain the potential criminal is one of the most commonly accepted justifications for it
The idea has a philosophical basis in the utilitarians  concept of the rational man acting upon a deliberate calculation of possible losses and gains
If men choose rationally among possible future courses of action then surely the likelihood of a criminal course of action could be decreased by attaching to it a quick certain and commensurate penalty
The value of capital punishment as an aspect of deterrence was perhaps most strongly put forward and very clearly stated by the great jurist Sir James Fitzjames Stephen more than a hundred years ago No other punishment deters man so effectually from committing crimes as the punishment of death
This is one of those propositions which it is difficult to prove simply because they are in themselves more obvious than any proof can make them
It is possible to display ingenuity in arguing against it but that is all
The whole experience of mankind is in the other direction
The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result
No one goes to certain inevitable death except by compulsion
Put the matter the other way
Was there ever yet a criminal who when sentenced to death and brought out to die would refuse the offer of commutation of his sentence for the severest secondary punishment  Surely not
Why is this  It can only be because All that a man has will he give for his life 
In any secondary punishment however terrible there is hope but death is death its terrors cannot be described more forcibly
 Supporters of capital punishment commonly maintain that it has a uniquely deterrent force which no other form of punishment has or 140 could have
The arguments adduced both in support of this proposition and against it fall into two categories
The first consists of what we may call the common sense argument  from human nature applicable particularly to certain kinds of murders and certain kinds of murderers
This a priori argument proceeds on the view that by doing so the law helps to foster in the community a special abhorrence of murder as a crime of crimes
By reserving the death penalty for murder the criminal law stigmatises the gravest crime by the gravest punishment so that the element of retribution merges into that of deterrence
The second justifies the ethics of capital punishment
Whatever be the ultimate justification for the punishment the law cannot ignore the public demand for retribution which heinous crimes undoubtedly provoke it would be generally agreed that though reform of the criminal law ought sometimes to give a lead to public opinion it is dangerous to move too far in advance of it
The movement to abolish death penalty started with the humanitarian doctrine evolved by Marchese De Cesars Bonesana Beccaria Italian publicist
In 1764 Bonesana published the famous little treaties Dei Delitti e della Pen
The French translation contained anonymous preface by Voltaire
In the preface to this book first appeared the phrase the greatest happiness of the greatest number
It advocated the prevention of crime rather than punishment and promptness in punishment where punishment was inevitable above all it condemned confiscation capital punishment and torture
Beccaria s ideas directly influenced the reforming activities of many social thinkers and philosophers
This represented a school of doctrine born of the new humanitarian impulse of the Eighteenth Century with which Rousseau Voltaire and Montesquieu in France and Bentham in England were associated which came afterwards to be known as the classical school
Moved by compassionate sentiment of a humane feeling Beccaria asserted that all capital punishment is wrong in itself and unjust
He maintained that since man was not his own creator he did not have the right to destroy human life either individually or collectively
It is the ultimate cruel inhuman and degrading punishment and violates the right to life
Its basic value he affirmed is its incapacitative effect
Beccaria claimed capital punishment was justified in only two instances first if an execution would prevent a revolution against a popularly established government and secondly if an execution was the only way to deter others from committing a crime
141 The policy of retribution is justified and sustained by an ethical philosophy which regards punishment as an integral and inviolative element in wrong doing as a moral necessity
This doctrine has been consistently maintained by intuitive or idealistic philosophers from Plato to Thomas Aquinas and from Kant to T H Green and his disciples
The deterrent effect of punishment has also been claimed by adherents of this school but its widespread adoption as a policy has probably been due more to the influence of the utilitarian philosophy of Bentham Paley John Stuart Mill and Herbert Spencer which makes the welfare of the society the greatest good of the greatest number the aim of all moral activity
It is this utilitarian philosophy which is now in the ascendent in penal legislation and which governs the view of most modern penologists
It still survives in the death penalty for murder and in the drastic penalties imposed for rape and other crimes which are peculiarly offensive to the moral sentiment as to the sense of security of the community
Nearly everywhere in the more recent stages of social development this motive has been supplemented but never wholly supplanted by an unquestioning faith in the deterrent effect on potential offenders of exemplary ie drastic punishment inflicted on actual offenders which in practice if not in theory comes to much the same thing
The doctrine of the individualisation of punishment that is to say of the punishment of the individual rather than the crime committed by him which is of commanding importance in present day penology is only a development of the neo classical school of the revolutionary period in France which modified Beccaria s rigorous doctrine by insisting on the recognition of the varying degrees of moral and therefore legal responsibility
Its fundamental doctrine is that the criminal is doomed by his inherited traits to a criminal career and is therefore a wholly irresponsible actor
Society must of course protect itself against him but to punish him as if he were a free moral agent is as irrational as it is unethical
In his Introduction to Principles of Morals and Legislation  the great work in which the English philosopher and jurist Jeremy Bentham was engaged for many years was published in 1789
Mankind he said was governed by two sovereign motives pain and pleasure and the principle of utility recognised this subjection
The object of all legislation must be the greatest happiness of the greatest number
On the legal side he deduced from the principle of utility that since all punishment is itself evil it ought only to be admitted so far as it promises to exclude some greater evil
142 The English social reformer Sir Samuel Romilly devoted himself primarily to reform the criminal law of England then at once cruel and illogical by attempting to influence Parliament to pass three Bills designed to repeal the death penalty for theft
By statute law innumerable offences were punishable with death in England but as wholesale execution would be impossible the larger number of those convicted and sentenced to death at every assizes were respited after having heard the sentence of death solemnly passed upon them
This led to many acts of injustice as the lives of convicts depended on the caprice of the Judges while at the same time it made the whole system of punishment and of the criminal law ridiculous
In 1808 Romilly managed to repeal the Elizabethian statute which made it a capital offence to steal from the person
In the following year three equally sanguinary statutes were thrown out of the House of Lords under the influence of Lord Ellenborough
Year after year the same influence prevailed and Romilly saw his bills rejected but his patient efforts and his eloquence ensured victory eventually for his cause by opening the eyes of Englishmen to the barbarity of their criminal law
In spite of the efforts which Romilly made to procure the abolition of the death penalty in many cases it should be noted however that he was not an abolitionist in the sense of the term today
All punishment properly implies moral accountability
It is related to injury and not only to damage or danger however great
Capital punishment does so in an eminent degree
It is directed against one who is ex hypothesi an inhuman brute ie it is imposed simply to eliminate one who is held to have become irretrievably a liability or a menace to society
As Aristotle put it just retribution consists not in simple but in proportionate retaliation that is in receiving in return for a wrongful act not the same thing but its equivalent and what this is can only be estimated if the whole context is taken into account
It may be argued that murder for instance as the one crime which is quite irrevocable as justly met by the one punishment which is equally irrevocable a unique form of punishment for a unique form of crime
To reduce its punishment to something of the same order as other punishments is to weaken the abhorrence which it should express and diffuse
On this showing an execution expresses absolute condemnation
It both satisfies and educates the public conscience for those in authority thus deepen in themselves and diffuse throughout the community their sense of the wickedness of wickedness the criminality of crime
It is an outward and visible sign of the utmost imaginable disgrace
The death 143 penalty has signified shame and infamy and has generally been understood to do so and all this is expressed in symbolic action of a kind that is both spontaneous and calculated to arrest attention
If the appeal of capital punishment were merely to fear of death it would be a very inefficient protector of society
In civilized society and in peacetime government relies for obedience more on its moral prestige than on violent repression of crime
Punishment only protects life effectively if it produces in possible murderers not only fear of the consequences of committing murder but a horrified recoil from the thing itself
It can only achieve this more ambitious task if sentence of death is felt to embody society s strongest condemnation of murder and keenest sense of its intolerable wickedness
It is not by the fear of death but by exciting in the community a sentiment of horror against any particular act that we can hope to deter offenders from committing it
The Royal Commission sucinctly explained the normal character of capital punishment thus by building up in the community over a long period of time a deep feeling of peculiar abhorrence for the crime of murder
 The criminality of a crime consists not only in the criminal act but in what that signifies
Its immediately apparent features the obvious damage to person or property or to public security are symptoms of a deeper disorder
It betokens and it fosters an attitude in man to man of reckless selfishness deceit or malice which is incompatible in the long run with any decent social life
In any advanced society it is in part at least on account of this wider character less easily discerned that the graver offences are punished
Also punishment like crime has a dual character
The penalty which the convicted murderer incurs is not simply death but death in disgrace and death as a disgrace
In so far as capital punishment is a threat the threat consists not only in death but in infamy
Any theory which ignores this characteristic is certainly defective
For a long time the problem of capital punishment was regarded as a purely academic question
Everything that could be said appear to have been said on a question which Beccaria had brilliantly brought to public notice in the second half of the Eighteenth Century but which had been exhausted by subsequent controversy
Punishment inflicted by the State in response to a violation of the criminal law 144 has been justified in various ways
It has been seen as society s vengeance upon the criminal as atonement by the wrong doer as a means of deterring other criminals as protection for the law abiding and as a way of rehabilitating the criminal
The individual who has inflicted harm on another runs the revenge argument should be made to suffer in return for only an act of vengeance can undo the harm that has been done and assuage the suffering of the victim
As against this some social reformers have maintained that punishment ought to be decent to transform the values and attitudes of the criminal so that he no longer wishes to commit illegal acts
The problem of course has been to discover how to do it
Theories of rehabilitation are largely speculative since there is lack of scientific evidence to support them
Nevertheless it has been influential in the development of modern penology
In England during the Nineteenth Century Disraeli and Gladstone the leading politicians in the country took no part in the movement to abolish the death penalty
Leadership in this crusade fell to lesser men and the abolitionists formed a distinct minority
The majority in the House of Commons evidently felt as Sir John Holkar the Attorney General felt that criminals were deterred from adding deliberate murder to their other crimes by the fear of the death penalty
In the period between the first and second world wars however the emergence of authoritarian systems of penal law raised once more the problem of capital punishment in a particularly acute manner
At the end of the second world war there was a renewed upsurge of this humanitarian tendency which like the desire to safeguard human rights and human dignity had been the mainspring of the movement for the abolition of the death penalty
Several attempts were made to break the parliamentary fortress but without any success
Very little was actually accomplished by the abolitionists in Parliament till after the second world war when the Labour Government came to power
In between 1949 and 1953 the Royal Commission on Capital Punishment carried out an exhaustive inquiry
The Royal Commission made a study of this complex and many sided task
It held its inquiries not only in Great Britain but also in the United States and several European countries and heard evidence from every possible source
It listened to an impressive array of witnesses
In addition to all this information was collected from Commonwealth countries and several other European countries
Its 145 result is reflected in the Royal Commission Report on Capital Punishment which presents a comprehensive and dispassionate picture of the whole subject
The Commission was debarred by their terms of reference from considering the question of abolition of capital punishment but in the course of their investigation they naturally accumulated a good deal of information which is just as relevant to this issue as to the question of limiting the scope of capital punishment
The report contains a good deal of material on the Deterrent Value of Capital Punishment
It is evident from the report that some of the most distinguished judicial witnesses including Lord Goddard the Lord Chief Justice of England Lord Denning the Master of Rolls and some very experienced Judges like Mr Justice Humphreys Sir John Beaumont Mr Justice Byrne were firmly of the view that the capital punishment must be retained for the protection of the society
They went to the extent of expressing their strong disapprobation of the free use of prerogative as being an interference by the Executive with the Judiciary and argued that the exercise of the power should be narrowly confined
As a justification for retention of death penalty some of these distinguished Judges put forth the principle of retribution and the others placed greater importance on deterrence
There was however general agreement that justification for the capital sentence as for other salient features of the penal system must be sought in the protection of the society and that alone
The punishment of death said Lord Denning to the Royal Commission should reflect adequately the revulsion felt for the gravest of crimes by the great majority of citizens
But in saying this he implied that legislators and Judges share this revulsion themselves otherwise indeed their action would be morally indefensible
Their aim then should be not only to strike terror nor even to awaken popular indignation in a direction convenient to Government
It would be to arouse in all and sundry their own indignant repudiation of a wicked act and at the same time to deepen it in themselves
In this vein sentence of death has been pronounced carried out and acclaimed with stern satisfaction
This principle of action is still avowed in high places and I believe it is semi consciously at work more often than it is avowed for it is said that otherwise the conscience of the community would be revolted if the criminal were allowed to live
In the same vein Lord Chief Justice Goddard said in 1948 146 The public conscience will not tolerate that persons who deliberately condemn others to painful and it may be lingering deaths should be allowed to live 
Some of these bestial murderers should be destroyed
 The use of capital punishment has declined in recent times although it is still permitted by law as in this country for various kinds of offences like treason murder etc
The issue of abolishing it has aroused much controversy
The advocates of capital punishment claim it as a necessary deterrent to crime and relatively painless if done properly
Even where it has been legally retained as here capital punishment is now seldom employed except in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience
Indeed the death penalty satisfies the society s retributive goals and is still presumed to be a deterrent to potential offenders
Of the three purposes commonly assigned to punishment retribution deterrence and reformation deterrence is generally held to be the most important although the continuing public demand for retribution cannot be ignored
Prima facie the death sentence is likely to have a stronger effect as a deterrent upon normal human beings than any other form of punishment
There is some evidence that this is in fact so and also that abolition may be followed by an increase in homicides and crimes of violence
In brief people are believed to refrain from crime because they fear punishment
Since people fear death more than anything else the death penalty is the most effective deterrent
In Britain following the Report of the Royal Commission on Capital Punishment the Homicide Act 1957 was enacted due to the growing pressure of public opinion to mitigate the rigour of the criminal law
16 It brought about a division of criminal homicide into degrees of murder
It resulted in the establishment of a distinction between capital and non capital murders
It not only eliminated long standing iniquities and rigidities in the law of murder such as the doctrine of constructive malice but also brought the law into accord with modern criminological thoughts by the importation of the doctrine of diminished responsibility
147 By section 7 the Act abolished the liability to suffer the death penalty on conviction of murder and substituted the sentence of imprisonment for life by section 9 sub section
1 except in cases of first degree murders falling within section 5 or section 6
Section 5 reserved the death penalty for five classes of first degree murders namely i any murder done in the course or furtherance of theft ii any murder by shooting or by causing an explosion iiiany murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest or of effecting or assisting an escape or rescue from legal custody iv any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting and v in the case of a person who was a prisoner at the time when he did or was a party to the murder any murder of a prison officer acting in the execution of his duty or of a person assisting a prison officer so acting
Sub section 2 of section 5 provided for death penalty on the principal assailant and not his accessories before the fact where a group of persons made a murderous assault causing grievous bodily hurt resulting in death
The distinction drawn in felonies between principals in the first and second degree and accessories before the fact have since been abolished by virtue of the Criminal Law Act 1967 section 1 and all these participants have to be punished in accordance with the Accessories and Abettors Act 1861
Section 6 provided the death penalty for repeated murders
The cases in which the death penalty was retained were those where in the view of the Government murder was most dangerous to the preservation of law and order and where the death penalty was likely to be a particularly effective deterrent
The death penalty for murder was thereafter temporarily abolished for a period of five years as an experimental measure by the Murder Abolition of Death Penalty Act 1965
This Act was to expire on July 31 1970 but was made permanent by resolution of both Houses of Parliament
The punishment for murder in Britain is now imprisonment for life by section 1 sub section
1 of the Murder Abolition of Death Penalty Act 148 1965
On sentencing any person convicted of murder to imprisonment for life the Court may at the same time declares a period which it recommends to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State orders the release of that person on licence under section 27 of the Prison Act 1952
In R vs Flemming it has been suggested that no such recommendation should be for a period of less than twelve years
It must however be observed that in Britain a sentence of death can still and only be awarded for high treason Treason Act 1814 section 1 piracy with violence Piracy Act 1837 section 2 setting fire to the Queen s ships arsenals etc
Dockyards etc
Protection Act 1772 section 1
When a person is convicted of treason sentence of death must be pronounced but in case of piracy with violence and setting fire to the Queen s ships arsenals etc it may be merely recorded
Sentence of death cannot however be pronounced on or recorded against an expectant mother Sentence of Death Expectant Mothers Act 1931 section 1 or against a person who was under the age of eighteen when the offence was committed Children and Young Persons Act 1933 section 53 1
The successful campaign to abolish the death penalty in Britain has been achieved in a comparatively short period of time by no more than a handful ardent penal reformers like Sydney Silverman who carried out the unfinished work of Romilly and other reformers pertinacious in their lobbying and propaganda in the face of majority opinion favouring retention of an admittedly barbaric but to that majority necessary penal instrument
If the final debates were protracted Silverman s private members  Bill with invaluable Legislative time given by the Government was introduced on December 4 1964 and reached the Statute Book only on November 2 1965 the history of the campaign is a remarkable testament to British democracy which can convert convinced minority opinion into progressive legislative action Due to an increase in the incidence of criminal behaviour and steady rise in the volume of reported crime there is a genuine public concern in Britain for re assessment of the penal policy of the Government
149 DA Thomas in his article Development in Sentencing 1964 1973 observes As a society we have made inconsistent demands on our official system of social control expecting greater security from violence disorder and depreciation and simultaneously requiring that penal sanctions become less rigorous and more adopted to the individual offender
 The learned author proceeds to say The provisions of the Murder Abolition of Death Penalty Act 1965 provides a simple illustration
Taken in isolation they provide that a person convicted of murder shall be sentenced to life imprisonment and the judge passing such a sentence may make a recommendation that a specified minimum period should elapse before the offenders may be released on licence
The mandatory life sentence part of the political price of the abolition of the death penalty cannot be defended on any rational grounds
 And then concludes In assessing the future trend of penal policy in this country it is probably wise to bear in mind that the problems facing the criminal justice system are unlikely to diminish during the next decade of their own accord things will almost certainly become worse rather than better
There seems to be no reason to suppose that the relatively steady rate of increase in the volume of reported crime over the last ten years will not continue The two recent decisions of the Privy Council in Eaton Baker vs The Queen and Michael de Freitas vs George Ramoutar Benny are completely destructive of the theory that the death penalty is per se cruel and unusual punishment and 2 alternatively the inordinate delay in carrying it out makes it so
In Eaton Baker s case the appeal was on a question of sentence
The issue was whether the Court of Appeal of Jamaica was right in sentencing to death the two youngmen who when they committed the murder were under the age of eighteen years but when they were convicted of the offence and sentenced to death had both attained the age of 18 years
The mandatory sentence of death upon conviction for murder is imposed 150 by section 2 of the Offences against the Person Act 1925
The exception on account of youth is contained in section 291 of the Juveniles Law which interdicts that a sentence of death shall not be pronounced on or recorded against a person under the age of 18 years
The Judicial Committee while holding that the statutory exemption from death penalty under section 291 of the Juveniles Law was not applicable observed that the time for ascertaining whether the appellants were to be treated as Juveniles was the date on which the sentence was passed and not the date of the offence
As to the constitutional issue the Judicial Committee held that when a person was held guilty of a charge of murder the death sentence passed on him cannot be treated as a contravention of section 207 of the Constitution of Jamaica stating One s opinion as to whether the consequences of giving effect to the sub section would be irrational or unjust is inevitably coloured by whether one starts with the belief that capital punishment should be abolished for all offences except perhaps for treason a view accepted by the legislature if not by public opinion in general in the United Kingdom or with the contrary belief that capital punishment is normally the appropriate penalty for murder a view which the continuance in force of section 2 of the Offences against the Person Law suggests is accepted by the legislature in Jamaica Emphasis supplied
In de Freitas case the Privy Council confirmed the sentence of death passed by the Court of Appeal of Trinidad and Tobago and held that there was no violation of the human rights and fundamental freedoms guaranteed under sections 1 and 2 of the Constitution of Trinidad and Tobago inasmuch as the sentence of death was passed according to the due process of law
In repelling the alternative argument based upon delay it observed that  the delay was of the appellant s own making and he could not put forth this as a ground for commutation of the sentence of death
It stated It is not contended that the executive infringed the appellant s constitutional rights by refraining from executing him while there were still pending legal proceedings that he himself had instituted to prevent this execution
 There was evidence that prior to independence the normal period spent in condemned cell by the prisoner before execution was five months and that this practice was sufficient to give rise to an unwritten rule of law  in force at the commencement of the Constitution
The contention was that the executive was therefore bound to so organise the procedure for carrying out the death sentence that the 151 average lapse of time is not more than five months and the carrying out of the death sentence beyond the period was incompatible with the right of the individual under section 1 a of the Constitution not to be deprived of life execpt by due process of law because it involves the imposition of cruel and unusual punishment within the meaning of section 2b
The Judicial Committee rejected the contention saying This contention in their Lordships  view needs only to be stated to be rejected
Not only does it involve attributing to the expression unwritten rule of law in section 1051 of the Constitution a meaning which it is incapable of bearing but it conflicts with the very concept of the nature of law
 That takes us to the decision of the Supreme Court of the United States of America in Furman vs Georgia supra in which my learned brother Krishna Iyer J strongly relies
There the question was whether the death penalty at least as generally practised in the United States per se was cruel and unusual  because the imposition of capital punishment does not comport with human dignity or because it was morally unacceptable and excessive and thus violative of the Eighth Amendment
In the United States of America the death penalty has paradoxcally existed more or less harmoniously with humane theories of criminal justice for over two hundred years
The Eighth Amendment prohibits cruel and unusual punishment 
The Eighth Amendment s ban on cruel and unusual punishment has raised some very difficult moral issues
The Supreme Court applied various standards in interpreting the provision
In Trop vs Dulles the Court by a majority of five to four refused to consider the death penalty as an index of the constitutional limit on punishment stating Whatever the arguments may be against capital punishment the death penalty has been employed throughout our history and in a day when it is still widely accepted it cannot be said to violate the constitutional concept or cruelty Chief Justice Warren speaking for Mr Justice Black Mr Justice Douglas and Mr Justice Whittakar asserted that this Court has had little occasion to give precise content to the Eighth Amendment that it content is not static but 152 must draw its meaning from the evolving standards of decency that mark the progress of a maturing society This amendment whose basic concept is nothing less than the dignity of man guarantees the principle of civilised treatment
 There began concerted legal attacks on the constitutionality of capital punishment in the 1960s stimulated in part by the fact that those receiving death sentences were disproportionately Blacks
The issue as to the constitutionality of the death penalty in a State usually arose in the Supreme Court of the United States on procedural grounds that is on the question of fairness of the procedural aspect and its application viz the practice under which state statutes left a jury to mote out the death penalty at its discretion with no standards of any sort to guide them or the application of the penalty without judicial standards
In McGoutha vs California the Supreme Court rejected the contention holding that the absence of any guidelines was not a violation of due process
Mr Justice Harlan thought it would be impossible to draft statutory standards for this purpose saying To identify before the fact these characteristics of criminal homicides and their perpetrators which call for the death penalty and to express these characteristics in language which can be fairly understood and applied by the sentencing authority appear to be tasks which are beyond present human ability In Furman vs Georgia the Court by a majority of five to four ultimately held that capital punishment at least as generally administered did violate the Eighth Amendment
It held that imposition of the death penalty in the three cases one for murder and two for rape constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments
The Court issued a brief per curiam order followed by substantial statements by every member of the Court
The judgment in the case was reversed and the cases remanded for further proceedings
Each of the five majority Justices and four dissenters wrote a separate opinion supporting his position
The five Justices in the majority each wrote a concurring opinion which approached the matter from a different angle so that clear categorisation is impossible
It can thus be seen that the multiple opinions did not rule out altogether re imposition of the death penalty in the future provided there was legislative structuring of a permissible system 153 providing for sufficient procedural safeguards
This is exactly what has happened in the United States where the death penalty has been re imposed and the judicial approach stands re oriented
Broadly stated Mr Justice Douglas Mr Justice Stewart and Mr Justice White held that the death Penalty as imposed is arbitrarily and infrequently meted out in violation of the Eighth and the Fourteenth Amendments
They took an analytic and empirical approach appraising the practice under the Eighth Amendment in the light of due process and equal protection
Their concern was whether the death penalty was evenly applied and of course they found that it was not
This is reflected in the opinion of Mr Justice Douglas who held that the death penalty was cruel and unusual because applied irregularly and selectively to minorities whose members are few who are outcasts of society and who are unpopular but whom society is willing to see suffer though it would not countenance general application of the same penalty across the boards Mr Justice Stewart s comment was These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual
For of all the people convicted of rapes and murders in 1967 and 1968 many just as reprehensible as these the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed Mr Justice White conceded that the death penalty while cruel in the dictionary sense would nevertheless be justified if it served social ends
But he did not believe that society s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient
Mr Justice Brennan and Mr Justice Marshall took a normative approach
They advocated the total abolition of the death penalty because it is in all cases violative of the Eighth Amendment cruel and unusual punishment clause
For them the Eighth Amendment posed a core question of values they were concerned less with fairness and equality and more with mercy and charity
For Mr Justice Brennan the primary principle is that a punishment must not by its severity be degrading to human dignity
Mr Justice Marshall in by far the longest opinion of the day pleaded for an humanistic approach
His impassioned conclusion was that ending the death sentence would recognise the humanity of our fellow beings and achieve a major milestone in the long road up from barbarism
154 The opinions of the four dissenting Justices were as important as the majority statements because any subsequent challenges on Furman would incorporate their reasoning
Mr Justice Blackman and Mr Justice Rehnquist who are advocates of strict judicial conservation felt that the matter was essentially political and properly the domain of the legislature not the judiciary
Chief Justice Burger admitting that since the ruling a Trop vs Dulles supra in 1958 it is necessary to evaluate a challenged punishment in terms of the evolving standards of decency of a maturing society felt nonetheless that there is no judicially significant public opposition to capital punishment in the United States
Pointing out that the decision rejecting the death penalty was essentially based on procedural grounds as the majority agreed that the arbitrary infliction of the death penalty was unconstitutional Burger contends that the Eighth Amendment does not deal with procedure and with only the substantive nature of the punishment in question
He believes that the imposition of a mandatory death penalty for certain offences would not be invalidated by the holding in this case because a mandatory penalty could not be arbitrily meted out
Mr Justice Powell dissented by establishing that the constitutionality of the death penalty is supported by four factors viz i the references to capital punishment in the Constitution ii the past Supreme Court decisions on the death penalty iii the limitation of judicial restraint and iv the doctrine of separation of powers
He found that the evidence of the petitioners fell short of satisfying their burdens of persuasion with respect to these factors
Due to the ambiguity of the Furman decision it is fortunate that the Supreme Court gave further indication of its intentions regarding the death penalty in subsequent decisions
But Furman was not determinative of the issue on the merits namely the constitutionality of the penalty because it violates the Eighth Amendment cruel and unusual punishment
It was widely assumed that the Court had not declared capital punishment unconstitutional per se but only its unpredictable and fortuitous use
Since the Furman decision the legislatures of thirty five states in the United States acted to tighten up the laws under which the death penalty was to be imposed
They took two different approaches
Some State including Georgia Florida and Texas established new procedures for capital cases requiring sentencing judges and juries to 155 consider certain specified aggravating or mitigating circumstances of the crime and the offender
There was a bifurcated trial with pre sentencing hearing
Courts of Appeal were given broader authority to decide whether the death penalty was fair in the light of the sentences for similar offences These laws were intended to redress the arbitrariness and racial prejudices renounced in Furman
But the other States including North Carolina Louisiana and Oklahoma sought to meet the Furman objections by removing all flexibility from the sentencing process though limiting the offences for which the death sentence could be imposed
Anyone found guilty of the specified offences was to be sentenced to death automatically
The constitutionality of the sentences imposed under such procedures has been upheld by five State Supreme Courts
On July 2 1976 the Supreme Court of the United States delivered the judgment it had postponed a year earlier
It handed down five opinions dealing with the death penalty
Three of these were concerned with the mandatory sentence of death
All involved the crime of murder
The five cases were Gregg vs Georgia Proffitt v Florida Jurek vs Texas Woodson vs North Carolina and Roberts vs Louisiana
The issue in the three cases dealing with discretionary sentencing Gregg Proffitt and Jurek was whether imposition of the sentence of death for the crime of murder under the laws of the respective states violated the Eighth and Fourteenth Amendments
In all three the Court reached the same conclusion that the punishment of death did not invariably violate the Constitution
The Court s reasons in Gregg as to why the death sentence was not a per se violation of the Eighth and Fourteenth amendments were as follows First history and precedent do not support the conclusion that the death sentence is a per se violation
Second the evolving standards of decency argument has been substantially undercut in the last four years because a large segment of the enlightened population regards the death penalty as appropriate and necessary as seen in the new legislation passed in response to Furman
The Court came to the conclusion that the death penalty was not inherently cruel and unusual
It served two principal social purposes 156 retribution and deterrence and held that the death sentence for the crime of murder was 1 not without justification 2 not unconstitutionally severe and 3 not invariably disproportionate to the crime
The Court found that Furman mandated where discretionary sentencing was used there must be suitable direction and limitation to minimise the risk of wholly arbitrary and capricious action
The bifurcated trial with standards modelled after the Model Penal Code gives juries just such guidance
Therefore the concerns of Furman can be met by carefully drafted statutes that ensure sentencing authorities are given adequate information and guidance in making their decision
As a general proposition the Court concluded that these concerns were best met by bifurcated proceedings with standards to guided the use of the evidence
I wish to conclude this part of the judgment by quoting Herbert LA Hart who in his article on Murder and the Principles of Punishment England and the United States admirably sums up the two points of view There are indeed ways of defending and criticising the death penalty which are quite independent of the utilitarian position and of the questions of fact which the utilitarian will consider as crucial
For some people the death penalty is ruled out entirely as something absolutely evil which like torture should never be used however many lives it might save
Those who take this view find that they are sometimes met by the counter assertion that the death penalty is some thin which morality actually demands a uniquely appropriate means of retribution or reprobation for the worst of crimes even if its use adds nothing to the protection of human life
Here we have two sharply opposed yet similar attitudes for the one the death penalty is morally excluded for the other it is moral necessity but both alike are independent of any question of fact or evidence as to what the use of the death penalty does by way of furthering the protection of society
Argument in support of views as absolute as these can consist only of an invitation on the one hand to consider in detail the execution of a human being and on the other hand to consider in detail some awful murder and then to await the 157 emergence either of a conviction that the death penalty must never be used or alternatively that it must never be completely abandoned
 The controversy over capital punishment is not new
Its roots lie deep in human history and its battles have been waged on and off on a political level for almost two centuries
It is not necessary for this Court to attempt to analyse the substantive merits of the cases for and against the death penalty for murder
It is in my view essentially a question for the Parliament to resolve and not for this Court to decide
I feel that it is futile for us to attempt to project our personal views in a matter which lies in the realm of political decision making by focussing on a single controversy the question of the proper penalty for the crime of murder
The capital punishment controversy falls within the strict limits of independent  parliamentary law making and is a typical or representative of the kind of problems that leaders of Parliament face every day
In short the case for abolition of the death sentence is political not constitutional
The Government carries the responsibility of law and order
That is the first and fundamental duty of any Government
The Executive has the duty of advising the Government of the laws it believes necessary for the national well being
It is the duty of the courts including this Court to administer the laws as they are
The Law Commission in its Thirty fifth Report has dealt with the question of abolition of capital punishment of limiting the scope of death sentence under section 302 and of the mode of execution of the sentence
It sent out questionnaires
Almost all the State Governments all High Court Judges all the Bar Associations throughout the country many distinguished lawyers were in favour of retention of the death sentence
There was in fact almost complete unanimity  of view on this complex question
The Commission examined a large number of witnesses including many distinguished Judges and lawyers and ultimately was in favour of its retention
It concluded stating that Having regard to the conditions in India to the variety of social upbringing of its inhabitants to the disparity of the level of morality and education in the country the vastness of its area to the diversity of its population and to the paramount need for maintaining law and order the country can not risk the abolition of capital punishment
 158 Indeed a distinguished lawyer while giving his evidence before the Joint Committee of the Indian Penal Code Bill thought that the abolition of death sentence would be a dangerous experiment and we should continue to have this form of deterrent punishment till we reach a certain state of enlightenment
The basic principle of the nineteenth century Indian Penal Code said Lord Macauley who drafted it is the principle of suppressing crime with the smallest possible amount of suffering1 
He lays this down as an unassailable axiom rather than as a contention for debate
Section 302 of the Indian Penal Code 1860 gives the Court a discretion as to the punishment to be imposed for an offence of murder and that discretion has to be exercised between the two alternatives mentioned namely a sentence of death and a sentence of imprisonment for life
Prior to the amendment of section 367 sub section
5 of the Code of Criminal Procedure 1898 by the Criminal Procedure Code Amendment Act 1955 it was a well settled principle that where a person was convicted for an offence of murder the Court was normally bound to sentence him to death unless there were extenuating or mitigating circumstances
This rule was stated in Rattanlal s Law of Crimes 21st ed p 813 The extreme sentence is the normal sentence the mitigated sentence is the exception
It is not for the Judge to ask him self whether there are reasons for imposing the penalty of death but whether there are reasons for abstaining from doing so The reason probably was that this provision was not more than the restatement of the law as it stood in England at that time where till the year 1965 the only penalty for murder was death except in two specific cases
The effect of the Criminal Procedure Code Amendment Act 1955 which repealed section 367 sub section
5 of the Code with effect from January 1 1956 was to restore to the Court the discretion conferred by section 302 to award the appropriate sentence having regard to the attendant circumstances including the mitigating circumstances if any
This brought the law into conformity with the intentions of the framers of the Code
As regards the death sentence far from making it the normal sentence for an offence of murder they stated that it ought to be sparingly used 
Under section 354 sub section
3 of the Code of Criminal Procedure 1973 the law is now entirely changed
159 Under section 354 sub section
3 of the Code of Criminal Procedure 1973 the Court is required to state the reasons for a sentence awarded and in the case of imposition of a sentence of death and Judge has to record special reasons for imposing death sentence
Punishment for murder as a rule should be life imprisonment and death sentence is only an exception
In Balwant Singh s case Ambaram s case and Sarveshwar Prasad Sharma s case the Court held that it was neither necessary nor possible to specify the special reasons which may justify the passing of death sentence in a given case
It would thus be obvious that it is neither feasible nor legally permissible for this Court to give a definite connotation to the expression special reasons occurring in section 354 sub section
3 of the Code of Criminal Procedure 1973
It is difficult to put special reasons in a straight jacket
Each case must depend on its own particular facts
The question of sentence must in my view be left to the discretion of the Sessions Judge trying the accused
Under the present Code a trial for murder is divided into two stages
There is a bifurcated trial
The first part of the trial is directed solely to the issue of guilt or innocence and concludes with the finding of the Sessions Judge on that issue
At the end of the trial when he comes to a conclusion of guilt he has to adjourn the case for hearing the accused on the question of sentence
Section 235 sub section
2 of the Code specifically provides for an opportunity of hearing to the accused on the question of sentence after a verdict of guilt is recorded against him
The burden is upon the prosecution to make out a case for imposition of the extreme penalty
Where a sentence of death is passed the Sessions Judge has to make a reference to the High Court under section 366 sub section
1 of the Code
Under section 367 sub section
1 if the High Court thinks a further inquiry should be made into or additional evidence taken upon any point bearing upon the guilt or innocence of the convicted person it may make such inquiry or take such evidence itself or direct it to be made or taken by the Court of Sessions
In a case submitted under section 366 the High Court under section 368a may either confirm the sentence or pass any other sentence ie reduce the sentence of death into a sentence of imprisonment for life
Thereafter an appeal lies to this Court by a special leave under Article 136 on the question of sentence
Failing the appeal there is the President s power to grant reprieve and pardon under Article 721 as well as the Governor s power of 160 commutation under Article 161 of the Constitution which is a sovereign function
The power of the President and of the Governor to grant reprieves and pardons is wide enough to include the power to commute and to remit sentence of punishment
All cases of capital punishment are closely scrutinised by the Executive at both the levels to see whether there are such extenuating circumstances as would justify a reprieve and the power to commute a death sentence is freely exercised whenever there is some doubt as to the severity of the punishment
Under the present system the prerogative of Mercy in the case of persons under sentence of death works well and it produces results generally regarded as satisfactory
It helps in mitigating the rigour of the death sentence particularly in case of those murderers whose execution would offend the public conscience
Very few persons under a sentence of death may be one or two in a year in a State are usually executed
Such cases are usually of the kind indicated by me above and even some of them escape the sentence of death
It is therefore not proper for the Court to trench upon the President s or the Governor s prerogative to grant pardon or reprieve under Articles 721 and 161 in taking upon itself the task of commutation of a death sentence which is properly imposed in the facts and circumstances of a particular case merely because there is a doubt that the Executive may commute the sentence ultimately or by one s views as to the utility of a death penalty
Judges are entitled to hold their own views but it is the bounden duty of the Court to impose a proper punishment depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders
It is only in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience that the Court has the power as well as the duty to impose the death sentence
In view of these adequate safeguards it can hardly be asserted that the sentence of death provided for an offence of murder punishable under section 302 is de humanising  or that it is unnecessary 
With respect my learned brother Krishna Iyer J despite his sense of humanism does not appear to be wholly an abolitionist 
That is the impression I get from his various judgments on the subject
In Ediga Anamma and Bishan Dass he clearly accepts that where the crime is cruel and inhuman a death sentence may be called for
In the present judgment also he observes 161 If the murderous operation of a die hard criminal jeopardises social security in a persistent planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated
If society does not survive individual existence comes to nought
So one test for impost of death sentence is to find out whether the murderer others such a traumatic threat to the survival of social order
To illustrate if an economic offender who intentionally mixes poison in drugs professionally or wilfully adulterates intoxicating substances injuriously and knowingly or intentionally causes death for the sake of private profit such trader in lethal business is a menace to social security and is therefore a violator of social justice whose extinction becomes necessary for society s survival
Supposing a murderous band of armed dacoits intentionally derails a train and large number of people die in consequence if the ingredients of murder are present and the object is to commit robbery inside the train they practise social injustice and imperil social security to a degree that death penalty becomes a necessity if the crime is proved beyond doubt
There may be marginal exceptions or special extenuations but none where this kind of dacoity or robbery coupled with murder becomes a contagion and occupation and social security is so gravely imperilled that the fundamental rights of the defendant become a deadly instrument whereby many are wiped out and terror strikes community life
Then he reasonably  forfeits his fundamental rights and takes leave of life under the law
The style of violence and systematic corruption and deliberately planned economic offences by corporate top echelons are often a terrible technology of knowingly causing death on a macro scale to make a flood of profit
The definition of murder will often apply to them
But because of corporate power such murderous depredations are not charged
If prosecuted and convicted for murder they may earn the extreme penalty for taking the lives of innocents deliberately for astronomical scales of gain
Likewise if a man is murderer so hardened so bloodthirsty that within the prison and without he makes no bones 162 about killing others or carries on a prosperous business in cadavers then he becomes a candidate for death sentence
 My learned brother Krishna Iyer J wants the death penalty to be inflicted in the case of three categories of criminals namely 1 for white collar offences 2 for anti social offences and 3 for exterminating a person who is a menace to the society that is a hardened murderer 
Edwin H Stherland defines a white collar offence as a crime in relation to business 
1The validity of white collar crime as a crime has been a subject of severe controversy in social studies
Now white collar crime  as commonly understood means a crime committed by a person of respectability and of high social status in the course of his occupational role
It takes in such forms as restraint of trade mis representation in advertising infringement of patents unfair labour practices financial fraud unethical or illegal rebating and violation of trusts
It may also take the form of theft sale and export of entiques like sculptures any work of art of historical value illegal sale of narcotics and alcohol abortion fraudulent accident report income tax frauds etc
An anti social offence  may consist of sale of spurious drugs adulteration of articles of food meant for human consumption auto thefts sharp  business practices which do not conform to the national well being
Some of these offences must undoubtedly be ruthlessly dealt with
But unfortunately our penal laws do not provide for a death sentence for either white collar crimes or anti social offences although I wish they did at least for certain anti social offences
There will be general measure of agreement that some of the serious anti social offences call for a death sentence viz acts of sabotage by a person who hijacks a plane and the like and large number of persons die or are injured in consequence or disrupts lines of communications or holds up a train and commits armed robbery with murder inside the train
He is a menace to the society and deserves a death sentence as his existence does not conform to the national well being
Like wise a person who indulges in theft or illegal trade and export of art treasures such as invaluable monuments paintings and sculptures of historical importance and of priceless antiques of what remains of our national heritage or in adulteration of articles of food meant for human consumption or in manufacturing and selling of spurious drugs or engages in illegal sale in narcotics or alcohol which are injurious to the very life of the community also deserves a death sentence as in many other countries or at any rate a sentence of imprisonment for life
The same applies to economic offences which may disrupt the economic life of the community as a whole like smuggling of gold and other contraband 163 goods which call for a very deterrent punishment
This is necessary to protect the basic economic order of the nation
But these are all matters for the Parliament to decide
It may be stated that the State of West Bengal has taken a step forward in that direction
The Prevention of Adulteration of Food Drugs and Cosmetics Act 1973 West Bengal Act 42 of 1973 makes the offence of sale of spurious drugs adulteration of articles of food meant for human consumption etc punishable with imprisonment for life
As regards hardened  murderers I am afraid there are few to be found
Many murders unfortunately go undetected and many a brutal murderer has to be acquitted for want of legal evidence bringing his guilt beyond all reasonable doubt
Nevertheless when the guilt is proved the Court should leave aside all humanitarian considerations if the extreme penalty is called for
A professional  murderer must as a matter of course be sentenced to death because he is a menace to the society
Whatever sympathy the Court can have should be reserved for the victims of the crime rather than for the perpetrators
In such cases the law must take its course
I do not intend to enter upon any philosophical dialectics as to the utility  of the death sentence or enter into the controversy whether it is unnecessary  brutal  or dehumanizing  but I would for my part like to say that I am of the opinion with much deference for the great authority of those who think otherwise that the weight of evidence and reason is in favour of the retention of the death penalty
I am afraid if the Courts were to be guided by the classification made by the majority the death sentence for an offence of murder punishable under section 302 for all practical purposes would be virtually non existent
I feel that it is not necessary for the purposes of these appeals to refer to the Indian Penal Code Amendment Bill 1976 which by section 125 introduces a new section 302 in the Indian Panel Code 1860
The re drafted section seeks to bring about a change in the law
It abolishes the liability to suffer the death sentence on conviction of murder and substitutes the sentence of imprisonment for life by sub section
1 except in cases of certain first degree murders falling within sub section
2 thereof
The cases in which the death sentence is to be retained are those where in the view of the Government murder is most dangerous to the preservation of law and order and where the death sentence is likely to be a particularly effective deterrent viz pre planned murders involving extreme brutality and murders involving exceptional depravity
The Bill is not before the Court
It is therefore not proper to deal with it
164 It is however necessary to emphasise that if there has to be a law reform at all some regard must be had to the plight of the victim or his or her family by making provision for payment of compensation
While it is commonly accepted that those convicted of violations of the criminal law must pay their debt to society little emphasis is placed upon requiring offenders to pay their debt to their victims
These again are matters for the Parliament to provide
From a life time of experience Sir John Beaumont speaking with unrivalled authority told the Royal Commission on Capital Punishment1 that the alternative sentence under section 302 of the Indian Penal Code 1860 had worked well in India and that he had never himself felt that the responsibility of choosing between the sentence of death and a lesser punishment was unfair or excessive nor had he ever heard any Judge in India express such a feeling
He expressed the opinion that there was no class of offences in which the degree of moral culpability differs more than in case of murder
It is wholly illogical to require a Judge to pass the same sentence in every case
In his view the proper solution lies in giving to the Judge the same discretion that he had in regard to other offences
A large body of judicial opinion still shares the same view
If Parliament thought it right to give to the Judges discretion as to the sentence I do not think they would or ought to shrink from the onerous responsibility
I feel it would not be appropriate for this Court to curtail the ambit of their discretion by judicial process
We cannot but be oblivious that a sentence of a wrong type that is to substitute a sentence of imprisonment for life where the death sentence is called for causes grave miscarriage of justice
A sentence or pattern of sentences which fails to take due account of the gravity of the offence can seriously undermine respect for law
Turning to the appeals before us I cannot say that the award of death sentence in any of these cases was not appropriate or uncalled for
In the three cases before us there were special reasons within the meaning of section 354 sub section
3 of the Code of Criminal Procedure 1973 for the passing of the death sentence in each and therefore the High Courts were justified in confirming the death sentences passed under 368a of the Code
In the circumstances any interference with the sentence of death in my view would be wholly unwarranted in each of these cases
165 In Rajendra Prasad s case the Allabhabad High Court in confirming the death sentence observes that the accused Rajendra is a desperate character  who after having been convicted under section 302 and undergone a sentence of imprisonment for life was released only a few days prior to the occurrence on October 2 1972 that is on the occasion of Gandhi Jayanti committed the brutal murder of the deceased Mansukh by striking him with a knife
On the date of occurrence that is on October 25 1972 at about 11 am the accused along with his brother Pooran rushed towards Sri Kishan brother of Rambharosay armed with a knife but Sri Kishan ran to safety and was not hurt
Later in the evening at about 530 pm the same day while Rambharosay and the deceased Mansukh were standing in the lane in front of Rambharosay s house the accused suddenly appeared and dealt several blows with the knife on vital parts of the body of Rambharosay but Rambharosay released himself from his grip and ran inside his house and bolted the door
The accused chased him all the way with the blood stained knife and knocked at the door asking him to open it
Meanwhile the deceased Mansukh came and tried to entreat the accused not to assault Rambharosay
Thereupon the accused struck deceased Mansukh who tried to escape but the accused chased him over a distance of 200 to 250 feet and inflicted repeated knife blows on the deceased resulting in his death
The deceased was done to death by the accused merely because he tried to prevent him from assaulting Rambharosay
Not only there are no mitigating circumstances but this was a pre planned cold blooded murder
While Rajendra was in jail his family members used to wield out a threat that the members of the family of Rambharosay would be dealt with after Rajendra is released from jail
The case of this accused is destructive of the theory of reformation
The therapeutic touch  which it is said is the best way of preventing repetition of the offence has been of no avail
Punishment must be designed so as to deter as far as possible from commission of similar offences
It should also serve as a warning to other members of society
In both respects the experiment of reformation has miserably failed
I am quite sure that with the commutation of his death sentence the accused will commit a few more murders and he would again become a menace to the community
In Kunjukunju Janardhanan s case the Kerala High Court while confirming the death sentence of the accused observes that he acted with extreme depravity
Infatuated by the charm of a village girl Smt
166 Santhamma then aged about 21 years the accused Kunjukunju Janardhanan aged 28 years committed the brutal murder of his innocent wife Smt
Chandramathi aged 26 years and his two minor sons Sunil aged 7 and Manoj aged 5 at the dead of night while they were sleep by repeatedly striking them with a sharp edged deadly weapon
It redounds to the credit of Smt
Santhamma PW 2 the village girl with whom the accused was on terms of illicit intimacy that she used to entreat him in her letters not to court her as it would destroy the happiness of his family
It was then that the accused wrote the letter Ext
P 2 that he would exterminate his wife and children once for all so that he may live happily with her
I fail to understand what is meant by the eternal triangle  as a mitigating circumstance
The accused who acted as a monster did not even spare his two innocent minor children in order to get rid of his wife and issues through her
If the death sentence was not to be awarded in a case like this I do not see the type of offence which calls for a death sentence
In Sheo Shankar Dubey s case the Allahabad High Court has found the accused Sheo Shankar guilty of triple murder and rightly confirmed the sentence of death passed on him
The accused Sheo Shankar murdered his uncle Narottam Dubey and his two sons Chandra Bhushan and Chandra Shekher
On the date of occurrence ie on June 15 1976 after there was a partition of the joint family lands between the deceased Narottam and Purushottam father of the accused Sheo Shankar there was a dispute regarding division of three bataulis
The three bataulis could not be equally divided because they were of different sizes
The accused insisted that they should be broken and then partitioned
Vidyawati widow of Narottam in fact in trying to pacify her brother in law Purushottam brought out one batauli and the remaining two were taken out by Chandra Shekhar
It all happened over the act of Chandra Shekher in flinging the two bataulis on the ground which collided making a sound showing his resentment
The expression of resentment implicit in the gesture of Chandra Shekhar infuriated the accused Sheo Shankar to such an extent that he committed the three murders in a row
These were nothing but first degree murders
The weapon used by the accused in committing the crime the manner in which the operation was carried out and the determination with which the accused acted as well as the number of injuries inflicted on the unfortunate victims give a clear picture of the cruelty and brutality 167 with which the accused murdered his uncle and his two sons
He first inflicted a knife blow on his uncle Narottam Dubey who tried to run away and as he turned the accused dealt him another knife blow resulting in his death on the spot
Narottam Dubey it appears attempted his best to escape
Even after he had sustained bleeding injuries at the hands of the accused he made an effort to run away but he was chased by the accused and the accused finished the victim with grim determination
His cousin Chandra Bhushan tried to intercept with a view to protect the life of his aged father but he was even not spared by the accused who struck a fatal blow on the chest
The second cousin Chandra Shekher who moved forward to save his brother was chased by the accused who also finished him of by a stroke of the blade of knife he wielded
It was no doubt a trifling incident over the division of three betaulis resulting in the triple murder
It is said that the murders were not pre meditated  but committed in the heat of passion over a family feud 
But that hardly furnishes a justification for the extreme brutality with which the accused acted
There is no inexorable rule that either the extreme youth of the accused or the fact that he acted in a heat of passion must always irrespective of the enormity of the offence or otherwise be treated as a sufficient ground for awarding the lesser punishment
The Court has to take into consideration all the circumstances which do not merit the extreme penalty
I find that in the facts and circumstances of this particular case these factors cannot outweigh other considerations
Three precious lives have been lost by the dastardly act of the accused
A family has been wiped off
The death sentence was clearly called for in this case firstly as a threat or warning to deter potential murderers and secondly as the guarantee against the brutalisation of human nature
The grim determination of the accused to bring the entire operation to the end desired by him is also reflected in the manner of his repelling the interception of Chandra Bhushan who went to the rescue of his father and Chandra Shekher who tried to rescue his brother Chandra Bhushan the unfortunate victims of the murderous assault
All these facts and circumstances to my mind constitute special reasons  why the accused should be sentenced to death
In retrospect I venture to say that in these appeals it cannot be asserted that the award of death sentence to the appellants was erroneous in principle 
Nor can it be said that the sentence of death passed on them was arbitrary or excessive or indicative of an improper exercise of discretion
It is the duty of the Court to impose a proper punishment 168 depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders
Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality will bring to nought the sentence of death provided by section 302 of the Indian Penal Code 1860
To allow the appellants to escape with the lesser punishment after they had committed such intentional cold blooded deliberate and brutal murders will deprive the law of its effectiveness and result in travesty of justice
I would therefore for these reasons dismiss the appeals
The appellants are at liberty to apply for reprieve for commutation of their sentence which is an executive act of clemency
ORDER In the light of the opinion of the majority the death sentence in each of these appeals is commuted to a sentence of imprisonment for life


Summary:
Per majority Krishna Iyer and Desai JJ  1
The only question before the Court is as to when and why shall capital punishment be pronounced on a murderer and why not in other cases within the confines of the Code
Urgency to the solution is obvious
The overt ambivalence and covert conflict among judges concerning continued resort to the death sentence mirrors the uncertainties and conflicts of values in the community itself
89G  90D 2
Section 302 of the IPC throws little light on when the court shall be the sentence of why the lesser penalty shall be preferred
Since law reflects life new meanings must permeate the Penal Code
Deprivation of life under our system is too fundamental to be permitted except on the gravest ground and under the strictest scrutiny
90F 94C D 3
To say that discretion of the Judge passing the sentence under section 302 IPC is guided by well recognised principles shifts the issue to what those recognised rules are
The big margin of subjectivism
a preference for old precedents theories of modern penology behavioral emphasis or social antecedents judicial hubris or human rights perspectives reverence for outworn social philosophers this plurality of forces plays a part in swining the pendulum of sentencing justice erratically
Until Parliament speaks this Court cannot be silent
95 97G 4
Executive commutation is no substitute for judicial justice at best it is administrative policy and at worst pressure based partiality
The criteria for clemency are often different 99C 5
In so far as section 302 IPC is concerned several attempts had been made to restrict or remove death penalty but never to enlarge its application
Parliamentary pressure has been to cut down death penalty although the section formally remains the same
In the case of the Criminal Procedure Code the legislative development has shifted the punitive centre of gravity from life taking to life sentence
In other words the legislative trend seems to be while formerly the rule was to sentence to death a person who is convicted for murder it is now to impose a lesser sentence for reasons to be recorded in writing
Formerly capital punishment was to be imposed unless special reasons could be found to justify the lesser sentence
After 1955 courts were left equally free to award either sentence
The 1973 Code has made an an mistakable shift in legislative emphasise under which life imprisonment for murder is the rule and capital sentence the exception for reasons to be stated
101D104B C 79 6
Criminologists all the world over however argued that death has decisively lost the battle and even in our Codes it has shrunk into a weak exception
What are the exceptional cases  Personal story of an actor in a shocking murder if considered may bring tears and soften the sentence
He might have been a tortured child an ill treated orphan a jobless man or the convict s poverty might be responsible for the crime
106G 107B 7
In the post Constitution period section 302 IPC and section 3453 of the Cr
PC have to be read in the humane light of Parts III and IV illumined by the Preamble to the Constitution
In other words the sacrifice of a life sentence is sanctioned only if otherwise public interest and social defence and public order would be smashed irretrievably
Such extraordinary grounds alone constitutionally qualify as special reasons
One stroke of murder hardly qualifies for this drastic requirement however gruesome the killing may be
The searching question the Judge must put to himself is what is so extra ordinari ly reasonable as to validate the wiping out of life itself and with it the great rights which inhere in him in the totality of facts
121F 110E F 8
The retributive theory has had its day and is no longer valid
Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal penacea
122C 9
The current ethos with its strong emphasis on human rights and against death penalty together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice which is a paramount principle and cultural paradigm of our Constitution l22C D 10
The personal and social the motivational and physical circumstances of the criminal are relevant factors in adjudging the penalty as clearly provided for under the Code of 1973
So also the intense suffering already endured by prison torture or agonishing death penalty hanging over head consequent on the legal process
112D El 11
Although the somewhat obsolescent Mc Naughten Rules codified in section 84 of the Penal Code alone are exculpatory mental imbalances neurotic upsets and psychic crises may be extenuatory and the sense of diminished responsibility may manifest itself in judicial clemency of commuted life incar ceration
l22F 12
The social justice which the Preamble and Part IV article 38 highlight as paramount in the governance of the country has a role to mould the sentence
If the murderous operation of a die hard criminal jeopardizes social security in a persistent planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated
One test for imposition of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order
Some of the principles are never hang unless society or its members may lose more lives by keeping alive an irredeemable convict
Therefore social justice projected by article 38 colours the concept of reasonableness in article 19 and non arbitrariness in article 14
This complex of articles validates death penalty in limited cases
Maybe train dacoity and bank robbery bandits reaching menacing proportions economic offenders profit killing in an intentional and organised way are such categories in a Third World setting
112D 114C 112G 80 13
Survival of an orderly society without which the extinction of human rights is a probability compels the higher protection of the law to those officers who are charged with the fearless and risky discharge of hazardous duties in strategic situations
Those officers of law like policemen on duty or soldiers and the like have to perform their functions even in the face of threat of violence sometimes in conditions of great handicap
If they are killed by designers of murder and the law does not express its strong condemnation in extreme penalisation justice to those called upon to defend justice may fail
This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence
123D E 14
Special reasons necessary for imposing death penalty must relate not to the crime as such but to the criminal
124E Jagmohan Singh vs State of UP   Ediga Annama vs State of AP   Sunil Batra vs Delhi Admn  at 569  572 referred to
Capital punishment in India The Impact of the Ediga Anamma by Prof A R Blackshield July 1977 referred to
Rajendra Prasad s case The family to which the appellant and the deceased belonged were on inimical terms
The appellant who was the son of one of the families murder ed the deceased
After some years in the prison he was released on Gandhi Jayanti day
On return some minor incident ignited his latent feud and he stabbed to death a friend of the opposite family he was sentenced to death
The second murder is not to be confounded with the persistent potential for murderous attacks by the murderer
This was not a menace to the social order but a specific family feud
Here was not a youth of controllable violent propensities against the community but one whose paranoid preoccupation with a family quarrel goaded him to go the rival
So long as the therapeutic processes are absent from prisons these institutions for from being the healing hope of society prove hardening schools to train desperate criminals
Desperate criminal is a convenient description to brand a person
Seldom is the other side of the story exposed to judicial view
There is nothing on record to suggest that the appellant was beyond redemption nothing on record hints at any such attempt inside the prison
The appellant showed no incurable disposition to violent outbursts against his fellow men
There is therefore no special reason to hang him
He should be awarded life imprisonment
Kunjukunju s case The appellant a married man with two children developed illicit sex relations with a fresh girl
In order to win her hand he murdered his wife and two children
There is no evidence to show that he was a desperate hedonist or randy rapist
He is not a social security risk altogether beyond salvage by therapeutic life sentence
Death sentence is commuted to life imprisonment
Dubey s case The appellant a young man aged about 20 stabbed to death three members of the family with whom his family had a quarrel over partition of 81 property
It is illegal in this case to award capital sentence without considering correctional possibilities inside prison
He was not a murderer born but made by the passion of family quarrel
He could be saved for society with correctional techniques and directed into repentance
A family feud an altercation a sudden passion although attended with extraordinary cruelty young and malleable age reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence these catenate of circumstances bearing on the offender call fol the lesser sentence
Sen l Dissenting 1
a It is constitutionally and legally impermissible for the Supreme Court while hearing an appeal by special leave under article 136 of the Constitution on a question of sentence to restructure section 302 of the Indian Penal Code 1860 or section 354 sub section
3 of the Code of Criminal Procedure 1973 so as to limit the scope of the sentence of death provided for the offence of murder under section 302
131F G b The question whether the scope of the death sentence should be curtailed or not is one for the Parliament to decide
The matter is essentially of political expediency and as such it is the concern of statesmen and therefore properly the domain of the legislature not the judiciary
137E c In an appeal confined to sentence under Article 136 of the Constitution Supreme Court has not only the power but as well as the duty to interfere if it considers that the appellant should be sentenced differently  that is to set aside the sentence of death and substitute in its place the sentence of imprisonment for life where it considers taking the case as a whole the sentence of death to be erroneous excessive or indicative of an improper exercise of discretion but at the same time the Court must impose some limitations on itself in the exercise of this broad power
In dealing with a sentence which has been made the subject of an appeal the Court will interfere with a sentence only where it is erroneous in principle 
The question therefore in each case is whether there is an error of principle  volved134G Hl d The Court has the duty to see that on the particular facts and circumstances of each case the punishment fits the crime
Mere compassionate sentiments of a humane feelings cannot be a sufficient reason for not confirming a sentence of death but altering it into a sentence of imprisonment for life
In awarding sentence the Court must as it should concern itself with justice that is with unswerving obedience to established law
It is and must be also concerned with the probable effect of its sentence both on the general public and the culprit
Judges are not concerned with the morales or ethics of a punishment
It is but their duty to administer the law as it is and not to say what it should be
It is not the intention of the Supreme Court to curtail the scope of the death sentence under section 302 by a process of judicial construction inspired by the personal views 35B 137D E 2
It is also not legally permissible for this Court while hearing an appeal in a particular case where a capital sentence is imposed to define the expression Special reasons occurring in sub section
3 of section 354 of the Code in such 82 virtually has the effect of abolishing the death sentence
137H a Under section 354 sub section
3 of the Code of Criminal Procedure 1973 the Court is required to state the reasons for a sentence awarded and in the case of imposition of a sentence of death the Judge has to record special reasons for imposing death sentence
Punishment for murder as a rule should be life imprisonment and death sentence is only an exception
l59A b It is neither feasible nor legally permissible for this Court to give a definite connotation to the expression special reasons occurring in section 354 sub section
3 of the Code of Criminal Procedure 1973
It is difficult to put special reasons in a straight jacket
Each case must depend on its own particular facts
The question of sentence must be left to the discretion of the Sessions Judge trying the accused
Under the present Code a trial for murder is divided into two stages
There is a bifurcated trial
The first part of the trial is directed solely to the issue of guilt or innocence and concludes with the finding of the Sessions Judge on that issue
At the end of the trial when he comes to a conclusion of guilt he has to adjourn the case for hearing the accused on the question of sentence
159C D Section 235 sub section
2 of the Code specifically provides for an opportunity of hearing to the accused on the question of sentence after a verdict of guilt is recorded against him
The burden is upon the prosecution to make out a case for imposition of the extreme penalty
Where a sentence of death is passed the Sessions Judge has to make a reference to the High Court under section 366 sub section
1 of the Code
Under section 367 sub section
1 if the High court thinks a further inquiry should be made into or additional evedence taken upon any point bearing upon the guilt or innocence of the convicted person it may make such inquiry or take such evidence itself or direct it to be made or taken by the Court of Sessions
In a case submitted under section 366 the High Court under section 368a may either confirm the sentence or pass any other sentence ie reduce the sentence of death into a sentence of imprisonment for life
thereafter an appeal lies to this Court by a special leave under Article 136 on the question of sentence
159E H Failing the appeal there is the President s power to grant reprieve and pardon under Article 72 1 as well as the Governor s power of commutation under Article 161 of the Constitution which is a sovereign function
The power of the President and of the Governor to grant reprieves and pardons is wide enough to include the power to commute and to remit sentence of punishment
All cases of capital punishment are closely scrutinised by the Executive at both the levels to see whether there are such extenuating circumstances as would justify a reprieve and the power to commute a death sentence is freely exercised whenever there is some doubt as to the severity of the punishment
Under the present system the Prerogative of Mercy in the case  of persons under sentence of death works well and it produces results gene rally regarded as satisfactory
It helps in mitigating the rigour of the death sentence particularly in case of those murderers whose execution would offend the public conscience
Very few persons under a sentence of death may be one or two in a year in a State are usually executed
It is therefore not proper for the Court to trench upon the President s or the Governor s perogative to grant pardon or reprieve under Articles 721 and 161 in taking 83 upon itself the task of commutation of a death sentence which is properly imposed in the facts and circumstances of a particular case merely because there is a doubt that the Executive may commute the sentence ultimately or by one s views as to the utility of death penalty
160A E Balwant Sing case  Ambaram s Case 11974 4 SCC 298 and Sarveshwar Prasad Sharma s case 11978 1 SCR 360 referred to
c Judges are entitled to hold their own views but it is the bounden duty of the Court to impose a proper punishment depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders
It is only in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience that the Court has the power as well as the duty to impose the death sentence
In view of these adequate safeguards it can hardly be asserted that the sentence of death provided for an offence of murder punishable under section 302 is dehumanizing  or that it is unnecessary 
Where the crime is cruel and inhuman a death sentence may be called for
160F H Ediga Anamma   Bishan Das  Ors  referred to
d If Parliament thought it right to give to the Judges discretion as to the sentence they would not or ought not to shrink from their onerous responsibility
It would not be appropriate to curtail the ambit of their discretion by judicial process
A sentence of a wrong type that is to substitute a sentence of imprisonment for life where the death sentence is called for causes grave miscarriage of justice
A sentence or pattern of sentences which fails to take due account of gravity of the offence can seriously undermine respect for law
164E F e In the three cases there were special reasons  within the meaning of section 354 sub section
3 of the Code of Criminal Procedure 1973 for the passing of the death sentence in each and therefore the High Courts were justified in confirming the death sentence passed under section 368a of the Code
Indeed they are illustrative of the rate type of cases that is first degree murders where a death sentence is usually awarded in any civilised country
These were cases of diobolical cold blooded brutal murders of innocent persons that is first degree murders of extreme brutality or depravity
The inhumanity of some of the offences defied belief Any interference with the sentence of death would be wholly unwarranted in each case
l64G f It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders
Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality will bring to nought the sentence of death provided for by section 302 of the Indian Penal Code 1860
To allow the appellants to escape with the lesser punishment after they had committed such intentional cold blooded deliberate and brutal murders will deprive the law of its effectiveness and result in travesty of justice
l68A B 84 g In these appeals it cannot be asserted that the award of death sentence to the appellants was erroneous in principle
Nor can it be said that the sentence of death passed on them was arbitrary or excessive or indicative of an improper exercise of discretion
167H i Rajendra Prasad s case is destructive of the theory of reformation
The therapeutic touch  which it is said is the best way of preventing repetition of the offence has been of no avail
Punishment must be designed so as to deter as far as possible from commission of similar offences
It should also serve as a warning to other members of society
In both respects the experiment of reformation has miserably failed
There is no doubt with the commutation of his death sentence the accused will commit a few more murders and he would again become a menace to the community
165G ii In Kunjukunju Janardhan s case the accused who acted as a monster did not even spare his two innocent minor children in order to get rid of his wife and issues through her
The death sentence was the only and appropriate penalty which should be awarded in such a case
166D h There is no inexorable rule that either the extreme youth of the accused or the fact that he acted in a heat of passion must always irrespective of the enormity of the offence or otherwise be treated as a sufficient ground for awarding the lesser punishment
The Court has to take into consideration all the circumstances which do not merit the extreme penalty
In the facts and circumstances of this particular case ie Sheo Shanker 
Dubey s case these factors cannot outweigh other considerations
Three precious lives have been lost by the dastardly act of the accused
A family has  been wiped off
The death sentence was clearly called for in this case E firstly as a threat or warning to deter potential murderers and secondly as the guarantee against the brutalisation of human nature
All facts and circumstances constitute special reasons  why the accused should be sentenced to death
167E Fl 3
It cannot be said that imposition of death penalty except in the classes of cases indicated in the majority Judgment would be violative of Articles 1419 and 21 of the Constitution
Such a question really does not arise forconsideration
136G a The citizen s right to life and personal liberty are guaranteed by Article 21 of the Constitution irrespective of his political beliefs class creed or religion
The Constitution has by Article 21 itself forged certain procedural safeguards for protection to the citizen of his life and personal liberty
The idealistic considerations as to the inherent worth and dignity of man is a fundamental and prevasive theme of the Constitution to guard against the execution of a citizen for his political beliefs
136C D b A patriot cannot be equated with an ordinary criminal
A humanistic approach should not obscure one s sense of realities
When a man commits a crime against the society by committing a diabolical cold blooded pre planned murder of an innocent person the brutality of which shocks the conscience of the Court he must face the consequences of his act
Such a person forfeits his right to life
136E3 85 Jagmohan Singh vs State of UP  followed
Furman vs Georgia   33 L ed 2nd 346 explained and differed from
Michael de Freites vs Gaorgie Ramouter Benny LR  quoted with approval
c If the Courts were to be guided by the classification for inflicting death penalty only in the case of three categories of criminals namely i for white collar offences ii for anti social offences and iii for exterminating a person who is a menace to the society that is a hardened murderer  the death sentence for an offence of murder punishable under section 302 for all practical purposes would be virtually non existent
Unfortunately our penal laws do not provide for death sentence for either white collar crimes or anti social offences
As regards hardened  murderers there are few to be found
Many murders unfortunately go undetected and many a brutal murderer has to be acquitted for want of legal evidence bringing his guilt beyond reasonable doubt
Nevertheless when the guilt is proved the Court should leave aside all humanitarian considerations if the extreme penalty is called for
A professional  murderer must as matter of course be sentenced to death because he is menace to the society
Whatever sympathy the Court can have should be reserved for the victims of the crime rather than for the perpatrators
In such cases the law must take its course
162B E 163C D 4
The criminality of a crime consists not only in the criminal act but in what that signifies
Its immediately apparent features the obvious damage to person or property or to public security are symptoms of a deeper disorder
It betokens and it fosters an attitude in man to man of reckless selfishness decit or malice which is incompatible in the long run with any decent social life
In any advanced society it is in part at least on account of this wider character less easily discerned that the graver offence are Punished
l43E F a All punishment properly implies moral accountability
It is related to injury and not only to damage or danger however greater
Capital punishment does so in an eminent degree
It is directed against one who is ex hypothesi an inhuman brute ie it is imposed simply to eliminate who is held to have become irretrievably a Iiability or a menace to society
142E b Punishment like crime has a dual character
The penalty which the convicted murderer incurs is not simply death but death in disgrace and death as a disgrace
In so far as capital punishment is a threat the threat consists not only in death but in infamy
Any theory which ignores this characteristic is certainly defective
l43F Sir Walter Moberly The Ethics of Punishment Ch
Xl Capital Punishment pp
271 81 referred to
c Punishment inflicted by the State in response to a violation of criminal law has been justified in various ways namely as society s vengeance upon the criminal as atonement by the wrong doer as a means of deterring other criminals as protection for the law abiding and as a way of rehabilitating the criminal
86 Theories of rehabilitation are largely speculative since there is lack of scientific evidence to support them though it has been influential in the development of modern penology144A B 5
a The capital punishment controversy falls within the strict limits of independent  parliamentary law making and is a typical or representative of the kind of problems that leaders of Parliament face every day
In short the case for abolition of the death sentence is political not constitutional The Government carries the responsibility of law and order
That is the first and fundamental duty of any Government
The Executive has the duty of advising the Government of the laws it believes necessary for the national wellbeing
It is the duty of the Court including this Court to administer the laws as they are
l57D E b Analysing the substantive merits of the cases for and against the death penalty for murder is essentially a question for the Parliament to resolve and not for the Supreme Court to decide
Therefore it would not be proper for the Judges to attempt to project their personal views in a matter which lies in the realm of political decision making by focussing on a single controversy the question of the proper penalty for the crime of murder
157B c Any justification for the capital sentence as for other salient features of the penal system must be sought in the protection of the society and that alone
145E Even where it has been legally retained as in India Capital Punishment is now seldom employed except in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience
Indeed the death penalty satisfies the society s retributive goals and is still presumed to be a deterrent to potential offenders Of the three purposes commonly assigned to punishment retribution deterrence and reformation deterrence is generally held to be the most important although the continuing public demand for retribution cannot be ignored
Prima facie the death sentence is likely to have a stronger affect as a deterrent upon normal human beings than any other form of punishment
People are believed to refrain from crime because they fear punishment
Since people fear death more than anything else the death penalty is the most effective deterrent
146C E d If the appeal of capital punishment were merely to fear of death it would be a very inefficient protector of society
In civilised society and in peace time government relies for obedience more on its moral prestige than on violent repression of crime
Punishment only protects life effectively if it produces in possible murderers not only fear of the consequences of committing murder but a horrified recoil for the thing itself It can only achieve this more ambitious task if sentence of death is felt to embody society s strongest condemnation of murder and keenest sense of its intolerable wickedness
It is not by the fear of death but by exciting in the community a sentiment of horror against any particular act that the offenders could be deterred from committing it
143B C Royal Commission on Capital Punishment Para 59 referred to
e The punishment of death should reflect adequately the revulsion felt for the gravest of crimes by the great majority of citizens
Legislators and Judges 87 share this revulsion themselves otherwise indeed their action would be morally indefensible
Their aim then should be not only to strike terror nor even to awaken popular indignation in a direction convenient to Government
It would be to arouse in all and sundry their Own indignant repudiation of a wicked act and at the same time to deepen it in themselves
In this vain sentence of death has been pronounced carried out and acclaimed with stern satisfaction
Otherwise the conscience of the community would be revolted if the criminals were allowed to live145F G 6a The theory that i the death penalty is per se cruel and unusual punishment and ii alternatively the inordinate delay in carrying it out makes it so has now been completely destroyed by two recent decisions of the Privy Council149F Eaton Baker v The Queen Freites vs George Ramouter Benny  discussed
b ln the United States of America also the death penalty has practically existed more or less harmoniously with humane theories of criminal justice for over two hundred years eg
151E i In Trop vs Dulles   L ed
630 the Court refused to consider the death penalty as an indent of the constitutional limit of punishment ii In McGouths vs California   it was held that the absence of any guidelines was not a violation of due process and iii In Furman vs Georgia the multiple opinions did not rule out altogether re imposition of the death penalty in the future provided there was legislative structuring of a permissible system providing for sufficient procedural safeguards iv Later on the death penalty has been reimposed and this judicial approach stood reoriented
The constitutionality of the death penalty was supported by four factors 1 the reference to capital punishment in the Constitution ii the past Supreme Court decisions on the death penalty iii the limitations of judicial restraints and iv the doctrine of separation of powers
151F 152D 154E M Cherif Bassi Owni Substantive Criminal Law p 120 128 referred to and v In Gregg vs Georgia   49 Led
859 Proffit vs Floride 1976 428 242  913 Jurek Texas    929 all concerned with discretionary sentencing procedures and in Woodson vs North Carolina   and Roberts vs Lonisiana  1976 428 US 326 both concerned with mandatory death sentence it was held that a the punishment of death did not invariably violates the Constitution b history and precedent did not support the conclusion that the death sentence was per se violation of 8th and 14th Amendments c the evolving standards of decency arguments had been substantially under cut in the last four years because a large segment of the enlightened population regarded the death penalty as appropriate and necessary as seen in the new legislation passed in response to Furman d the death penalty was not inherently cruel and unusual
It served two principal social purposes retribution and deterrence and therefore the death sentence for the crime of murder was 1 not without justification 2 not unconstitutionally severe and 3 not invariably disproportionate to the crime and e that Furman mandated where discretionary sentencing was used there must be suitable direction and 88 limitation to minimise the risk of wholly and arbitrary and capricious action the bifurcated trial with standards modelled after the Modern Penal Code juries gave just such guidance
155F G 156A Observation