Supreme Court of India

Bachan Singh Etc. Etc vs State Of Punjab Etc. Etc on 16 August, 1982

Equivalent citations: 1982 AIR 1325, 1983 SCR (1) 145, AIR 1982 SUPREME COURT 1325, 1982 (3) SCC 24, 1982 (3) SCC 405, 1982 SCC(CRI) 535, 1983 (1) SCR 145, (1983) MAD LJ(CRI) 175, (1982) 2 SCJ 387

Author:
P.N. Bhagwati

Bench:
P.N. Bhagwati
,
Y.V. Chandrachud

PETITIONER:
BACHAN SINGH ETC. ETC.

Vs.

RESPONDENT:
STATE OF PUNJAB ETC. ETC.

DATE OF JUDGMENT16/08/1982

BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
CHANDRACHUD, Y.V. ((CJ)
SARKARIA, RANJIT SINGH
GUPTA, A.C.
UNTWALIA, N.L.

CITATION:
1982 AIR 1325 1983 SCR (1) 145
1982 SCC (3) 24 1982 SCALE (1)713
CITATOR INFO :
E 1983 SC1155 (3,4,5,6,8,9,12,13,23,27,28,29
RF 1989 SC 653 (17)
E&D 1989 SC1335 (10)
R 1989 SC2299 (2,3)
RF 1991 SC 345 (6,11)

ACT:
(A) Death Penalty, whether constitutionally valid ?-
Right to live, whether the provisions of section 302, Penal
Code, offends
Article 19
of the Constitution-Distinction
between "Public order" and "Law and Order"-Whether section
302, Penal Code, violates
Article 21
, the basic structure of
the Constitution and
Article 6(1)
of the International
Covenant on Civil and Political Rights as adopted by the
General Assembly of the United Nations and reiterated in the
Stockholm Declaration.
(B)
Code of Criminal Procedure
, 1973,
section 354(3)
-If

section 302
, Penal Code, is constitutional, whether the
sentencing procedure provided in
section 354(3)
of the Code
of Criminal Procedure, 1973 (Act II of 1974) is
unconstitutional on the ground that it invests with unguided
and untrammelled discretion and allows death sentence to be
arbitrarily or freakishly imposed on a person found guilty
of murder or any other capital offence punishable under the

Indian Penal Code
with death or, in the alternative with
imprisonment for life.
(C) Powers of the Supreme Court to lay down standards
or norms restricting the area of imposition of death penalty
to a narrow category of murders.

HEADNOTE:
Upholding the constitutionality of
section 302
, Penal
Code, and
section 354 (3)
of the Code of Criminal Procedure
Code. the Court.
^
HELD: Per majority.
Sarkaria, J. [On behalf of Chandrachud, C.J., A.C.
Gupta, N.L. Untwalia, JJ. and on his own behalf].
The right to life is not one of the rights mentioned in

Article 19 (1)
of the Constitution and the six fundamental
freedoms guaranteed under
Article 19(1)
are not absolute
rights. The condition precedent for the applicability of

Article 19
is that the activity which the impugned law
prohibits and penalises, must be within the purview of and
protection of
Article 19 (1).
[173 E, 174 A, B-C]
State of Bombay v. R.M.D. Chamarbaugwala, [1957] SCR
874 @ 920; Fatechand Himmatlal and Ors. v. State of
Maharashtra, [1977] 2 SCR 828 @ 840; A.K. Gopalan v. The
State of Madras, [1950] 1 SCR 88, followed.
2. The
Indian Penal Code
, particularly those of its
provisions which cannot be justified on the ground of
unreasonableness with reference to any of the specified
heads, such as "public order" in clauses (2), (3) and (4) is
not a law imposing restrictions on any of the rights
conferred by
Article 19 (1).
There are several offences
under the Penal Code, such as, theft, cheating, ordinary
assault, which do not violate or affect "public order", but
only "law and order". These offences injure only specific
individuals as distinguished from the public at large. It is
now settled that "public order" means "even tempo of the
life of the community". That being so, even all murders do
not disturb or affect "public order". Some murders may be of
purely private significance and the injury or harm resulting
therefrom affects only specific individuals, and,
consequently, such murders may not be covered by "public
order" within the contemplation of clauses (2), (3) and (4)
of
Article 19.
Such murders do not lead to public disorder
but to disorder simpliciter. Yet, no rational being can say
that punishment of such murderers is not in the general
public interest. It may be noted that general public
interest is not specified as a head in clauses (2) to (4) on
which restriction on the rights mentioned in clause (i) of
the Article may be justified.
[181 D-H, 182 A-B]
The real distinction between the areas of "law and
order" and "public order" lies not merely in the nature or
quality of the act, but in the degree and extent. Violent
crimes similar in nature, but committed in different
contexts and circumstances might cause different reactions.
A murder committed in given circumstances may cause only a
slight tremor, the wave length of which does not extend
beyond the parameters of law and order. Another murder
committed in different context and circumstances may unleash
a tidal wave of such intensity, gravity and magnitude, that
its impact throws out of gear the even flow of life.
Nonetheless, the fact remains that for such murders which do
not affect "public order", even the provision for life
imprisonment in
section 302
, Indian Penal Code, as an
alternative punishment, would not be justifiable under
clauses (2), (3) and (4) as a reasonable restriction in the
interest of "public order". Such a construction must,
therefore, be avoided. Thus construed,
Article 19
will be
attracted only to such laws, the provisions of which are
capable of being tested under clauses (2) to (5) of
Article
19.
[182 B-E]
R.S. Cooper v. Union of India, [1970] 3 SCR 530; Maneka
Gandhi v. Union of India, [1978] 2 SCR 621; Dr. Ram Manohar
Lohia's case, [1966]1 SCR 709; Hardhan Saha and Anr. v.
State of West Bengal, [1975] 1 SCR 778@ 784, followed.
3. From the decided cases of the Supreme Court, it is
clear that the test of direct and indirect effect was not
scrapped. Indeed there is no dispute that the test of "pith
and substance" of the subject-matter and of direct and of
incidental effect of legislation is a very useful test to
determine the question of legislative competence, i.e., in
ascertaining whether an Act falls under one Entry
while incidentally encroaching upon another Entry. Even for
determining the validity of a legislation on the ground of
infringement of fundamental rights, the subject matter and
the object of the legislation are not altogether irrelevant.
For instance, if the subject matter of the legislation
directly covers any of the fundamental freedoms mentioned in

Article 19 (1).
It must pass the test of reasonable ness
under the relevant head in clauses (2) to (6) of that
Article. If the legislation does not directly deal with any
of the rights in
Article 19 (1)
, that may not conclude the
enquiry. It will have to be ascertained further whether by
its direct and immediate operation, the impugned legislation
abridges any of the rights enumerated in
Article 19 (1).

[189 B-D]
The mere fact that the impugned law incidentally,
remotely or collaterally has the effect of abridging or
abrogating those rights, will not satisfy the test. If the
answer to the above queries be in the affirmative, the
impugned law in order to be valid must pass the test of
reasonableness under
Article 19.
But if the impact of the
law on any of the rights under clause (1) of
Article 19
is
merely incidental, indirect, remote or collateral and is
dependent upon factors which may or may not come into play,
the anvil of
Article 19
will not be available for judging
its validity. [190 A-C]
R.C. Cooper v. Union of India, [1970] 3 SCR 530; Maneka
Gandhi v. Union of India, [1978] 2 SCR 621; Subrahmanyam
Chattiar's case, [1940] FCR 188; Ram Singh v. State of
Delhi, [1951] SCR 451; Express Newspapers (P) Ltd. and Anr
v. The Union of India & Ors., [1959] SCR 12; Minnesota Ex.
Rel. Olson, [1930] 283 U.S. 697 @ 698; Sakal Papers (P) Ltd.
and Ors. v. The Union of India, [1962] 3 SCR 842; Naresh
Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr.,
[1966] 3 SCR 744; Bennett Coleman's case, AIR 1973 SC 106,
referred to.
4.
Section 299
defines "culpable homicide" and
section
defines culpable homicide amounting to murder.
Section
prescribes death or imprisonment for life as penalty for
murder. It cannot, reasonably or rationally, be contended
that any of the rights mentioned in
Article 19 (1)
of the
Constitution confers the freedom to commit murder or, for
the matter of that, the freedom to commit any offence
whatsoever. Therefore, penal laws, that is to say laws which
define offences and prescribe punishment for the commission
of offences do not attract the application of
Article 19
(1).
It cannot be said that the object of the penal laws is
generally such as not to involve any violation of the rights
conferred by
Article 19 (1)
because after the decision of
this Court in the Bank Nationalisation case the theory, that
the object and form of the State action alone determine the
extent of protection that may be claimed by an individual
and that the effect of the State action on the fundamental
right of the individual is irrelevant, stands discredited.
But the point of the matter is that, in pith and substance,
penal laws do not deal with the subject-matter of rights
enshrined in
Article 19 (1).
That again is not enough for
the purpose of deciding upon the applicability of
Article
, because even if a law does not, in its pith and
substance, deal with any of the fundamental rights conferred
by
Article 19 (1)
, if the direct and inevitable effect of
the law is such as to abridge or abrogate any of those
rights,
Article 19 (1)
shall have to be attracted. It would
then become necessary to test the
validity of even a penal law on the touchstone of that
Article. On this latter aspect of the matter, it is clear
that the deprivation of freedom consequent upon an order of
conviction and sentence is not a direct and inevitable
consequence of the penal law but is merely incidental to the
order of conviction and sentence which may or may not come
into play, that is to say, which may or may not be passed.

Section 302
of the Penal Code, therefore, does not have to
stand the test of
Article 19 (1)
of the Constitution. [190
C-H, 191 A-B]
The onus of satisfying the requirements of
Article 19
,
assuming that the Article applies. lies on the person
challenging its validity. There is initial presumption in
favour of the constitutionality of the state and the burden
of rebutting that presumption is thrown on the party who
challenges the constitutionality on the ground of
Article
19.
Behind the view that there is a presumption of
constitutionality of a statute and the onus to rebut the
same lies on those who challenge the legislation, is the
rationale of judicial restraint, a recognition of the limits
of judicial review, a respect for the boundaries of
legislative and judicial functions, and the judicial
responsibility to guard the trespass from one side or the
other. The primary function of the courts is to interpret
and apply the laws according to the will of those who made
them and not to transgress into the legislative domain of
policy-making. Even where the burden is on the State to show
that the restriction imposed by the impugned statute is
reasonable and in public interest, the extent and the manner
of discharge of the burden necessarily depends on the
subject-matter of the legislation, the nature of the
inquiry, and the scope and limits of judicial review.
[192 C-D, 193 A, C-D, 194 D-E]
Saghir Ahmad v. State of Uttar Pradesh, [1955] 1 SCR
707; Khyerbari Tea Co. v. State of Assam & Ors., A.I.R. 1964
SC 925; B. Banerjee v. Anita Pan, [1975] 2 SCR 774 @ 787;
Pathumma v. State of Kerala, [1978] 2 SCR 537; Dennis v.
United States, 341 US 494, 525: 95 L.Ed. 1137: 71 S. Ct.
857; Gregg v. Georgia, 428 US 153: 49 L.Ed. 2nd 859; State
of Madras v. V.G. Rao, [1952] SCR 597 @ 607; Jagmohan Singh
v. State of U.P., [1973] 2 SCR 541, referred to.
5. Statistical attempts to assess the true penological
value of capital punishment remain inconclusive. Firstly,
statistics of deterred potential murderers are hard to
obtain. Secondly, the approach adopted by the Abolitionists
is over simplified at the cost of other relevant but
imponderable factors, the appreciation of which is essential
to assess the true penological value of capital punishment.
The number of such factors is infinitude, their character
variable, duration transient and abstract formulation
difficult. Conditions change from country to country and
time to time. Due to the inconsistancy of social conditions,
it is not scientifically possible to assess with any degree
of accuracy, as to whether the variation in the incidence of
capital crime is attributable to the presence or absence of
death penalty in the penal law of that country for such
crimes.
[215 E-H, 216 A]
6. To sum up, the question whether or not death penalty
serves any penological purpose is a difficult, complex and
intractable issue. It has evoked strong, divergent views.
For the purpose of testing the constitutionality of the
impugned provision as to death penalty in
section 302
, Penal
Code, on the ground of reasonableness in the light of

Articles 19
and
of the Constitution, it is not necessary
to express any categorical opinion, one way or the other, as
to which of these two antithetical views, held by the
Abolitionists and Retentionists, is correct. It is
sufficient to say that the very fact that persons of reason,
learning and light are rationally and deeply divided in
their opinion on this issue, is a ground among others, for
rejecting the petitioners' argument that retention of death
penalty in the impugned provision, is totally devoid of
reason and purpose. If, notwithstanding the view of the
Abolitionists to the contrary, a very large segment of
people the world over, including sociologists, legislators,
jurists, judes and administrators still firmly believe in
the worth and necessity of capital punishment for the
protection of society, if in the perspective of prevailing
crime conditions in India, contemporary public opinion
chanalised through the people's representatives in
Parliament, has repeatedly in the last three decades,
rejected all attempts, including the one made recently, to
abolish or specifically restrict the area of death penalty,
if death penalty is still a recognised legal sanction for
murder or some types of murder in most of the civilised
countries in the world, if the framers of the Indian
Constitution were fully aware of the existence of death
penalty as punishment for murder, under the
Indian Penal
Code
, if the 35th Report and subsequent Reports of the Law
Commission suggesting retention of death penalty, and
recommending revision of the
Criminal Procedure Code
and the
insertion of the new
sections 235 (2)
and
354 (3)
in that
Code providing for pre-sentence hearing and sentencing
procedure on conviction for murder another capital offences
were before the Parliament and presumably considered by it
when in 1972-73 it took up revision of the Code of 1898, and
replaced it by the
Code of Criminal Procedure
, 1973, it
cannot be said that the provision of death penalty as an
alternative punishment for murder, in
section 302
, Penal
Code, is unreasonable and not in public interest. Therefore,
the impugned provision in
section 302
, violates neither the
letter nor the ethos of
Article 19.
[221 B-H, 222 A]
7. (i) Neither the new interpretative dimensions given
to
Articles 19
and
by the Supreme Court in Maneka Gandhi,
[1978] 2 SCR 621, and Charles Sobraj v. The Superintendent,
Central Jail, Tihar, New Delhi, [1979] 1 SCR 512, nor the
acceptance by India of the International Covenant on Civil
and Political Rights, makes any change in the prevailing
standards of decency and human dignity. The International
Covenant does not outlaw capital punishment for murder
altogether. [225 C-E]
(ii) In accordance with the interpretative principle
indicated by the Supreme Court in Maneka's case,
Article 21

will read as "No person shall be deprived of his life or
personal liberty except according to fair, just and
reasonable procedure established by valid law" or in its
converse positive form as "A person may be deprived of his
life or personal liberty in accordance with fair, just and
reasonable procedure established by valid law."
Article 21
,
thus, clearly
brings out the implication, that the Founding Fathers
recognised the right of the State to deprive a person of his
life or personal liberty in accordance with fair, just and
reasonable procedure established by valid law. In view of
the constitutional provisions-Entries 1 and 2 in List III
Concurrent List of Seventh Schedule
Articles 72 (1) (c)
, 161

and 134-it cannot be said that death penalty under
section
, Penal Code, per se or because of its execution by
hanging, constitutes an unreasonable, cruel or unusual
punishment. By reason of the same constitutional postulates,
it cannot be said that the framers of the Constitution
considered death sentence for murder or the prescribed
traditional mode of its execution as a degrading punishment
which would defile "the dignity of the individual" within
the contemplation of the Preamble to the Constitution. On
parity of reasoning, it cannot be said that death penalty
for the offence of murder violates the basic structure of
the Constitution. [222 E-H, 223 A-B, F-H]
(iii) Clauses (1) and (2) of
Article 6
of the
International Covenant on Civil and Political Rights do not
abolish or prohibit the imposition of death penalty in all
circumstances. All that they require is that, firstly, death
penalty shall not be arbitrarily inflicted; secondly, it
shall be imposed only for most serious crimes in accordance
with a law which shall not be an ex post facto legislation.
Thus, the requirements of these clauses are substantially
the same as the guarantees or prohibitions contained in

Articles 20
and
of our Constitution. India's commitment,
therefore, does not go beyond what is provided in the
Constitution and the
Indian Penal Code
and the
Criminal
Procedure Code
. The Penal Code prescribes death penalty as
an alternative punishment only for heinous crimes which are
not more than seven in number.
Section 354 (3)
of the
Criminal Procedure Code, 1973 in keeping with the spirit of
the International Covenant, has further restricted the area
of death penalty. India's penal laws, including the impugned
provisions and their application, are thus entirely in
accord with its international commitment. [224 G-H, 225 A-C]
8. The procedure provided in
Criminal Procedure Code

for imposing capital punishment for murder and some other
capital crimes under the Penal Code cannot, by any
reckoning, be said to be unfair, unreasonable or unjust. Nor
can it be said that this sentencing discretion, with which
the Courts are invested, amounts to delegation of its power
of legislation by Parliament. The impugned provisions do not
violate
Articles 14
, 19
and
of the Constitution.
[238 B, G-H, 239 A-B]

Section 235 (2)
of the Code of Criminal Procedure makes
not only explicit what according to the decision in
Jagmohan's case was implicit in the scheme of the Code, but
also bifurcates the trial by providing two hearings, one at
the preconviction stage and another at the pre-sentence
stage. And,
section 354 (3)
of the Code marks a significant
shift in the legislative policy underlying the Code, 1898,
as in force immediately before April 1, 1974, according to
which both the alternative sentences of death or
imprisonment for life provided for murder and for certain
other capital offences under the Penal Code, were normal
sentences. Now, according to this changed legislative policy
which is patent on the face of
section 354 (3)
, the normal
punishment for murder and six other capital offences under
the Penal Code is imprisonment for life (or imprisonment for
a term of years) and death penalty is an exception. [229 F-
G, A-B]
Although sub-section (2) of
section 235
of the Code
does not contain a specific provision as to evidence and
provides only for hearing of the accused as to sentence, yet
it is implicit in this provision that if a request is made
in that behalf by either the prosecution or the accused, or
by both, the Judge should give the party or parties
concerned an opportunity of producing evidence or material
relating to the various factors bearing on the question of
sentence. [230 E-F]
Jagmohan Singh v. State of U.P., [1973] 2 SCR 541,
reiterated.
Santa Singh v. State of Punjab, AIR 1973 SC 2385,
referred to.
9. The expression "special reasons" in the context of

section 354 (3)
obviously means "exceptional reasons"
founded on the exceptionally grave circumstances of the
particular case relating to crime as well as criminal. Thus,
the legislative policy now writ large and clear on the face
of
section 354 (3)
is that on conviction of murder and other
capital offences punishable in the alternative with death
under the Penal Code, the extreme penalty should be imposed
only in extreme cases. [236 C-D]
Balwant Singh v. State of Punjab, [1976] 2 SCR 684,
referred to.
10.
Section 235 (2)
of the Code provides for a
bifurcated trial and specifically gives the accused person a
right of pre-sentence hearing, at which stage, he can bring
on record material or evidence, which may not be strictly
relevant to or connected with the particular crime under
inquiry, but nevertheless have, consistently with the policy
underlined in
section 354 (3)
, a bearing on the choice of
sentence. The present legislative policy discernible from

section 235(2)
read with
section 354(3)
is that in fixing
the degree of punishment or making the choice of sentence
for various offences, including one under
section 302
, Penal
Code, the Court should not confine its consideration
"principally" or "merely" to the circumstances connected
with the particular crime, but also give due consideration
to the circumstances of the criminal. [237 C-E]
11. The Supreme Court should not venture to formulate
rigid standards in an area in which the Legislature so
warily treads. Only broad guidelines consistent with the
policy indicated by the Legislature can be laid down. But
this much can be said that in order to qualify for inclusion
in the category of "aggravating circumstances" which may
form the basis of "special reasons" in
section 354(3)
,
circumstances found on the facts of a particular case, must
evidence aggravation of an abnormal or special degree. [243
E-F, 254 B-C]
Gurbakash Singh Sibbia and Ors. v. State of Punjab,
[1980] 3 SCR p. 383, applied.
Hyman and Anr. v. Rose, [1912] AC 623, referred to.
12.
Sections 354 (3)
and
235 (2)
and other related
provisions of the Code of 1973 make it clear that for making
the choice of punishment or for ascertaining
the existence or absence of "special reasons" in that
context, the Court must pay due regard both to the crime and
the criminal. What is the relative weight to be given to the
aggravating and mitigating factors, depends on the facts and
circumstances of the particular case. More often than not,
these two aspects are so intertwined that it is difficult to
give a separate treatment to each of them. This is so
because "style is the man." In many cases, the extremely
cruel or beastly manner of the commission of murder is
itself a demonstrated index of the depraved character of the
perpetrator. That is why, it is not desirable to consider
the circumstances of the crime and the circumstances of the
criminal in two separate water-tight compartments. In a
sense, to kill is to be cruel and therefore all murders are
cruel. But such cruelty may vary in its degree of
culpability. And it is only when the culpability assumes the
proportion of extreme depravity that "special reasons" can
legitimately be said to exist.
[251 G-H, 252 A-C]
Rajendra Prasad v. State of U.P. [1979] 3 SCR p. 78,
Bishnu Deo Shaw v. State of West Bengal, [1979] 3 SCR p.
355, overruled.
13. There are numerous other circumstances justifying
the passing of the lighter sentence, as there are
countervailing circumstances of aggravation. "We cannot
obviously feed into a judicial computer all such situations
since they are astrological imponderables in an imperfect
and undulating society." Nonetheless, it cannot be over
emphasised that the scope and concept of mitigating factors
in the area of death penalty must receive a liberal and
expansive construction by the courts in accord with the
sentencing policy writ large in
section 354 (3)
. Judges
should never be blood-thirsty. Hanging of murderers has
never been too good for them. Facts and figures, albeit
incomplete, furnished by the Union of India, show that in
the past, Courts have inflicted the extreme penalty with
extreme infrequency-a fact which attests to the caution and
compassion which they have always brought to bear on the
exercise of their sentencing discretion in so grave a
matter. It is, therefore, imperative to voice the concern
that Courts, aided by the broad illustrative guidelines
indicated by the Supreme Court, will discharge the onerous
function with evermore scrupulous care and humane concern,
directed along the highroad of legislative policy outlined
in
section 354 (3)
, viz., that for persons convicted of
murder life imprisonment is the rule and death sentence an
exception. A real and abiding concern for the dignity of
human life postulates resistance to taking a life through
law's instrumentality. That ought Lot to be done save in the
rarest of rare cases when the alternative option is
unquestionably foreclosed. [255 E-H, 256 A-C]
Per Bhagwati J. (Dissenting)
1:1. Ordinarily, on the principle of stare decisis,
Judges would hold themselves bound by the view taken in an
earlier case and resist any attempt at reconsideration of
the same issue. But, for several weighty and given
considerations, the Court can depart from this precedential
rule in any particular case.
[258 A-B]
1:2. The rule of adherence to precedence is not a rigid
and inflexible rule of law, but it is a rule of practice
adopted by the Courts for the purpose of ensuring uniformity
and stability in the law. Otherwise there will be no
certainty and predictability in the law, leading to chaos
and confusion and in the process
destroying the rule of law, and increasing the labour of
judges. But this rule of adherence to precedents; though a
necessary tool "in the legal smithy," is only a useful
servant and can not be allowed to turn into a tyrannous
master. If the rule of stare decisis were followed blindly
and mechanically, it would dwarf and stultify the growth of
the law and affect its capacity to adjust itself to the
changing needs of the society. [258 B-C, D,E,F]
1:3 There are certain issues which transcend technical
considerations of stare decisis and if such an issue is
brought before the Court, it would be nothing short of
abdication of its constitutional duty for the Court to
refuse to consider such issue by taking refuge under the
doctrine of stare decisis. The Court may refuse to entertain
such an issue like the constitutional validity of death
penalty because it is satisfied that the previous decision
is correct but it cannot decline to consider it on the
ground that it is barred by the rule of adherence to
precedents. [259 E-G]
In the present case, there are two other supervening
circumstances which justify, may compel, re-consideration of
the decision in Jagmohan's case. The first is the
introduction of the new
Code of Criminal Procedure
in 1973,
which by
section 354
, sub-section (3) has made life sentence
the rule, in case of offences punishable with death or in
the alternative imprisonment for life and provided for
imposition of sentence of death only in exceptional cases
for special reasons. The second and the still more important
circumstance which has supervened since the decision in
Jagmohan's case is the new dimension of
Articles 14
and
unfolded by the Supreme Court in Maneka Gandhi v. Union of
India (1978) 2 SCR 663. This new dimension of
Articles 14

and
renders the death penalty provided in
section 302
of
the Indian Penal Code read with
section 354(3)
of the Code
of Criminal Procedure vulnerable to attack on a ground not
available at the time when Jagmohan's case was decided.
Furthermore, since Jagmohan's case was decided, India has
ratified two international instruments on Human Rights and
particularly the International Covenant on civil and
political rights.
[259 G-H, 260 A-D]
Jagmohan v. State of U.P. A.I.R. 1973 SC 947, dissented
from.
State of Washington v. Dawson and Company 264 U.S. 646;
68 L. Edn. 219 dissenting judgment quoted with approval.
Maneka Gandhi v. Union of India, [1978] 2 SCR 663
applied.
2:1. The constitutional validity of the death penalty
provided as an alternative punishment in
section 302
of the
Indian Penal Code read with
section 354
sub-section (3) of
the
Code of Criminal Procedure
cannot be sustained. Death
penalty does not serve any social purpose or advance any
constitutional value and is totally arbitrary and
unreasonable so as be violative of
Articles 14
, 19
, and
of the Constitution, [256 F, 257 E]
Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC
947. not followed.
2:2 The culture and ethos of the nation as gathered
from its history, its tradition and its literature would
clearly be relevant factors in adjudging the
constitutionality of death penalty and so would the ideals
and values embodied in the Constitution which lays down the
basic frame-work of the social and political structure of
the country, and which sets out the objectives and goals to
be pursued by the people in a common endeavour to secure
happiness and welfare of every member of the society. So
also standards or norms set by International organisations
and bodies have relevance in determining the constitutional
validity of death penalty and equally important in
construing and applying the equivocal formulae of the
Constitution would be the "wealth of non-legal learning and
experience that encircles and illuminates" the topic of
death penalty. [261 B-E]
2:3. The objective of the United Nations has been and
that is the standard set by the world body that capital
punishment should be abolished in all countries. This
normative standard set by the world body must be taken into
account in determining whether the death penalty can be
regarded as arbitrary, excessive and unreasonable so as to
be constitutionally invalid. [268 B-C]
2:4. The Constitution of India is a unique document. It
is not a mere pedantic legal text but it embodies certain
human values, cherished principles, and spiritual norms and
recognises and upholds the dignity of man. It accepts the
individual as the focal point of all development and regards
his material, moral and spiritual development as the chief
concern of its various provisions. It does not treat the
individual as a cog in the mighty all-powerful machine of
the State but places him at the centre of the constitutional
scheme and focuses on the fullest development of his
personality. The several provisions enacted in the
constitutions for the purpose of ensuring the dignity of the
individual and providing for his material, moral and
spiritual development would be meaningless and ineffectual
unless there is rule of law to invest them with life and
force.
[268 C-D, G-H]
2:5. The rule of law permeates the entire fabric of the
Constitution and indeed forms one of its basic features. The
rule of law excludes arbitrariness; its postulate is
'intelligence without passion' and 'reason freed from
desire'. Wherever we find arbitrariness or unreasonableness
there is denial of the rule of law. "Law" in the context of
the rule of law, does not mean any law enacted by the
legislative authority, howsoever arbitrary or despotic it
may be. Otherwise even under a dictatorship it would be
possible to say that there is rule of law, because every law
made by the dictator howsoever arbitrary and unreasonable
has to be obeyed and every action has to be taken in
conformity with such law. In such a case too even where the
political set up is dictatorial, it is law that governs the
relationship between men and men and between men and the
State. But still it is not a rule of law as understood in
modern jurisprudence because in jurisprudential terms, the
law itself in such a case being an emanation from the
absolute will of the dictator, it is in effect and substance
the rule of man and not of law which prevails in such a
situation. What is a necessary element of the rule of law is
that the law must not be arbitrary and irrational and it
must satisfy the test of reason and the democratic form of
polity seeks to ensure this element by making the framers of
the law accountable to the people. [269 A-E]
2:6. The rule of law has much greater vitality under
our Constitution than it has in other countries like the
United Kingdom which has no constitutionally enacted
Fundamental Rights. The rule of law has really three basic
and fundamental assumptions; one is that law making must be
essentially in the hands of a democratically elected
legislature, subject of course to any power in the executive
in an emergent situation to promulgate ordinance effective
for a short duration while the legislation is not in session
as also to enact delegated legislation in accordance with
the guidelines laid down by the legislature; the other is
that, even in the hands of a democratically elected
legislature, there should not be unfettered legislative
power; and lastly there must be an independent judiciary to
protect the citizen against excesses of executive and
legislative power and we have in our country all these three
elements essential to the rule of law. It is plain and
indisputable that under our Constitution law cannot be
arbitrary or irrational and if it is, it would be clearly
invalid, whether under
Article 14
or
Article 19
or
Article
, whichever be applicable. [275 E-H. 276 A-B]
Minerva Mill's case [1981] 1 SCR 206; Maneka Gandhi's
case [1978] 2 SCR 621; Airport Authority of India's case
[1979] 3 SCR 1014; A.K. Gopalan's case [1950] 3 SCR 88; F.C.
Mullen's case [1981] 2 SCR 516 referred to.
2:7. The Constitution does not in so many terms
prohibit capital punishment. In fact, it recognises death
sentence as one of the penalties which may be imposed by
law. Apart from
Article 21
, Clause (C) of
Article 72
also
recognises the possibility of a sentence of death being
imposed on a person convicted of an offence inasmuch as it
provides that the President shall have the power to suspend,
remit or commute the sentence of any person who is convicted
of an offence and sentenced to death. Therefore, the
imposition of death sentence for conviction of an offence is
not in all cases forbidden by the Constitution. But that
does not mean that the infliction of death penalty is
blessed by the Constitution or that it has the imprimatur or
seal of approval of the Constitution. The Constitution is
not a transient document but it is meant to endure for a
long time to come and during its life, situations may arise
where death penalty may be found to serve a social purpose
and its prescription may not be liable to be regarded as
arbitrary or unreasonable and therefore to meet such
situations, the Constitution had to make a provision and
this it did in
Article 21
and clause (c) of
Article 72
so
that, even where death penalty is prescribed by any law and
it is otherwise not unconstitutional, it must still comply
with the requirement of
Article 21
and it would be subject
to the clemency power of the President under clause (c) of

Article 72.
[276 D-H, 277 A-B]
2:8. From the legislative history of the relevant
provisions of the
Indian Penal Code
and the
Code of Criminal
Procedure
, it is clear that in our country there has been a
gradual shift against the imposition of death penalty. Life
sentence is now the rule and it is only in exceptional
cases, for special reasons, that death sentence can be
imposed. The legislature has however not indicated what are
the special reasons for which departure can be made from the
normal rule and death penalty may be inflicted. The
legislature has not given any guidance as to what are those
exceptional cases in which, deviating from the normal
rule, death sentence may be imposed. This is left entirely
to the unguided discretion of the court, a feature, which
has lethal consequences so far as the constitutionality of
death penalty is concerned. [277 C-D, 278 E-G]
Rajendra Prasad v. State of U.P. [1979] 3 S.C.R. 646,
referred to.
2:9. The problem of constitutional validity of death
penalty cannot be appreciated in its proper perspective
without an adequate understanding of the true nature of
death penalty and what it involves in terms of human anguish
and suffering. In the first place, death penalty is
irrevocable; it cannot be recalled. It extinguishes the
flame of life for ever and is plainly destructive of the
right to life, the most precious right of all, a right
without which enjoyment of no other rights is possible. If a
person is sentenced to imprisonment, even if it be for life,
and subsequently it is found that he was innocent and was
wrongly convicted, he can be set free. Of course, the
imprisonment that he has suffered till then cannot be undone
and the time he has spent in the prison cannot be given back
to him in specie but he can come back and be restored to
normal life with his honour vindicated, if he is found
innocent. But that is not possible where a person has been
wrongly convicted and sentenced to death and put out of
existence in pursuance of the sentence of death. In his
case, even if any mistake is subsequently discovered, it
will be too late, in every way and for every purpose it will
be too late, for he cannot be brought back to life. The
execution of the sentence of death in such a case makes
miscarriage of justice irrevocable. [281 F-H, 282 A-D]
2:10. Howsoever careful may be the procedural
safeguards, erected by the law before death penalty can be
imposed, it is impossible to eliminate the chance of
judicial error. No possible judicial safeguards can prevent
conviction of the innocent. It is indeed a very live
possibility and it is not at all unlikely that so long as
death penalty remains a constitutionaly valid alternative,
the Court or the State acting through the instrumentality of
the Court may have on its conscience the blood of an
innocent man. [283 D-E. G-H]
2:11. Judicial error in imposition of death penalty
would indeed be a crime beyond punishment. This is the
drastic nature of death penalty, terrifying in its
consequences, which has to be taken into account in
determining its constitutional validity. Death penalty is
barbaric and inhuman in its effect, mental and physical upon
the condemned man and is positively cruel. Its psychological
effect on the prisoner in the Death Row is disastrous. [284
E-F]
Furman v. Georgia 408 US 238; In Re Kemmler 136 US 436;
In Re Medley 134 US 160; quoted with approval.
2:12. Penological goals also do not justify the
imposition of death penalty for the offence of murder. The
prevailing standards of human decency are also incompatible
with death penalty. The standards of human decency with
reference to which the proportionality of the punishment to
the offence is required to be judged vary from society to
society depending on the cultural and spiritual
tradition of the society, its history and philosophy and its
sense of moral and ethical values. [302 A-B]
Moreover, it is difficult to see how death penalty can
be regarded as proportionate to the offence of murder when
legislatively it has been ordained that life sentence shall
be the rule and it is only in exceptional cases for special
reasons that death penalty may be imposed. It is obvious
from the provision enacted in
section 354 (3)
of the Code of
Criminal Procedure that death sentence is legislatively
regarded as disproportionate and excessive in most cases of
murder and it is only in exceptional cases that it can at
all be contended that death sentence is proportionate to the
offence of murder. But, then the legislature does not
indicate as to what are those exceptional cases in which
death sentence may be regarded as proportionate to the
offence and, therefore, reasonble and just. Death penalty
cannot be regarded as proportionate to the offence of
murder, merely because the murder is brutal, heinous or
shocking. The nature and magnitude of the offence or the
motive and purposes underlying it or the manner and extent
of its commission cannot have any relevance to the
proportionality of death penalty to the offence. [304 H, 305
A-D, 306 D-E]
2:13 The historical course through which death penalty
has passed in the last 150 years shows that the theory that
death penalty acts as a greater deterrent than life
imprisonment is wholly unfounded. Even the various studies
carried out clearly establish beyond doubt that death
penalty does not have any special deterrent effect which
life sentence does not possess and that in any event there
is no evidence at all to suggest that death penalty has any
such special deterrent effect. [316 A, 321 G-H]
2:14. Death penalty as provided under
section 302
of
the Indian Penal Code read with
section 354
sub-section (3)
of the
Code of Criminal Procedure
, 1973 does not sub-serve
any legitimate end of punishment, since by killing the
murderer it totally rejects the reformation purpose and it
has no additional deterrent effect which life sentence does
not possess and it is therefore not justified by the
deterrence theory of punishment. Though retribution or
denunciation is regarded by some as a proper end of
punishment, it cannot have any legitimate place in an
enlightened philosophy of punishment. Therefore, death
penalty has no rational penological purpose and it is
arbitrary and irrational and hence violative of
Articles 14

and
of the Constitution.
[340 D-F]
2:15. On a plain reading of
section 302
of the Indian
Penal Code which provides death penalty as alternative
punishment of murder it is clear that it leaves it entirely
to the discretion of the Court whether to impose death
sentence or to award only life imprisonment to an accused
convicted of the offence of murder.
Section 302
does not lay
down any standards or principles to guide the discretion of
the Court in the matter of imposition of death penalty. The
critical choice between physical liquidation and life long
incarceration is left to the discretion of the Court and no
legislative light is shed as to how this
deadly discretion is to be exercised. The court is left free
to navigate in an unchartered sea without any compass or
directional guidance. [341 A-C]
2:16. Actually
section 354 (3)
of the Criminal
Procedure Code makes the exercise of discretion more
difficult and uncertain. It is left to the Judge to grope in
the dark for himself and in the exercise of his unguided and
unfettered discretion decide what reasons may be considered
as 'special reasons' justifying award of death penalty and
whether in a given case any such special reasons exist which
should persuade the Court to depart from the normal rule and
inflict death penalty on the accused. There being no
legislative policy or principle to guide the Court in
exercising its discretion in this delicate and sensitive
area of life and death, the exercise of discretion of the
Court is bound to vary from judge to judge. What may appear
as special reasons to one judge may not so appear to another
and the decision in a given case whether to impose the death
sentence or to let off the offender only with life
imprisonment would, to a large extent, depend upon who is
the judge called upon to make the decision. The reason for
his uncertainty in the sentencing process is two-fold.
Firstly, the nature of the sentencing process is such that
it involves a highly delicate task calling for skills and
talents very much different from those ordinarily expected
of lawyers. Even if considerations relevant to capital
sentencing were provided by the legislature, it would be a
difficult exercise for the judges to decide whether to
impose the death penalty or to award the life sentence. But
without any such guidelines given by the legislature, the
task of the judges becomes much more arbitrary and the
sentencing decision is bound to vary with each judge.
Secondly, when unguided discretion is conferred upon the
Court to choose between life and death, by providing a
totally vague and indefinite criterion of 'special reasons'
without laying down any principles or guidelines for
determining what should be considered to be 'special
reasons', the choice is bound to be influenced by the
subjective philosophy of the judge called upon to pass the
sentence and on his value system and social philosophy will
depend whether the accused shall live or die. No doubt the
judge will have to give 'special reasons' if he opts in
favour of inflicting the death penalty, but that does not
eliminate arbitrariness and caprice, firstly because there
being no guidelines provided by the legislature, the reasons
which may appeal to one judge as 'special reasons' may not
appeal to another, and secondly, because reasons can always
be found for a conclusion that the judge instinctively
wishes to reach and the judge can bona fide and
conscientiously find such reasons to be 'special reasons'.
It is now recognised on all hands that judicial conscience
is not a fixed conscience; it varies from judge to judge
depending upon his attitudes and approaches, his
predilections and prejudices, his habits of mind and thought
and in short all that goes with the expression "social
philosophy". Further, the various decisions in which special
reasons have been given singly and cumulatively indicate not
merely that there is an enormous potential of arbitrary
award of death penalty by the High Court and the Supreme
Court but that, in fact, death sentence have been awarded
arbitrarily and freakishly.
[341 G, E-H, 342 E-H.
343 A-B, 353 E-F]
2:17. But where the discretion granted to the Court is
to choose between life and death without any standards or
guide-lines provided by the legislature,
the death penalty does become arbitrary and unreasonable.
The death penalty is qualitatively different from a sentence
of imprisonment. Whether a sentence of imprisonment is for
two yeaes or five years or for life, it is qualitatively the
same, namely, a sentence of imprisonment, but the death
penalty is totally of different. It is irreversible; it is
beyond recall or reparation; it extinguishes life. It is the
choice between life and death which the court is required to
make and this is left to its sole discretion unaided and
unguided by any legislative yardstick to determine the
choice. [356 G-H. 357 A-B]
2:18. The only yardstick which may be said to have been
provided by the legislature is that life sentence shall be
the rule and it is only in exceptional cases for special
reasons that death penalty may be awarded, but it is no
where indicated by the legislature as to what should be
regarded as 'special reasons' justifying imposition of death
penalty. The awesome and fearful discretion whether to kill
a man or to let him live is vested in the Court and the
Court is called upon to exercise this discretion guided only
by its own perception of what may be regarded as 'special
reasons' without any light shed by the legislature. It is
difficult to appreciate how a law which confers such
unguided discretion on the Court without any standards or
guidelines on so vital an issue as the choice between life
and death can be regarded as constitutionally valid. [357B-
D]
2:19. Death penalty in its actual operation is
discriminatory, for it strikes mostly against the poor and
deprived sections of the community and the rich and the
affluent usually escape from its clutches. This circumstance
also adds to the arbitrary and capricious nature of the
death penalty and renders it unconstitutional as being
violative of
Articles 14
and
21.
[366G-H]
3:1. When a law is challenged on the ground that it
imposes restrictions on the freedom guaranteed by one or the
other sub-clause of clause (1) of
Article 19
and the
restrictions are shown to exist by the petitioner, the
burden of estabilshing that the restrictions fall within any
of the permissive clauses (2) to (6) which may be
applicable, must rest upon the State. The State would have
to produce material for satisfying the Court that the
restrictions imposed by the impugned law fall with the
appropriate permissive clause from out of clauses (2) to (6)
of
Article 19
Of course there may be cases where the nature
of the legislation and the restrictions imposed by it may be
such that the Court may, without more, even in the absence
of any positive material produced by the State, conclude
that the restrictions fall within the permissible category,
as for example, where a law is enacted by the legislature
for giving effect to one of the Directive Principles of
State Policy and prima facie, the restrictions imposed by it
do not appear to be arbitrary or excessive. Where such is
the position, the burden would again shift and it would be
for the petitioner to show that the restrictions are
arbitrary or excessive and go beyond what is required in
public interest. But once it is shown by the petitioner that
the impugned law imposes restrictions which infringe one or
the other sub-clause of clause (1) of
Article 19
, the burden
of showing that such restrictions are reasonable and fall
within the permissible category must be on the State and
this burden the State may discharge either by producing
socio economic data before the Court or on consideration of
the provisions in the impugned
law read in the light of the constitutional goals set out in
the Directive Principles of State Policy. The test to be
applied for the purpose of determining whether the
restrictions imposed by the impugned law are reasonable or
not cannot be cast in a rigid formula of universal
application. The nature of the right alleged to have been
infringed, the underlying purpose of the restrictions
imposed, the extent and urgency of the evil sought to be
remedied, the value of human life. the disproportion of the
imposition, the social philosophy of the Constitution and
the prevailing conditions at the time would all enter into
the judicial verdict. And in evaluating such elusive factors
and forming his own conception of what is reasonable in all
the circumstances of a given case, it is inevitable that the
social philosophy and the scale of values of the judge
participating in the decision would play a very important
part. [293 G-H, 294 A-G]
State of Madras v. V.J. Row [1952] SCR 597. Shagir
Ahmed v. State of U.P. [1955] 1 SCR 707 followed.
Khyerbari Tea Co. v. State of Assam [1964] 5 SCR 975;
B. Banerjee v. Anita Pan [1975] 2 SCR 774; Ram Krishna
Dalmia v. S.R. Tandolkar & Ors. [1959] SCR 279; State of
Bombay v. R.M.D. Chamarbaugwala [1957] SCR 874; Mohd. Hanif
v. State of Bihar [1959] SCR 629; discussed and
distinguished.
Pathumma v. State of Kerala [1978] 2 SCR 537 referred
to.
3:2. The position in regard to onus of proof in a case
where the challenge is under
Article 21
is much clearer and
much more free from or doubt or debate than in a case where
the complaint is of violation of clause (1) of
Article 19.

Wherever there is deprivation of life, i.e. not only
physical existence, but also use of any faculty or limb
through which life is enjoyed and basic human dignity, or of
any aspect of personal liberty, the burden must rest on the
State to establish by producing adequate material or
otherwise that the procedure prescribed for such deprivation
is not arbitrary but is reasonable, fair and just. Where
therefore a law authorises deprivation of the right to life,
the reasonableness, fairness and justness of the procedure
prescribed by it for such deprivation must be established by
the State. The burden must lie upon the State to show that
death penalty is not arbitrary and unreasonable and serves a
legitimate social purpose, despite the possibility of
judicial error in convicting and sentencing an innocent man
and the brutality and pain, mental as well as physical,
which death sentence invariably inflicts upon the condemned
prisoner. The State must place the necesary material on
record for the purpose of discharging this burden which lies
upon it and if it fails to show by presenting adequate
evidence before the Court or otherwise that death penalty is
not arbitrary and unreasonable and does serve a legitimate
social purpose, the imposition of death penalty under

section 302
of the Indian Penal Code read with
section 354

sub-section (3) of the
Code of Criminal Procedure
would have
to be struck down as violative of the protection of
Article
21.
[295 A-C, 296 D-E]
3:3. There is a presumption in favour of the
constitutionality of a statute and the burden of showing
that it is arbitrary or discriminatory lies upon the
petitioner, because it must be presumed that the legislature
understands and
correctly appreciates the needs of its own people, that its
laws are directed to problems made manifest by experience
and that its discriminations are based on adequate grounds.
It would be a wise rule to adopt to presume the
constitutionality of a statute unless it is shown to be
invalid. But this rule is not a rigid inexorable rule
applicable at all times and in all situations. There may
conceivably be cases where having regard to the nature and
character of the legislation. the importance of the right
affected and the gravity the injury caused by it and the
moral and social issue involved in the determination, the
Court may refuse to proceed on the basis of presumption of
constitutionality and demand from the State justification of
the legislation with a view to establishing that it is not
arbitrary or discriminatory. [296 G-H, 298 C-E]
The burden rests on the State to establish by producing
material before the Court or authorities, that death penalty
has greater deterrent effect than life sentence in order to
justify its imposition under the law. If the State fails to
discharge this burden which rests upon it, the Court would
have to hold that death penalty has not been shown to have
greater deterrent effect and it does not therefore serve a
rational legislative purpose. [315 F-H]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
273 of 1979.

Appeal by special leave from the Judgment and Order
dated the 14th August, 1978 of the Punjab & Haryana High
Court in Criminal Appeal No. 234 of 1978)
WRIT PETITIONS NOS. 564, 165, 179, 168, 434, 89, 754, 756 &
976 of 1979.

(Under
Article 32
of the Constitution of India)
AND
Special Leave Petition (Criminal) No. 1732 of 1979
R.K. Jain, R.P. Singh, Shiv Kumar Sharma Suman, Kapoor
and Sukumar Sahu for the Petitioner in W.P. 564/79.

Dr. Y.S. Chitale, Mukul Mudgal and A.K. Ganguli for the
Petitioner in W.P. No. 165 of 1979.

Vimal Dave and Miss Kailash Mehta for the Petitioner in
W.P. 179 of 1979.

WP. Nos. 168 & 89 of 1979; Jail Petitions.
H.K. Puri, A.C. for the Appellant in Crl. Appeal.
S.S. Khanduja and Lalit Kumar Gupta for the Petitioner
in W.P. No. 434 of 1979.

L.N. Gupta for the Petitioner in S.L.P.
L.M. Singhvi and S.K. Jain for the Petitioner in WP.
754/79.

Harbans Singh for the Petitioner in W.P. 756/79
N.D. Garg for Mr. S.K. Bisaria and T.L. Garg for the
Petitioner in WP. 976 of 1979.

Soli J. Sorabjee, Sol. Genl. in WP. 564 & 165- U.R.
Lalit, in WP. 564; for U.O.I., R.N. Sachthey, for U.O.I.,
Gujarat, Haryana States, M.L. Shroff for Gujarat, Haryana &
Maharashtra, Miss A. Subhashini, and Mr. K.N. Bhatt, for
U.O.I. for Respondent No. 1 in WPs. 554, 179, R. 2 in WPs.
434 & 754, R.1 in WP. 165, R. 3 in WP. 756, R. 2 in WPs. 564
& 165. R in 168 & 89, RR 1 & 2 in WP. 756 and RR 1 and 3 in
WP. 754 of 1979.

D.P. Singh Chauhan, Addl. Advocate General, U.P. and
O.P. Rana for R. 2 in WP. 179.

R.S. Sodhi and Hardev Singh for R. 1 in WP. 434 &
Respondent in Crl. A. 273 of 1979.

R.S. Sodhi for Respondent No. 3 in WP. 434/79.
R.L. Kohli and R.C. Kohli for the compalinant in WP.
754/79.

D.P. Mukherjee for the Intervener No. 1.

Dr. LM Singhvi for the Intervener No. 2. Intervener No.
3 in person.

V.J. Francis for the intervener No. 4.

R.K. Garg and R.K. Jain for the intervener No. 5.
FOR THE ADVOCATES GENERAL:

1. Andhra Pradesh : P. Ramachandra Reddy, Advocate
General A.P. Rao and G.
Narayana
2. Gujarat : D.V. Patel, (Maharashtra)

3. Maharashtra : R.N. Sachthey, (Gujarat) M.N.
Shroff Gujarat & Maharashtra

4. Jammu & : Altaf Ahmed
Kashmir

5. Madhya : S.K. Gambhir
Pradesh

6. Punjab : R.S. Sodhi and Hardev Singh

7. Orissa : G.B. Patnaik, Advocate General
and R.K. Mehta

8. Tamil Nadu : A.V. Rangam

9. West Bengal : Sukumar Ghosh and G.S.
Chatterjee
The following Judgments were delivered:

SARKARIA, J. This reference to the Constitution Bench
raises a question in regard to the constitutional validity
of death penalty for murder provided in
Section 302
, Penal
Code, and the sentencing procedure embodied in sub-section
(3) of
Section 354
of the Code of Criminal Procedure, 1973.

The reference has arisen in these circumstances:

Bachan Singh, appellant in Criminal Appeal No. 273 of
1979, was tried and convicted and sentenced to death under

Section 302
, Indian Penal Code for the murders of Desa
Singh, Durga Bai and Veeran Bai by the Sessions Judge. The
High Court confirmed his death sentence and dismissed his
appeal.

Bachan Singh's appeal by special leave, came up for
hearing before a Bench of this Court (consisting of Sarkaria
and Kailasam, JJ.). The only question for consideration in
the appeal was, whether the facts found by the Courts below
would be "special reasons" for awarding the death sentence
as required under
Section 354(3)
of the Code of Criminal
Procedure 1973.

Shri H.K. Puri, appearing as Amicus Curiae on behalf of
the appellant, Bachan Singh, in Criminal Appeal No. 273 of
1979.
contended that in view of the ratio of
Rajendra Prasad v.
State of U.P.
,(1) the Courts below were not competent to
impose the extreme penalty of death on the appellant. It was
submitted that neither the circumstance that the appellant
was previously convicted for murder and committed these
murder after he had served out the life sentence in the
earlier case, not the fact that these three murders were
extremely heinous and inhuman, constitutes a "special
reason" for imposing the death sentence within the meaning
of
Section 354(3)
of the Code of Criminal Procedure 1973.
Reliance for this argument was placed on Rajendra Prasad
(ibid) which according to the counsel, was on facts very
similar, if not identical, to that case.

Kailasam, J. was of opinion that the majority view in
Rajendra Prasad taken by V.R. Krishna Iyer, J, who spoke for
himself and D.A. Desai, J., was contrary to the judgment of
the Constitution Bench in
Jagmohan Singh v. State of Uttar
Pradesh
(2), inter alia, on these aspects:

(i) In Rajendra Prasad, V.R. Krishna Iyer, J. observed
:

"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
charged with compassion, an interpretative liberation
from colonial callousness to life and liberty, a
concern for social justice as setting the sights of
individual justice, interest with the inherited text of
the Penal Code to yield the goals desiderated by the
Preamble and
Articles 14
, 19
and
21."

According to Kailasam, J., the challenge to the
award of the death sentence as violative of
Articles
, 14
and
, was repelled by the Constitution Bench
in
Jagmohan
's case.

(ii) In
Jagmohan
's case, the Constitution Bench
held:

"The impossibility of laying down standards (in
the matter of sentencing) is at the very core of
criminal law as administered in India which invests the
judges with a
very wide discretion in the matter of fixing the degree
of punishment and that this discretion in the matter of
sentence in liable to be corrected by superior
Courts... The exercise of judicial discretion on well
recognised principles is, in the final analysis, the
safest possible safeguard for the accused."

In Rajendra Prasad, the majority decision characterised
the above observations in Jagmohan as: "incidental
observations without concentration on the sentencing
criteria", and said that they are not the ratio of the
decision, adding. "Judgments are not Bible for every line to
be venerated."

(iii) In Rajendra Prasad, the plurality observed:

"It is constitutionally permissible to swing a
criminal out of corporeal existence only if the
security of State and society, public order and the
interests of the general public compel that course as
provided in
Article 19(2)
to (6)."

This view again, according to Kailasam, J., is inconsistent
with the law
laid down by
the Constitution Bench in
Jagmohan, wherein it was held that deprivation of life is
constitutionally permissible if that is done according to
"procedure established by law".

(iv) In Rajendra Prasad, the majority has further
opined:

"The only correct approach is to read into Section

302.
I.P.C
. and
Section 354(3)
Cr. P.C., the human
rights and humane trends in the Constitution. So
examined, the rights to life and the fundamental
freedoms is deprived when he is hanged to death, his
dignity is defiled when his neck is noosed and
strangled."

Against the above, Kailasam, J. commented : 'The only
change after the Constitution Bench delivered its judgment
is the introduction of
Section 354(3)
which requires special
reasons to be given if the Court is to award the death
sentence. If without the restriction of stating sufficient
reasons death sentence could be constitutionally awarded
under the
I.P.C
. and Cr. P.C. as it stood before the
amendment, it is difficult to perceive how by requiring
special reasons to
be given the amended section would be unconstitutional
unless the "sentencing sector is made most restrictive and
least vagarious".

(v) In Rajendra Prasad, the majority has held that:

"Such extraordinary grounds alone constitutionally
qualify as special reasons as leave on 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 inherent
testimony coming 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, like
a bloodthirsty tiger, he has to quit his terrestrial
tenancy."

According to Kailasam, J., what is extracted above,
runs directly counter to and cannot be reconciled with the
following observations in
Jagmohan
's case:

"But some (murders) at least are diabolical in
conception and cruel in execution. In some others where
the victim is a person of high standing in the country,
society is liable to be recked to its very foundation.
Such murders cannot be simply wished away by finding
alibis in the social maladjustment of the murderer.
Prevalence of such crimes speaks, in the opinion of
many, for the inevitability of death penalty not only
by way of deterrence but as a token of emphatic
disapproval by the society A very responsible body (Law
Commission) has come to the conclusion after
considering all the relevant factors. On the
conclusions thus offered to us, it will be difficult to
hold that capital punishment as such is unreasonable or
not required in the public interest."

(vi) Kailasam, J. was further of the opinion that
it is equally beyond the functions of a Court to evolve
"working rules for imposition of death sentence bearing
the markings of enlightened flexibility and social
sensibility" or to make law "by cross-fertilisation
from sociology, history, cultural anthropology and
current national perils and developmental goals and,
above all, constitutional currents". This function, in
his view, belongs only to Parliament. The Court must
administer the law as it stands.

(vii) The learned Judge has further expressed that the
view taken by V.R. Krishna Iyer, J. in Rajendra Prasad
that " 'special reasons' necessary for imposing death
penalty must relate not to the crime as such, but to
the criminal" is not warranted by the law as it stands
today.

Without expressing his own opinion on the various
questions raised
in that case
including the one with regard
to the scope, amplification and application of
Section 354
(3)
of the Code of Criminal Procedure, 1974, Sarkaria, J.,
in agreement with Kailasam, J., directed the records of the
case to be submitted to the Hon'ble the Chief Justice, for
constituting a large Bench "to resolve the doubts,
difficulties and inconsistencies pointed out by Kailasam,
J."

In the meanwhile, several persons convicted of murders
and sentenced to death, filed writ petitions (namely, Writ
Petitions 564, 165, 179, 434, 89, 754, 756 and 976 of 1979)
under
Article 32
of the Constitution directly challenging
the constitutional validity of the death penalty provided in

Section 302
of the Indian Penal Code for the offence of
murder, and the sentencing procedure provided in
Section 354
(3)
of the Code of Criminal Procedure, 1974. That is how,
the matter has now come up before this larger Bench of five
Judges.

At the outset, Shri R.K. Garg submitted with some
vehemance and persistence, that Jagmohan's case needs
reconsideration by a larger Bench if not by the Full Court.
Reconsideration of Jagmohan, according to the learned
counsel, is necessitated because of subsequent events and
changes in law. Firstly, it is pointed out that when
Jagmohan was decided in 1972, the then extant
Code of
Criminal Procedure
, 1898 left the choice between death and
life imprisonment as punishment for murder entirely to the
discretion of the Court. This position has since undergone a
complete change and under
Section 354 (3)
of the Code of
Criminal Procedure, 1973, death sentence has ceased to be
the normal penalty for murder. Secondly,
it is argued, the seven-Judge decision of this Court in

Maneka Gandhi v. Union of India
(1) has given a new
interpretative dimension of the provisions of
Articles 21
,
and
and their inter-relationship, and according to
this new interpretation every law of punitive detention both
in its procedural and substantive aspects must pass the test
of all the three Articles. It is stressed that an argument
founded on this expansive interpretation of these Articles
was not available when Jagmohan was decided. Thirdly, it is
submitted that India has since acceded to the international
Covenant of Civil and Political Rights adopted by the
General Assembly of the United Nations, which came into
force in December 16, 1976. By virtue of this Covenant.
India and the other 47 countries who are a party to it,
stand committed to a policy for abolition of the 'death
penalty'.

Dr. L.M. Singhvi submitted that the question of death
penalty cannot be foreclosed for ever on the abstract
doctrine of stare decisis by a previous decision of this
Court. It is emphasised that the very nature of the problem
is such that it must be the subject of review from time to
time so as to be in tune with the evolving standards of
decency in a maturing society.

The learned Solicitor-General, Shri Soli Sorabji
opposed the request of Shri Garg for referring the matter to
a larger Bench because such a course would only mean
avoidable delay in disposal of the matter. At the same time,
the learned counsel made it clear that since the
constitutionality of the death penalty for murder was now
sought to be challenged on additional arguments based on
subsequent events and changes in law, he would have no
objection on the ground of stare decisis, to a fresh
consideration of the whole problem by this very Bench.

In view of the concession made by Shri Sorabji, we
proceeded to hear the counsel for the parties at length, and
to deal afresh with the constitutional questions concerning
death penalty raised in these writ petitions.

We have heard the arguments of Shri R.K. Garg.
appearing for the writ-petitioners in Writ Petition No.
564/79 for more than three weeks and also those of Dr. L.M.
Singhvi, Dr. Chitaley and
S/Shri Mukhoty, Dave and R.K. Jain, appearing for
interveners or for the other writ-petitioners.

We have also heard the arguments of Shri Soli Sorabji,
Solicitor-General, appearing for the Union of India and Shri
Patel appearing for the State of Maharashtra and the other
counsel appearing for the respondents.

The principal questions that fall to be considered in
this case are:

(I) Whether death penalty provided for the offence of
murder in
Section 302
, Penal Code is
unconstitutional.

(II) If the answer to the foregoing question be in the
negative, whether the sentencing procedure
provided in
Section 354 (3)
of the Code of
Criminal Procedure, 1973 (Act 2 of 1974) is
unconstitutional on the ground that it invests the
Court with unguided and untrammelled discretion
and allows death sentence to be arbitrarily or
freakishly imposed on a person found guilty of
murder or any other capital offence punishable
under the
Indian Penal Code
with death or, in the
alternative, with imprisonment for life.

We will first take up Question No. (I) relating to the
constitutional validity of
Section 302
, Penal Code.
Question No. (I):

Before dealing with the contentions canvassed, it will
be useful to have a short survey of the legislative history
of the provisions of the Penal Code which permit the
imposition of death penalty for certain offences.

The
Indian Penal Code
was drafted by the First Indian
Law Commission presided over by Mr. Macaulay. The draft
underwent further revision at the hands of well-known
jurists, like Sir Barnes Peacock, and was completed in 1850.
The
Indian Penal Code
was
passed by the then Legislature on October 6, 1860 and was
enacted as Act No XLV of 1860.

Section 53
of the Penal Code enumerates punishments to
which offenders are liable under the provisions of this
Code. Clause Firstly of the Section mentions 'Death' as one
of such punishments. Regarding 'death' as a punishment, the
authors of the Code say: "We are convinced that it ought to
be very sparingly inflicted, and we propose to employ it
only in cases where either murder or the highest offence
against the State has been committed." Accordingly, under
the Code, death is the punishment that must be awarded for
murder by a person under sentence of imprisonment for life
(
Section 303
). This apart, the Penal Code prescribes 'death'
as an alternative punishment to which the offenders may be
sentenced, for the following seven offences:

(1) Waging war against the Government of India. (s.

121)
(2) Abetting mutiny actually committed. (s. 132)
(3) Giving or fabricating false evidence upon which an
innocent person suffers death. (s. 194)
(4) Murder which may be punished with death or life
imprisonment. (s. 302)
(5) Abetment of suicide of a minor or insane, or
intoxicated person. (s. 305)
(6) Dacoity accompanied with murder. (s. 396)
(7) Attempt to murder by a person under sentence of
imprisonment for life if hurt is caused. (s. 307)
In the instant cases, the impugned provision of the

Indian Penal Code
is
Section 302
which says: "Whoever
commits murder shall be punished with death, or imprisonment
for life, and also be liable to fine." The related
provisions are contained in
Sections 299
and
.
Section
defines 'culpable homicide'.
Section 300
defines
'murder'. Its material part runs as follows:

"Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused
is done with the intention of causing death, or
Secondly-If it is done with the intention of causing
such bodily injury as the offender knows to be likely to
cause death of the person to whom the harm is caused, or
Thirdly-If it is done with the intention of causing
bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of
nature to cause death, or
Fourthly-If the person committing the act knows that it
is so imminently dangerous that it must, in all probability,
cause death, or such bodily injury as is likely to cause
death, and commits, such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid."

The first contention of Shri Garg is that the provision
of death penalty in
Section 302
, Penal Code offends
Article
of the Constitution. It is submitted that the right to
live is basic to the enjoyment of all the six freedoms
guaranteed in clauses (a) to (e) and (g) of
Article 19 (1)

of the Constitution and death penalty puts an end to all
these freedoms: that since death penalty serves no social
purpose and its value as a deterrent remains unproven and it
defiles the dignity of the individual so solemnly vouchsafed
in the Preamble of the Constitution, its imposition must be
regarded as an 'unreasonable restriction' amounting to total
prohibition, on the six freedoms guaranteed in
Article 19
(1).

Article 19
, as in force today, reads as under:

"19 (1). All citizens shall have the right-

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of
India;

(e) to reside and settle in any part of the
territory of India;

(f) .....................;
(g) to practice any profession, or to carry on
any occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (1) shall affect
the operation of any existing law, or prevent the State
from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of
the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States,
public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an
offence.

(3) Nothing in sub-clause (b) of the said clause shall
affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law
imposing, in the interests of the sovereignty and
integrity of India or public order, reasonable
restrictions on the exercise of the right conferred by
the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall
affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law
imposing, in the interests of the sovereignty and
integrity of India or public order or morality,
reasonable restrictions on the exercise of the right
conferred by the said sub-clause.

(5) Nothing in sub-clauses (d) and (e) of the said clause
shall affect the operation of any existing law in so
far as it imposes, or prevents the State from making
any law imposing, reasonable restrictions on the
exercise of any of the rights conferred by the said
sub-clauses either in the interests of the general
public or for the protection of the interests of any
Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall
affect the operation of any existing law in so far as
it imposes, or prevents the State from making any law
imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right
con-
ferred by the said sub-clause, and in particular,
nothing in the said sub-clause, shall affect the
operation of any existing law in so far as it relates
to, or prevent the State from making any law relating
to,-

(i) the professional or technical qualifications
necessary for practising any profession or
carrying on any occupation, trade or business, or

(ii) the carying on by the State, or by a corporation
owned or controlled by the State, of any trade,
business, industry or service, whether to the
exclusion, complete or partial, of citizens or
otherwise."

It will be seen that the first part of the Article
declares the rights in clause (1) comprising of six sub-
clauses namely, (a) to (e) and (g). The second part of the
Article in its five clauses (2) to (6) specifies the limits
upto which the abridgement of the rights declared in one or
more of the sub-clauses of clause (1), may be permitted.
Broadly speaking,
Article 19
is intended to protect the
rights to the freedoms specifically enumerated in the six
sub-clauses of clause (1) against State action, other than
in the legitimate exercise of its power to regulate these
rights in the public interest relating to heads specified in
clauses (2) to (6). The six fundamental freedoms guaranteed
under
Article 19 (1)
are not absolute rights. Firstly, they
are subject to inherent restraints stemming from the
reciprocal obligation of one member of a civil society to so
use his rights as not to infringe or injure similar rights
of another. This is on the principle sic utere tuo ut
alienum non laedas. Secondly, under clauses (2) to (6) these
rights have been expressly made subject to the power of the
State to impose reasonable restrictions, which may even
extend to prohibition, on the exercise of those rights.

The power, if properly exercised, is itself a safeguard
of the freedoms guaranteed in clause (1). The conferment of
this power is founded on the fundamental truth that
uncontrolled liberty entirely freed from restraint,
degenerates into a licence, leading to anarchy and chaos;
that libertine pursuit of liberty, absolutely free, and free
for all, may mean liberticide for all. "Liberty has,
therefore," as
Justice Patanjali Sastri put it, "to be limited in order to
be effectively possessed."

It is important to note that whereas
Article 21

expressly deals with the right to life and personal liberty,

Article 19
does not. The right to life is not one of the
rights mentioned in
Article 19 (1).

The first point under Question (1) to be considered is
whether
Article 19
is at all applicable for judging the
validity of the impugned provision in
Section 302
, Penal
Code.

As rightly pointed out by Shri Soli Sorabji, the
condition precedent for the applicability of
Article 19
is
that the activity which the impugned law prohibits and
penalises, must be within the purview and protection of

Article 19 (1).
Thus considered, can any one say that he has
a legal right or fundamental freedom under
Article 19 (1)
to
practise the profession of a hired assassin or to form
associations or unions or engage in a conspiracy with the
object of committing murders or dacoities. The argument that
the provisions of the Penal Code, prescribing death sentence
as an alternative penalty for murder have to be tested on
the ground of
Article 19
, appears to proceed on the fallacy
that the freedoms guaranteed by
Article 19 (1)
are absolute
freedoms and they cannot be curtailed by law imposing
reasonable restrictions, which may amount to total
prohibition. Such an argument was advanced before the
Constitution Bench in
The State of Bombay v. R.M.D.
Chamarbaugwala
.(1) In that case the constitutional validity
of certain provisions of the Bombay Lotteries and Prize
Competition Control Act, 1952, as amended by
Bombay Act
No.
XXX of 1952, was challenged on the ground, inter alia, that
it infringes the fundamental rights of the promoters of such
competitions under
Article 19 (1) (g)
, to carry on their
trade or business and that the restrictions imposed by the
said Act cannot possibly be supported as reasonable
restrictions in the interest of the general public
permissible under
Article 19 (b).
It was contended that the
words "trade" or "business" or "commerce" in sub-clause (g)
of
Article 19 (a)
should be read in their widest amplitude
as any activity which is undertaken or carried on with a
view to earning profit since there is nothing in
Article 19
(1) (g)
which may qualify or cut down the meaning of the
critical words; that there is no justification for excluding
from the meaning
of those words activities which may be looked upon with
disfavour by the State or the Court as injurious to public
morality or public interest. Speaking for the Constitution
Bench, S.R. Das, C.J. repelled this contention, in these
terms:

"On this argument it will follow that criminal
activities undertaken and carried on with a view to
earning profit will be protected as fundamental rights
until they are restricted by law. Thus there will be a
guaranteed right to carry on a business of hiring out
goondas to commit assault or even murder, or house-
breaking, or selling obscene pictures, of trafficking
in women and so on until the law curbs or stops such
activities. This appears to us to be completely
unrealistic and incongruous. We have no doubt that
there are certain activities which can under no
circumstance be regarded as trade or business or
commerce although the usual forms and instruments are
employed therein. To exclude those activities from the
meaning of those words is not to cut down their meaning
at all but to say only that they are not within the
true meaning of those words."

This approach to the problem still holds the field. The
observations in Chamarbaugwala, extracted above, were
recently quoted with approval by V.R. Krishna Iyer., J.,
while delivering the judgment of the Bench in
Fatehchand
Himmatlal & Ors. v. State of Maharashtra
(1).

In
A.K. Gopalan v. The State of Madras
(2), all the six
learned Judges constituting the Bench held that punitive
detention or imprisonment awarded as punishment after
conviction for an offence under the
Indian Penal Code
is
outside the scope of
Article 19
, although this conclusion
was reached by them by adopting more or less different
approaches to the problem.

It was contended on behalf of A.K. Gopalan that since
the preventive detention order results in the detention of
the detenu in a cell, his rights specified in clauses (a) to

(e) and (g) of
Article 19 (1)
have been infringed.
Kania, C J. rejected this argument, inter alia, on
these grounds:

(i) Argument would have been equally applicable to a
case of punitive detention, and its acceptance
would lead to absurd results. "In spite of the
saving clauses (2) to (6), permitting abridgement
of the rights connected with each other, punitive
detention under several sections of the Penal
Code, e.g. for theft, cheating, forgery and even
ordinary assault, will be illegal, (because the
reasonable restrictions in the interest of "public
order" mentioned in clauses (2) to (4) of the
Article would not cover these offences and many
other crimes under the Penal Code which injure
specific individuals and do not affect the
community or the public at large). Unless such
conclusion necessarily follows from the article,
it is obvious that such construction should be
avoided. In my opinion, such result is clearly not
the outcome of the Constitution."

(The underlined words within brackets supplied.)
(At page 100 of the Report)

(ii) Judged by the test of direct and indirect effect
on the rights referred to in
article 19 (1)
, the
Penal Code is not a law imposing restrictions on
these rights. The test is that "the legislation to
be examined must be directly in respect of one of
the rights mentioned in the sub-clauses. If there
is a legislation directly attempting to control a
citizen's freedom of speech or expression or his
right to assemble peaceably and without arms,
etc., the question whether that legislation is
saved by the relevant saving clause of
Article 19

will arise. If, however, the legislation is not
directly in respect of any of these subjects, but
as a result of the operation of other legislation,
for instance, for punitive or preventive
detention, his right under any of these sub-
clauses is abridged, the question of the
application of
Article 19
does not arise. The true
approach is only to consider the directness of the
legislation and not what will be the result of the
detention otherwise valid, on the mode of the
detenu's life." (Pages 100-101).
(iii)"The contents and subject-matter of
articles 19

and
are thus not the same..." (Page 105).

"
Article 19 (5)
cannot apply to a substantive law
depriving a citizen of personal liberty." "
Article
19 (1)
does not purport to cover all aspects of
liberty or of personal liberty. Personal liberty
would primarily mean liberty of the physical body.
The rights given under
article 19 (1)
do not
directly come under that description. In that
Article only certain phases of liberty are dealt
with". (Page 106) "In my opinion therefore,

Article 19
should be read as a separate complete
Article". (Page 107).

Patanjali Sastri, J., also, opined "that lawful
deprivation of personal liberty on conviction and sentence
for committing a crime, or by a lawful order of preventive
detention is "not within the purview of
Article 19
at all,
but is dealt with by the succeeding
Articles 20
and
21."

(Page 192). In tune with Kania, C.J., the learned Judge
observed: "A construction which would bring within
Article
imprisonment in punishment of a crime committed or in
prevention of a crime threatened would, as it seems to me,
make a reductio ad absurdum of that provision. If
imprisonment were to be regarded as a 'restriction' of the
right mentioned in
article 19 (1) (d)
, it would equally be a
restriction on the rights mentioned by the other sub-clauses
of clause (1), with the result that all penal laws providing
for imprisonment as a mode of punishment would have to run
the gauntlet of clauses (2) to (6) before their validity
could be accepted. For instance, the law which imprisons for
theft would on that view, fall to be justified under clause
(2) as a law sanctioning restriction of freedom of speech
and expression." (Page 192).

"
Article 19
confers the rights therein specified only
on the citizens of India, while
article 21
extends the
protection of life and personal liberty to all persons
citizens and non-citizens alike. Thus, the two Articles do
not operate in a coterminous field." (Page 193).

"(Personal liberty) was used in
Article 21
as a sense
which excludes the freedoms dealt in
Article 19 ....."

Rejecting the argument of the Attorney General, the
learned Judge held that clauses (4) to (7) of
Article 22
do
not form a complete
Code and that "the language of
Article 21
is perfectly
general and covers deprivation of personal liberty or
incarceration, both for punitive and preventive reasons."
(Page 207).

Mahajan, J., however, adopted a different approach. In
his judgment, "an examination of the provisions of
Article
clearly suggests that the intention was to make it self-
contained as regards the law of preventive detention and
that the validity of a law on the subject of preventive
detention cannot be examined or controlled either by the
provisions of
Article 21
or by the provisions of
Article
19(5)."
(Page 229).

Mukerjee, J. explained the relative scope of the
Articles in this group, thus: "To me it seems that
Article
of the Constitution gives a list of individual liberties
and prescribes in the various clauses the restraints that
may be placed upon them by law so that they may not conflict
with public welfare or general morality. On the other hand,

Articles 20
, 21
and
are primarily concerned with penal
enactments or other laws under which personal safety or
liberty of persons could be taken away in the interests of
the society and they set down the limits within which the
State control should be exercised. In my opinion, the group
of
articles 20
to 22 embody the entire protection guaranteed
by the Constitution in relation to deprivation of life and
personal liberty both with regard to substantive as well as
to procedural law." (Page 255).

"The only proper way of avoiding these anomalies is to
interpret the two provisions (
articles 19
and
) as
applying to different subjects. It is also unnecessary to
enter into a discussion on the question...as to whether

article 22
by itself is a self-contained Code with regard to
the law of Preventive Detention." (Page 257).

S.R. Das, J., also, rejected the argument that the
whole of the
Indian Penal Code
is a law imposing reasonable
restriction on the rights conferred by
Article 19 (1)
, with
these observations (at Page 303) :

"To say that every crime undermines the security
of the State and, therefore, every section of the

Indian Penal Code
, irrespective of whether it has any
reference to speech or expression, is a law within the
meaning of this clause is wholly unconvincing and
betrays only a vain and forlorn
attempt to find an explanation for meeting the argument
that any conviction by a Court of law must necessarily
infringe
article 19 (1) (a).
There can be no getting
away from the fact that a detention as a result of a
conviction impairs the freedom of speech for beyond
what is permissible under clause (2) of
article 19.

Likewise, a detention on lawful conviction impairs each
of the other personal rights mentioned in sub-clauses
(3) to (6). The argument that every section of the

Indian Penal Code
irrespective of whether it has any
reference to any of the rights referred to in sub-

clauses (b) to (e) and (g) is a law imposing reasonable
restriction on those several rights has not even the
merit of plausibility. There can be no doubt that a
detention as a result of lawful conviction must
necessarily impair the fundamental personal rights
guaranteed by
article 19 (1)
far beyond what is
permissible under clauses (2) to (6) of that article
and yet nobody can think of questioning the validity of
the detention or of the section of the
Indian Penal
Code
under which the sentence was passed."

(ii) Das, J. then gave an additional reason as to why
validity of punitive detention or of the sections of
the Penal Code under which the sentence was passed,
cannot be challenged on the ground of
article 19
, thus
:

"Because the freedom of his person having been
lawfully taken away, the convict ceases to be entitled
to exercise .. any of the .. rights protected by clause
(1) of
article 19."

(iii) The learned Judge also held that "
article 19

protects some of the important attributes of personal
liberty as independent rights and the expression
'personal liberty' has been used in
article 21
as a
compendious term including within its meaning all the
varieties of rights which go to make up the personal
liberties of men." (Page 299).

Fazal Ali, J. dissented from the majority. In his
opinion: "It cannot be said that
articles 19
, 20
, 21
and
do not to some extent overlap each other. The case of a
person who is convicted of an
offence will come under
article 20
and
and also under

article 22
so far as his arrest and detention in custody
before trial are concerned. Preventive detention, which is
dealt with in
article 22
, also amounts to deprivation of
personal liberty which is referred to in
article 19 (1)

(d)." (Page 148).

Fazal Ali, J. held that since preventive detention,
unlike punitive detention, directly infringes the right
under
Article 19(1)(d)
, it must pass the test of clause (5).
According to the learned Judge, only those laws are required
to be tested on the anvil of
Article 19
which directly
restrict any of the rights guaranteed in
Article 19(1).

Applying this test (of direct and indirect effect) to the
provisions of the
Indian Penal Code
, the learned Judge
pointed out that the Code "does not primarily or necessarily
impose restrictions on the freedom of movement, and it is
not correct to say that it is a law imposing restrictions on
the right to move freely. Its primary object is to punish
crime and not to restrict movement. The punishment may
consist in imprisonment or a pecuniary penalty. If it
consists in a pecuniary penalty, it obviously involves no
restriction on movement, but if it consists in imprisonment,
there is a restriction on movement. This restraint is
imposed not under a law imposing restrictions on movement
but under a law defining crime and making it punishable. The
punishment is correlated with the violation of some other
person's right and not with the right of movement possessed
by the offender himself. In my opinion, therefore, the

Indian Penal Code
does not come within the ambit of the
words "law imposing restriction on the right to move
freely."

(Pages 145-146).

In applying the above test, which was the same as
adopted by Kania, C.J., Fazal Ali, J. reached a conclusion
contrary to that reached by the Chief Justice, on the
following reasoning ;

"Punitive detention is however essentially
different from preventive detention. A person is
punitively detained only after trial for committing a
crime and after his guilt has been established in a
competent court of justice. A person so convicted can
take his case to the State High Court and sometimes
bring it to this Court also; and he can in the course
of the proceedings connected with his trial take all
pleas available to him including the plea of want of
jurisdiction of the Court of trial and the invalidity
of the law
under which he has been prosecuted. The final judgment
in the criminal trial will thus constitute a serious
obstacle in his way if he chooses to assert even after
his conviction that his right under
article 19(1)(d)

has been violated. But a person who is preventively
detained has not to face such an obstacle whatever
other obstacle may be in his way."

(Page 146)
We have copiously extracted from the judgments in
A.K.
Gopalan
's case, to show that all the propositions
propounded, arguments and reasons employed or approaches
adopted by the learned Judges
in that case
, in reaching the
conclusion that the
Indian Penal Code
, particularly those of
its provisions which do not have a direct impact on the
rights conferred by
Article 19(1)
, is not a law imposing
restrictions on those rights, have not been overruled or
rendered bad by the subsequent pronouncements of this Court
in Bank Nationalizaton(1) case or in
Maneka Gandhi
's case.
For instance, the proposition
laid down by
Kania, C.J.,
Fazal Ali, Patanjali Sastri, and S.R. Das, J.J. that the

Indian Penal Code
particularly those of its provisions which
cannot be justified on the ground on reasonableness with
reference to any of the specified heads, such as "public
order" in clauses (2), (3) and (4), is not a law imposing
restrictions on any of the rights conferred by
Article
19(1)
, still holds the field. Indeed, the reasoning,
explicit, or implicit in the judgments of Kania, C.J.,
Patanjali Sastri and S.R. Das JJ. that such a construction
which treats every section of the
Indian Penal Code
as a law
imposing 'restriction' on the rights in
Article 19(1)
, will
lead to absurdity is unassailable. There are several
offences under the Penal Code, such as theft, cheating,
ordinary assault, which do not violate or effect 'public
order,' 'but only law and order'. These offences injure only
specific individuals as distinguished from the public at
large. It is by now settled that 'public order' means 'even
tempo of the life of the community.' That being so, even all
murders do not disturb or affect 'public order'. Some
murders may be of purely private significance and the injury
or harm resulting therefrom affects only specific
individuals and, consequently, such murders may not be
covered by "public order" within the contemplation of
clauses (2), (3) and (4) of
article 19.
Such murders do not
lead to public disorder but to disorder simpliciter. Yet, no
rational being can say
(1) [1970] 3 SCR 530.
that punishment of such murders is not in the general public
interest. It may be noted that general public interest is
not specified as a head in clauses (2) to (4) on which
restriction on the rights mentioned in clause (1) of the
Article may be justified.

It is true, as was pointed out by Hidayatullah, J. (as
he then was) in Dr. Ram Manohar Lohia's(1) case, and in
several other decisions that followed it, that the real
distinction between the areas of 'law and order' and 'public
order' lies not merely in the nature or quality of the act,
but in the degree and extent. Violent crimes similar in
nature, but committed in different contexts and
circumstances might cause different reactions. A murder
committed in given circumstances may cause only a slight
tremor, the wave length of which does not extent beyond the
parameters of law and order. Another murder committed in
different context and circumstances may unleash a tidal wave
of such intensity, gravity and magnitude, that its impact
throws out of gear the even flow of life. Nonetheless the
fact remains that for such murders which do not affect
"public order", even the provision for life imprisonment in

Section 302
, Indian Penal Code, as as alternative
punishment, would not be justifiable under clauses (2), (3)
and (4) as a reasonable restriction in the interest of
'Public Order'. Such a construction must, therefore, be
avoided. Thus construed,
Article 19
will be attracted only
to such laws, the provisions of which are capable of being
tested under clauses (2) to (5) of
Article 19.

This proposition was recently (1975) reiterated in

Hardhan Saha & Anr. v. State of West Bengal
(2).

In accord
with this line of reasoning in
A.K. Gopalan
's case, a
Constitution Bench of this Court in Hardhan Saha's case
restated the principle for the applicability of
Article 19

by drawing a distinction between a law of preventive
detention and a law providing punishment for commission of
crimes, thus :

"Constitution has conferred rights under
Article
and also adopted preventive detention to prevent the
greater evil of elements imperilling the security, the
safety of a State and the welfare of the nation. It is
not possible to think that a person who is detained
will yet be free to move
(1) [1966] 1 S.C.R. 709.

(2) [1975] 1 S.C.R. 778 at p. 784.
for assemble or form association or unions or have the
right to reside in any part of India or have the
freedom of speech or expression. Suppose a person is
convicted of an offence of cheating and prosecuted (and
imprisoned) after trial, it is not open to say that the
imprisonment should be tested with reference to
Article
for its reasonableness. A law which attracts
Article
therefore must be such as is capable of being tested
to be reasonable under clauses (2) to 5 of
Article 19."

(emphasis and parenthesis supplied.)
The last sentence which has been underlined by us,
appears to lend implicit approval to the rule of
construction adopted by the majority of the learned Judges
in
A.K. Gopalan
's case, whereby they excluded from the
purview of
Article 19
certain provisions of the
Indian Penal
Code
providing punishment for certain offences which could
not be tested on the specific grounds-embodied in clauses
(2) to (5) of that Article. This proposition enunciated in
A.K. Gopalan's case is only a product of the application of
the basic canon that a construction which would lead to
absurdity, should be eschewed.

In R.C. Cooper v. Union of India (popularly known as
Bank Nationalization case), the majority adopted the two-
fold test for determining as to when a law violated
fundamental rights, namely: "(1) It is not the object of the
authority making the law impairing the right of a citizen,
nor the form of action that determines the protection he can
claim. (2) It is the effect of the law and of the action
upon the right which attract the jurisdiction of the Court
to grant relief. The direct operation of the act upon the
rights forms the real test."

In
Maneka Gandhi v. Union of India
(ibid), Bhagwati, J.
explained the scope of the same test by saying that a law or
and order made thereunder will be hit by
article 19
, if the
direct and inevitable consequence of such law or order is to
abridge or take away any one or more of the freedoms
guaranteed by
Article 19(1).
If the effect and operation of
the statute by itself, upon a person's fundamental rights is
remote or dependent upon "factors which may or may not come
into play", then such statute is not ultra-vires on the
ground of its being violative of that fundamental right.
Bhag-
wati J. described this proposition as "the doctrine of
intended and real effect" while Chandrachud, J. (as he then
was) called it "the test of proximate effect and operation
of the statute."

The question is, whether R.C. Cooper & Maneka Gandhi
have given a complete go-by to the 'test of direct and
indirect effect, sometimes described as form and object
test' or 'pith and substance rule', which was adopted by
Kania, C.J. and Fazal Ali, J. in
A.K. Gopalan
's case. In our
opinion, the answer to this question cannot be in the
affirmative. In the first place, there is nothing much in
the name. As Varadachariar, J. put it in Subrahmanyan
Chettiar's(1) case, such rules of interpretation were
evolved only as a matter of reasonableness and common sense
and out of the necessity of satisfactorily solving conflicts
from the inevitable overlapping of subjects in any
distribution of powers. By the same yardstick of common
sense, the 'pith and substance rule' was applied to resolve
the question of the constitutionality of a law assailed on
the ground of its being violative of a fundamental right.

Secondly, a survey of the decisions of this Court since
A.K. Gopalan, shows that the criterion of directness which
is the essence of the test of direct and indirect effect,
has never been totally abandoned. Only the mode of its
application has been modified and its scope amplified by
judicial activism to maintain its efficacy for solving new
constitutional problems in tune with evolving concepts of
rights and obligations in a strident democracy.

The test of direct and indirect effect adopted in A.K.
Gopalan was approved by the Full Court in
Ram Singh v. State
of Delhi
.(2) Therein, Patanjali Sastri, J. quoted with
approval the passages (i) and (ii) (which we have extracted
earlier) from the judgment of Kania, C. J. Although Mahajan
and Bose, JJ. differed on the merits, there was no dissent
on this point among all the learned Judges.

The first decision, which, though purporting to follow
Kania, C. J's. enunciation in A.K. Gopalan, imperceptibly
added another dimension to the test of directness, was

Express Newspapers (Private) Ltd. & Anr. v. The Union of
India & Ors.
(3) In that case, the cons-

(1) [1940] FCR 188.

(2) [1951] SCR 451.

(3) [1959] SCR 12.
titutional validity of the
Working Journalists (Conditions
of Service) and Miscellaneous Provisions Act, 1955
, and the
legality of the decision of the Wage Board, constituted
thereunder, were challenged. The impugned Act, which had for
its object the regulation of the conditions of service of
working journalists and other persons employed in newspaper
establishments, provided, inter alia, for the payment of
gratuity to a working journalist who had been in continuous
service for a certain period. It also regulated hours of
work and leave and provided for retrenchment compensation.

Section 9 (1)
laid down the principles that the Wage Board
was to follow in fixing the rates of wages of working
journalists.

One of the contentions of the petitioners
in that case

was that impugned Act violated their fundamental rights
under
Articles 19 (1) (a)
, 19 (1) (g)
, 14
and
of the
Constitution and that the decision of the Wage Board fixing
the rates and scales of wages which imposed too heavy a
financial burden on the industry and spelled its total ruin,
was illegal and void. It was contended by the learned
Attorney General
in that case
that since the impugned
legislation was not a direct legislation on the subject of
freedom of speech and expression.
Art. 19 (1)(a)
would have
no application, the test being not the effect or result of
legislation but its subject-matter. In support of his
contention, he relied upon the observations on this point of
Kania, C. J. in A. K. Gopalan. It was further urged that the
object of the impugned Act was only to regulate certain
conditions of service of working journalists and other
persons employed in the newspaper establishments and not to
take away or abridge the freedom of speech or expression
enjoyed by the petitioners and, therefore, the impugned Act
could not come within the prohibition of
Article 19 (1) (a)

read with
Article 32
of the Constitution.

On the other hand, the petitioners took their stand on
a passage in the decision of the Supreme Court of United
States in Minnesota Ex Rel. Olson,(1) which was as under :

"With respect to these contentions it is enough to
say that in passing upon constitutional questions the
Court has regard to substance and not to mere matters
of form, and that, in accordance with familiar
principles, the statute must be tested by its operation
and effect."

(1) [1930] 283 US 697 at p. 708.
It was further submitted that in all such cases, the Court
has to look behind the names, forms and appearances to
discover the true character and nature of the legislation.
Thus considered, proceeded the argument, the Act by laying a
direct and preferential burden on the press, would tend to
curtail the circulation, narrow the scope of dissemination
of information and fetter the petitioners' freedom to choose
the means of exercising their rights of free speech (which
includes the freedom of the press). It was further submitted
that those newspaper employers who were marginally situated
may not be able to bear the strain and have to disappear
after closing down their establishments.

N.H. Bhagwati, J. who delivered the unanimous Judgment
of the Constitution Bench, after noting that the object of
the impugned legislation is to provide for the amelioration
of the conditions of the workmen in the newspaper industry,
overruled this contention of the employers, thus:

"That, however would be a consequence which would
be extraneous and not within the contemplation of the
legislature. It could therefore hardly be urged that
the possible effect of the impact of these measures in
conceivable cases would vitiate the legislation as
such. All the consequences which have been visualized
in the behalf by the petitioners, viz., the tendency to
curtail circulation and thereby narrow the scope of
dissemination of information, fetters on the
petitioners' freedom to choose the means of exercising
the right, likelihood of the independence of the press
being undermined by having to seek government aid; the
imposition of penalty on the petitioners' right to
choose the instruments for exercising the freedom or
compelling them to seek alternative media, etc., would
be remote and depend upon various factors which may or
may not come into play. Unless these were the direct or
inevitable consequences of the measures enacted in the
impugned Act, it would not be possible to strike down
the legislation as having that effect and operation."

(emphasis added)
The learned Judge further observed that the impugned Act
could be "legitimately characterised as a measure which
affects the press", but its "intention or the proximate
effect and operation" was not such as would take away or
abridge the right of freedom of speech and
expression guaranteed in
Article 19 (1) (a)
, therefore, it
could not be held invalid on that ground. The impugned
decision of the Wage Board, however, was held to be ultra
vires the Act and contrary to the principles of natural
justice.

It may be observed at this place that the manner in
which the test of direct and indirect effect was applied by
N.H. Bhagwati, J., was not very different from the mode in
which Fazal Ali, J. applied it to punitive detention as
punishment after conviction for an offence under the
Indian
Penal Code
. N.H. Bhagwati, J., did not discard the test
adopted by Kania, C.J., in A.K. Gopalan, in its entirety; he
merely extended the application of the criterion of
directness to the operation and effect of the impugned
legislation.

Again, in
Sakal Papers (P) Ltd. & Ors. v. The Union of
India
(1) this Court, while considering the constitutional
validity of the
Newspaper (Price and Page) Act, 1956
and
Daily Newspaper (Price and Page) Order, 1960, held that the
"direct and immediate" effect of the impugned Order would be
to restrain a newspaper from publishing any number of pages
for carrying its news and views, which it has a fundamental
right under
Article 19 (1) (a)
and, therefore, the Order was
violative of the right of the newspapers guaranteed by

Article 19 (1) (a)
, and as such, invalid. In this case,
also, the emphasis had shifted from the object and subject-
matter of the impugned State action to its direct and
immediate effect.

In
Naresh Shridhar Mirajkar & Ors. v. State of
Maharashtra & Anr.
,(2) an order prohibiting the publication
of the evidence of a witness in a defamation case, passed by
a learned Judge (Tarkunde, J.) of the Bombay High Court, was
impugned on the ground that it violated the petitioners'
right to free speech and expression guaranteed by
Article 19
(1) (a).
Gajendragadkar, C.J., (Wanchoo, Mudholkar, Sikri
and Ramaswami, JJ., concurring) repelled this contention
with these illuminating observations:

"The argument that the impugned order affects the
fundamental rights of the petitioners under
Article 19
(1)
, is based on a complete misconception about the
true nature and
(1) [1962] 3 SCR 842.

(2) [1966] 3 SCR 744.
character of judicial process and of judicial
decisions. When a Judge deals with matters brought
before him for his adjudication, he first decides
questions of fact on which the parties are at issue,
and then applies the relevant law to the said facts.
Whether the findings of fact recorded by the Judge are
right or wrong, and whether the conclusion of law drawn
by him suffers from any infirmity, can be considered
and decided if the party aggrieved by the decision of
the Judge takes the matter up before the appellate
Court. But it is singularly inappropriate to assume
that a judicial decision pronounced by a Judge of
competent jurisdiction in or in relation to matter
brought before him for adjudication can affect the
fundamental rights of the citizens under
Article 19
(1).
What the judicial decision purports to do is to
decide the controversy between the parties brought
before the court and nothing more. If this basic and
essential aspect of the judicial process is borne in
mind, it would be plain that the judicial verdict
pronounced by court in or in relation to a matter
brought before it for its decision cannot be said to
affect the fundamental rights of citizens under
Article
19 (1)."

"It is well-settled that in examining the validity of
legislation, it is legitimate to consider whether the
impugned legislation is a legislation directly in respect of
the subject covered by any particular article of the
Constitution, or touches the said article only incidentally
or indirectly'.'
"If the test of direct effect and object which is
sometimes described as the pith and substance test, is thus
applied in considering the validity of legislation, it would
not be inappropriate to apply the same test to judicial
decisions like the one with which we are concerned in the
present proceedings. As we have already indicated, the
impugned order was directly concerned with giving such
protection to the witness as was thought to be necessary in
order to obtain true evidence in the case with a view to do
justice between the parties. If, incidentally, as a result
of this-order, the petitioners were not able to report what
they heard in court, that cannot be said to make the
impugned order invalid under
Article 19 (1) (a)."
We have already mentioned briefly how the test of
directness was developed and reached its culmination in Bank
Nationalization's case and
Maneka Gandhi
's case.

From the above conspectus, it is clear that the test of
direct and indirect effect was not scrapped. Indeed, there
is no dispute that the test of 'pith and substance' of the
subject-matter and of direct and of incidental effect of
legislation is a very useful test to determine the question
of legislative competence i.e., in ascertaining whether an
Act falls under one Entry while incidentally encroaching
upon another Entry. Even for determining the validity of a
legislation on the ground of infringement of fundamental
rights, the subject-matter and the object of the legislation
are not altogether irrelevant. For instance, if the subject-
matter of the legilation directly covers any of the
fundamental freedoms mentioned in
Article 19 (1)
, it must
pass the test of reasonableness under the relevant head in
clauses (2) to (6) of that Article. If the legislation does
not directly deal with any of the rights in
Article 19 (1)
,
that may not conclude the enquiry. It will have to be
ascertained further whether by its direct and immediate
operation, the impugned legislation abridges any of the
rights enumerated in
Article 19 (1).

In Bennett Coleman,(1) Mathew, J. in his dissenting
judgment referred with approval to the test as expounded in
Express Newspapers. He further observed that "the 'pith and
substance' test, though not strictly appropriate, must serve
a useful purpose in the process of deciding whether the
provisions in question which work some interference with the
freedom of speech, are essentially regulatory in character".
From a survey of the cases noticed above, a
comprehensive test which can be formulated, may be re-
stated as under:

Does the impugned law, in its pith and substance,
whatever may be its form and object, deal with any of
the fundamental rights conferred by
Article 19 (1)?
If
it does, does it abridge or abrogate any of those
rights? And even if it does not, in its pith and
substance, deal with any of the fundamental rights
conferred by
Article 19(1)
, is the
Direct and inevitable effect of the impugned law such
as to abridge or abrogate any of those rights?
The mere fact that the impugned law incidentally, remotely
or collaterally has the effect of abridging or abrogating
those rights, will not satisfy the test. If the answer to
the above queries be in the affirmative, the impugned law in
order to be valid, must pass the test of reasonableness
under
Article 19.
But if the impact of the law on any of the
rights under clause (1) of
Article 19
is merely incidental,
indirect, remote or collateral and is dependent upon factors
which may or may not come into play, the anvil of
Article 19

will not be avilable for judging its validity.

Now, let us apply this test to the provisions of the
Penal Code in question. Section 299 defines 'culpable
homicide' and Section 300 defines culpable homicide
amounting to murder. Section 302 prescribes death or
imprisonment for life as penalty for murder. It cannot,
reasonably or rationally, be contended that any of the
rights mentioned in
Article 19(1)
of the Constitution
confers the freedom to commit murder or, for the matter of
that, the freedom to commit any offence whatsoever.
Therefore, penal laws, that is to say, laws which define
offences and prescribe punishment for the commission of
offences do not attract the application of
Article 19(1).
We
cannot, of course, say that the object of penal laws is
generally such as not to involve any violation of the rights
conferred by
Article 19(1)
because after the decision of
this Court in the Bank Nationalization case the theory, that
the object and form of the State action alone determine the
extent of protection that may be claimed by an individual
and that the effect of the State action on the fundamental
right of the individual is irrelevant, stands discredited.
But the point of the matter is that, in pith and substance,
penal laws do not deal with the subject matter of rights
enshrined in
Article 19(1).
That again is not enough for the
purpose of deciding upon the applicability of
Article 19

because as the test formulated by us above shows, even if a
law does not, in its pith and substance, deal with any of
the fundamental rights conferred by
Article 19(1)
, if the
direct and inevitable effect of the law is such as to
abridge or abrogate any of those rights,
Article 19(1)
shall
have been attracted. It would then become necessary to test
the validity of even a penal law on the touchstone of that
Article. On this latter aspect of the matter, we are of the
opinion that the deprivation of freedom consequent upon an
order of conviction and sentence is not a direct
and inevitable consequence of the penal law but is merely
incidental to the order of conviction and sentence which may
or may not come into play, that is to say, which may or may
not be passed. Considering therefore the test formulated by
us in its dual aspect, we are of the opinion that Section
302 of the Penal Code does not have to stand the test of

Article 19(1)
of the Constitution.

This is particularly true of crimes, inherently vicious
and pernicious, which under the English Common Law were
classified as crimes mala in se as distinguished from crimes
mala prohibita crimes mala in se embrace acts immoral or
wrong in themselves, such as, murder, rape, arson, burglary,
larceny (robbery and dacoity); while crimes mala prohibita
embrace things prohibited by statute as infringing on
others' rights, though no moral turpitude attaches to such
crimes. Such acts constitute crimes only because they are so
prohibited. (See Words and Phrases, Permanent Edition, Vol.

10). While crimes mala in se do not per se, or in operation
directly and inevitably impinge on the rights under
Article
19(1)
, cases under the other category of crimes are
conceivable where the law relating to them directly
restricts or abridges such rights. The illustration given by
Shri Sorabji will make the point clear. Suppose, a law is
enacted which provides that it shall be an offence to level
any criticism, whatever, of the Government established by
law and makes a further provision prescribing five years'
imprisonment as punishment for such an offence. Such a law
(i.e. its provision defining the offence) will directly and
inevitably impinge upon the right guaranteed under clause

(a) of
Article 19(1).
Therefore, to be valid, it must pass
the test of reasonableness embodied in clause (2) of the
Article. But this cannot be said in regard to the provisions
of the Penal Code with which we are concerned.

Assuming arguendo, that the provisions of the Penal
Code, particularly those providing death penalty as an
alternative punishment for murder, have to satisfy the
requirements of reasonableness and public interest under

Article 19
the golden strand of which according to the
ratios of Maneka Gandhi runs through the basic structure of

Article 21
also the further questions to be determined, in
this connection, will be: On whom will the onus of
satisfying the requirements under
Article 19
, lie ? Will
such onus lie on the State or the person challenging its
validity ? And what will be the nature of the onus?
With regard to onus, no hard and fast rule of universal
application in all situations, can be deducted from the
decided cases.
In some decisions, such as,
Saghir Ahmad v.
State of Uttar Pradesh
(
1) and Khyerbari Tea Co. v. State of
Assam & Ors.
(2) it was
laid down by
this Court that if the
writ petitioner succeeds in showing that the impugned law ex
facie abridges or transgresses the rights coming under any
of the sub-clauses of clause (1) of
Article 19
, the onus
shifts on the respondent state to show that the legislation
comes within the permissible limits imposed by any of the
clauses (2) to (6) as may be applicable to the case, and,
also to place material before the court in support of that
contention. If the State does nothing in that respect, it is
not for the petitioner to prove negatively that it is not
covered by any of the permissive clauses.

A contrary trend, however, is discernible in the recent
decisions of this Court, which start with the initial
presumption in favour of the constitutionality of the
statute and throw the burden of rebutting that presumption
on the party who challenges its constitutionality on the
ground of
Art. 19.

In
B. Banerjee v. Anita Pan
(3) this Court, speaking
through V.R. Krishna Iyer, J., reiterated the ratio of
Ram
Krishna Dalmia
's case,(4) that :

"there is always a presumption in favour of the
constitutionality of an enactment and the burden is
upon him who attack it to show that there has been a
clear transgression of the constitutional principles";
and
"that it must be presumed that the legislature
understands and correctly appreciates the need of its
own people, that its laws are directed to problems made
manifest by experience and that its discriminations are
based on adequate grounds."

It was emphasised that "Judges act not by hunch but on hard
facts properly brought on record and sufficiently strong to
rebuff the
initial presumption of constitutionality of legislation. Nor
is the Court a third Chamber of the House to weigh whether
it should draft the clause differently". Referring, inter
alia, to the decision of this Court in R.M.D. Chamarbaugwala
(ibid), and Seervai's 'Constitutional Law of India', Vol. I,
page 54, it was recalled, "Some courts have gone to the
extent of holding that there is a presumption in favour of
constitutionality, and a law will not be declared
unconstitutional unless the case is so clear as to be free
from doubt; and to doubt the constitutionality of a law is
to resolve it in favour of its validity". Similar view was
taken by a Bench of seven learned Judges of this Court in

Pathumma v. State of Kerala
.(1)
Behind the view that there is a presumption of
constitutionality of a statute and the onus to rebut the
same lies on those who challenge the legislation, is the
rationale of judicial restraint, a recognition of the limits
of judicial review; a respect for the boundaries of
legislative and judicial functions, and the judicial
responsibility to guard the trespass from one side or the
other. The primary function of the courts is to interpret
and apply the laws according to the will of those who made
them and not to transgress into the legislative domain of
policy-making. "The job of a Judge is judging and not law-
making". In Lord Devlin's words : "Judges are the keepers of
the law and the keepers of these boundaries cannot, also, be
among out-riders."

A similar warning was echoed by the Supreme Court of
the United States in Dennis v. United States(2) in these
terms :

"Courts are not representative bodies. They are
not designed to be a good reflex of a democratic
society. Their judgment is best informed, and therefore
most dependable, within narrow limits. Their essential
quality is detachment, founded on independence. History
teaches that the independence of the judiciary is
jeopardized when courts become embroiled in the
passions of the day and assume primary responsibility
in choosing between competing political, economic and
social pressures."
In Gregg v. Georgia,(1) one of the principal questions
for consideration was, whether capital punishment provided
in a statute for certain crimes was a "cruel and unusual"

punishment. In that context, the nature of the burden which
rests on those who attack the constitutionality of the
statute was explained by Stewart, J., thus :

"We may not require the legislature to select the
least severe penalty possible so long as the penalty
selected is not cruelly inhumane or disproportionate to
the crime involved. And a heavy burden rests on those
who would attack the judgment of the representatives of
the people. This is true in part because the
constitutional test is intertwined with an assessment
of contemporary standards and the legislative judgment
weighs heavily in ascertaining such standards. In a
democratic society legislatures, not courts, are
constituted to respond to the will and conse quently
the moral values of the people."

Even where the burden is on the State to show that the
restriction imposed by the impugned statute is reasonable
and in public interest, the extent and the manner of
discharge of the burden necessarily depends on the subject-
matter of the legislation, the nature of the inquiry, and
the scope and limits of judicial review. (See the
observations of Sastri. J. in
State of Madras v. V.C.
Rao
,(2) reiterated in Jagmohan).

In the instant case, the State has discharged its
burden primarily by producing for the persual of the Court,
the 35th Report of the Law Commission, 1967, and the
judgments of this Court in Jagmohan Singh and in several
subsequent cases, in which it has been recognised that death
penalty serves as a deterrent. It is, therefore, for the
petitioners to prove and establish that the death sentence
for murder is so outmoded, unusual or excessive as to be
devoid of any rational nexus with the purpose and object of
the legislation.

The Law Commission of India, after making an intensive
and extensive study of the subject of death penalty in
India, published
and submitted its 35th Report in 1967 to the Government.
After examining, a wealth of evidential material and
considering the arguments for and against its retention,
that high-powered Body summed up its conclusions at page 354
of its Report, as follows :

"The issue of abolition or retention has to be
decided on a balancing of the various arguments for and
against retention. No single argument for abolition or
retention can decide the issue. In arriving at any
conclusion on the subject, the need for protecting
society in general and individual human beings must be
borne in mind.

It is difficult to rule out the validity of, of
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 up-bringing of its
inhabitants, to the disparity in the level of morality
and education in the country, to the vastness of its
area, to diversity of its population and to the
paramount need for maintaining law and order in the
country at the present juncture, India cannot risk the
experiment of abolition of capital punishment."

This Report was also, considered by the Constitution
Bench of this Court in Jagmohan. It was the main piece of
evidence on the basis of which the challenge to the
constitutional validity of Section 302 of the Penal Code, on
the ground of its being violative of
Article 19
, was
repelled. Parliament must be presumed to have considered
these views of the Law Commission and the judgment of this
Court in Jagmohan, and must also have been aware of the
principles crystallised by judicial precedents in the matter
of sentencing when it took up revision of the
Code of
Criminal Procedure
in 1973, and inserted in it, Section
354(3) which indicates that death penalty can be awarded in
exceptional cases for murder and for some other offences
under the Penal Code for special reasons to be recorded.

Death penalty has been the subject of an age-old debate
between Abolitionists and Retentionists, although recently
the
controversy has come in sharp focus. Both the groups are
deeply anchored in their antagonistic views. Both firmly and
sincerly believe in the rightcousness of their respective
stands, with overtones of sentiment and emotion. Both the
camps can claim among them eminent thinkers, penologists,
sociologists, jurists; judges, legislators, administrators
and law enforcement officials.

The chief arguments of the Abolitionists, which have
been substantially adopted by the learned counsel for the
petitioners, are as under :

(a) The death penalty is irreversible. Decided upon
according to fallible processes of law by fallible
human beings, it can be-and actually has been-
inflicted upon people innocent of any crime.

(b) There is no convincing evidence to show that death
penalty serves any penological purpose :

(i) Its deterrent effect remains unproven. It has not
been shown that incidence of murder has increased
in countries where death penalty has been
abolished, after its abolition.

(ii) Retribution in the sense of vengeance, is no
longer an acceptable end of punishment.

(iii)On the contrary, reformation of the criminal and
his rehabilitation is the primary purpose of
punishment. Imposition of death penalty nullifies
that purpose.

(c) Execution by whatever means and for whatever
offence is a cruel, inhuman and degrading
punishment.

It is proposed to deal with these arguments, as far as
possible, in their serial order.

Regarding (a) : It is true that death penalty is irrevocable
and a few instances, can be cited, including some from
England, of persons who after their conviction and execution
for murder, were discovered to be innocent. But this,
according to the Retentionists is not a reason for abolition
of the death penalty, but an argument for reform of the
judicial system and the sentencing procedure. Theore-
tically, such errors of judgment cannot be absolutely
eliminated from any system of justice, devised and worked by
human beings, but their incidence can be infinitesimally
reduced by providing adequate safeguards and checks. We will
presently see, while dealing with the procedural aspect of
the problem, that in India, ample safeguards have been
provided by law and the Constitution which almost eliminate
the chances of an innocent person being convicted and
executed for a capital offence.

Regarding (b): Whether death penalty serves any penological
purpose.

Firstly, in most of the countries in the world,
including India, a very large segment of the population,
including notable penologists judges, jurists, legislators
and other enlightened people still believe that death
penalty for murder and certain other capital offences does
serve as a deterrent, and a greater deterrent than life
imprisonment. We will set out very briefly, by way of
sample, opinions of some of these distinguished persons.

In the first place, we will notice a few decisions of
Courts wherein the deterrent value of death penalty has been
judicially recognised.

In Paras Ram v. State of Punjab,(1) the facts were that
Paras Ram, who was a fanatic devotee of the Devi, used to
hold Satsangs at which bhajans were sung in praise of the
Goddess. Paras Ram ceremonially beheaded his four year old
boy at the crescendo of the morning bhajan. He was tried,
convicted and sentenced to death for the murder. His death
sentence was confirmed by the High Court. He filed a
petition for grant of special leave to appeal to this Court
under
Article 136
of the Constitution. It was contended on
behalf of Paras Ram that the very monstrosity of the crime
provided proof of his insanity sufficient to exculpate the
offender under
Section 84
, Indian Penal Code, or material
for mitigation of the sentence of death. V. R. Krishna Iyer,
J., speaking for the Bench, to which one of us (Sarkaria,
J.) was a party, refused to grant special leave and
summarily dismissed the petition with these observations :
"The poignantly pathological grip of macabre
superstitions on some crude Indian minds in the shape
of desire to do human and animal sacrifice, in defiance
of the scientific ethos of our cultural heritage and
the scientific impact of our technological century,
shows up in crimes of primitive horror such as the one
we are dealing with now, where a blood-curdling
butehery of one's own beloved son was perpetrated,
aided by other 'pious' criminals, to propitiate some
blood-thirsty diety. Secular India, speaking through
the Court, must administer shock therepy to such anti-
social 'piety' when the manifestation is in terms of
inhuman and criminal violence. When the disease is
social, deterrence through court sentence must,
perforce, operate through the individual culprit coming
up before court. Social justice has many facets and
Judges have a sensitive, secular and civilising role in
suppressing grievous injustice to humanist values by
inflicting condign punishment on dangerous deviants."

(emphasis added)
In Jagmohan, also, this Court took due note of the fact
that for certain types of murders, death penalty alone is
considered an adequate deterrent:

"A large number of murders is undoubtedly of the
common type. But some at least are diabolical in
conception and cruel in execution. In some others where
the victim is a person of high standing in the country
society is liable to be rocked to its very foundation.
Such murders cannot simply be wished away by finding
alibis in the social maladjustment of the murderer.
Prevalence of such crimes speaks, in the opinion of
many, for the inevitability of death penalty not only
by way of deterrence but as a token of emphatic
disapproval of the society."

Examining whether life imprisonment was an adequate
substitute for death penalty, the Court observed:

"In the context of our criminal law which punishes
murder, one cannot ignore the fact that life
imprisonment works out in most cases to a dozen years
of punishment, and it may be seriously questioned
whether that sole alter-
native will be an adequate substitute for the death
penalty."

In
Ediga Anamma v. State of Andhra Pradesh
,(1) V.R.
Krishna Iyer, J., speaking for the Bench to which one of us
(Sarkaria, J.,) was a party, observed that "deterrence
through threat of death may still be a promising strategy in
some frightful areas of murderous crime." It was further
observed that "horrendous features of the crime and the
hapless and helpness state of the victim steel the heart of
law for the sterner sentence."

In
Shiv Mohan Singh v. State (Delhi Administration
),(2)
the same learned Judge, speaking for the Court, reiterated
the deterrent effect of death penalty by referring to his
earlier judgment in
Ediga Annamma
's case, as follows:

"In Ediga Annamma this Court, while noticing the
social and personel circumstances possessing an
extenuating impact, has equally clearly highlighted
that in India under present conditions deterrence
through death penalty may not be a time-barred
punishment in some frightful areas of barbarous
murder."

Again, in
Charles Sobraj v. The Superintendent, Central
Jail, Tihar, New Delhi
,(3) the same learned Judge, speaking
for a Bench of three learned Judges of this Court,
reiterated that deterrence was one of the vital
considerations of punishment.

In Trop v. Dulleh,(4) Brennan, J. of the supreme Court
of the United States, concurring with the majority,
emphasised the deterrent end of punishment, in these words:

"Rehabilitation is but one of the several purposes
of the penal law. Among other purposes are deterrents
of the wrongful act by the threat of punishment and
insulation of society from dangerous individuals by
imprisonment or execution."
In Furman v. Georgia, Stewart, J. took the view that
death penalty serves a deterrent as well as retributive
purpose. In his view, certain criminal conduct is so
atrocious that society's interest in deterrence and
retribution wholly outweighs any considerations of reform or
rehablitation of the perpetrator, and that, despite the
inconclusive empirical evidence, only penalty of death will
provide maximum deterrence.

Speaking for the majority, in Gregg v. Georgia,
Stewart, J. reiterated his views with regard to the
deterrent and retributive effect of death penalty.

Now, we may notice by way of specimen, the views of
some jurists and scholars of note. Sir James Fitzjames
Stephen, the great jurist, who was concerned with the
drafting of the
Indian Penal Code
, also, was a strong
exponent of the view that capital punishment has the
greatest value as a deterrent for murder and other capital
offence. To quote his words:

"No other punishment deters men 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 the way. Was there ever yet a
criminal who, when sentenced to death and brought out
to die, would refuse to 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."

Even Marchese De Cesare Bonesana Beccaria, who can be
called the father of the modern Abolitionist movement,
concedes in his treatise, "Dei Delitti a della Pana" (1764),
that capital punishment would be justified in two instances:

Firstly, in an execution
would prevent a revolution against popularly established
Government; and, secondly, if an execution was the only way
to deter others from committing a crime. The adoption of
double standards for capital punishment in the realm of
conscience is considered by some scholars as the biggest
infirmity in the Abolitionists' case.

Thorsten Sallin is one of the penologists who has made
a scientific study of the subject of capital punishment and
complied the views of various scholars of the 19th and 20th
centuries. In his book "Capital Punishment", he has made an
attempt to assemble the arguments for and against the death
penalty. He has also given extracts from the Debates in the
British House of Commons in 1956 and, also, in March and
April 1966, in the Candian House of Commons. In the last
part of his book, the learned Editor summarises his ideas
about capital punishment. In his opinion, Retribution seems
to be outdated and unworkable. It is neither efficient nor
equitably administered. "Justice is a relative concept that
changes with the times". A retributive philosophy alone is
not now socially acceptable. "In the last analysis, the only
utilitarian argument that has being to be given attention is
the one that defends capital punishment as a uniquely
powerful means of protecting the community." He ends his
book with the observation : "I have attempted to show that,
as now used, capital punishment performs none of the
utilitarian functions claimed by its supporters, nor can it
ever be made to serve such functions. It is an archaic
custom of primitive origin that has disappeared in most
civilized countries and is withering away in the rest."

In his article appearing in "Criminology Review Year
Book" (1979) Vol. 1, complied by Sheldon L. Messinger & Egon
Bittner(1), Isaac Ehrlich, after surveying the past
literature on the relation between capital punishment and
capital crimes, has (at pp. 31-33) pointed out the following
shortcomings in the thesis of Sellin :

"The principal shortcoming of the work by Sellin
and others using his methodology is that the approach
taken and the methods applied do not permit a
systematic examination of the main implications
emanating from the general theory of deterrence. The
shortcoming is basic, because the implications
following from the general deterrence
hypothesis are what Sellin was challenging. Yet his
work neither develops nor tests the full range of
implications following from the theory he attempts to
reject; nor does he develop or test a competing theory.
In addition, to my knowledge, Sellin never reported in
any of his studies the results of any systematic
(parametric or non-parametric) statistical tests that
could justify his strong and unqualified inferences."

... ... ...

"Another fundamental shortcoming of Sellin's
studies is their failure to account systematically for
other factors that are expected by the deterrence
hypothesis to affect the frequency of murder in the
population, apart from the relevant risk of execution.
These are variables such as the probability of
apprehension, the conditional probability of conviction
given apprehension, the severity of alternative
punishments for murder, the distribution of income, the
probability of unemployment, and other indicators of
differential gains from criminal activities occurring
jointly with murder. Since, as I shall argue later,
some of these variables are expected to be highly
correlated with the conditional probability of
execution given conviction of murder, their exclusion
from the statistical analysis can seriously bias
estimates of the partial deterrent effect of capital
punishment. Aware of the problem, Sellin attempted to
compare states that are as alike as possible in all
other respects. However, his "matching procedure",
based on the assumption that neighbouring states can
satisfy such pre-requisites without any explicit
standardization, is simply insufficient for any valid
inferences. Pairs of states, such as New York, and
Rhode Island, Massachusetts and Maine, or Illinois and
Wisconsin all included in his comparisons, differ in
their economic and demographic characteristics, in
their law enforcement activities, and in the
opportunities they provide for the commission of other
crimes. Moreover, the direction of the causal
relationship between the murder rate and the overall
risk of punishment-be it the death penalty or any other
sanction - is not self-evident because, for example,
states with high murder rates are expected to and, in
fact do devote more
resources to apprehend, convict and execute offenders
than do states with lower rates. Specifically,
variations in the legal or practical status of the
death penalty occasionally may be the result of, rather
than the cause for, changes in the murder rate, and
thus may give rise to an apparent positive association
between these two variables. The same general point
applies in connection with the identification of the
effect of any other variable which is a product of law
enforcement activity or private protection against
crime. For these reasons, the true deterrent effect of
a sanction such as the death penalty cannot be readily
inferred from simple comparisons of the sort performed
by Sellin."

The learned author then (at page 33) arrives at this
conclusion :

"If investigations indicate that probability and
length of imprisonment do impart significant deterrent
effects, then failure of the research to demonstrate
specifically the deterrent efficacy of capital
punishment may be taken more as evidence for
shortcomings in the research design and methodology or
in the measures of the theoretically relevant variables
used than as a reflection on the validity of the
deterrence theory itself."

The scholar then stresses another purpose of capital
punishment, namely, incapacitation of the offender, which,
in fact, is another aspect of its deterrent effect. To quote
his words :

"There is an additional point worth stressing.
Even if punishment by execution or imprisonment does
not have any deterrent effect, surely it must exert
some incapacitative effect on punished offenders by
reducing or eliminating the possibility of recidivism
on their part."

This eminent social scientist, Prof. Ehrlich(1) whose
views we have extracted, has made intensive studies of the
deterrent effect of capital punishment. Then, a result of
his study was also published
in the American Economic Review in June, 1975. He includes a
specific test for the presence of a deterrent effect of
capital punishment to the results of earlier studies. He has
in his study(1) claimed to identify a significant reduction
in the murder rate due to the use of capital punishment. A
version of his detailed study is said to have been filed
with the United States Supreme Court on March 7, 1975 in the
case of Fowler v. North Carolina.(2)
In 1975, Robert Martinson, a sociologist, published the
results of a study he had made in New York regarding the
rehabilitation of of prisoners. Among the conclusions he
drew: "The prison which makes every effort at rehabilitation
succeeds no better than the prison which leaves its inmates
to rot....The certainty of punishment rather than the
severity, is the most effective crime deterrent. We should
make plain that prisons exist to punish people for crimes
committed."

(Quoted in Encyclopaedia Britannica 1978 Book of the
Year, pp. 593-594)
Many judges-especially in Britain and the United
States, where rising crime rates are the source of much
public concern-have expressed grave doubts about the wisdom
of the view that reform ought to take priority in dealing
with offenders. "They have argued that the courts must
reflect a public abhorrence of crime and that justice
demands that some attempt be made to impose punishment
fitting to the crime."

(Encyclopaedia Britannica, ibid.)
Professor Jean Graven, Judge of the Court of Appeal of
Geneva, and a distinguished jurist, maintains in his learned
analysis, (see the Postscript in reply to A World View of
Capital Punishment by James Avery Joyce), of the views of
Camus and Koestler, that neither of these two authors has
faced up to the really basic objection to the abolitionist's
case. According to Graven, there are two groups of people,
which are not covered by the abolitionist's case and Camus
and Koestler have therefore left their cause open to attack
at its
_______________________
(1) See Lee S. Friedman's article at pages 61-87, Review
Year Book, 1979, compiled by Messinger and Bittner.
(2) 428 US 904=49 L. Ed. 1212 (1976).
weakest point. "The true problem", as Graven sees it, "is
the protection of the organized, civilized community", the
legitimate defence of society against criminal attacks made
upon it by those anti-social elements which can be stopped
only by being eliminated, in the "last resort". "For such,
the death penalty should be preserved, and only for such".

Professors Graven's second challenge is, which the
abolitionist must accept, the existing division between
civil and military protection. According to him, in doing
so, the abolitionist cannot avoid applying double standard
and two mutually destructive criteria to their approach to
the death penalty. "For if the death penalty is accepted as
protective in principle to society, then it should be so in
all cases and in all circumstances in troubled times as well
as in peaceful times, in respect of the traitor, the spy,
the deserter, or the hostage, as well as of the brigand, the
"gangster", or the professional killer. We must be logical
and just at the same time. In the realm of conscience and of
'principles', there cannot be two weights and measures.
There cannot be a morality for difficult times and another
morality for easy times; one standard for military justice
and another for civil justice. What then should be done with
those individuals who have always been considered proper
subjects for elimination? If the capital sentence is
objectionable and illegal...If the death penalty must be
absolutely repudiated because it 'degrades man, (quoting
Camus) then we accept the position. But, in that case, no
right to kill exists any longer...the greatest war
criminals, those responsible conscious of what they have
done and intended to do-for the worst crimes of genocide,
who gassed, incinerated in ovens or buried in quicklime a
million innocent victims, or allowed them to perish in mines
and marshes...Society has not the right then to kill even
these "Monsters".

(Quoted in A World View of Capital Punishment, by James
Avery Joyce).

J.J. Maclean, a Parliamentarian, articulated his views
with regard to the deterrent, value of capital punishment in
the Canadian House of Commons in the March-April, Debates
1966, as follows:

"Whether it (capital punishment) is a greater or
lesser deterrent than life imprisonment. This is an
argument that cannot be proven on either side but I
would not like to
have to try to convince any one that capital punishment
is not a deterrent. Statistically this cannot be proven
because the deterrent effect on both capital punishment
and life imprisonment is obscured by the fact that most
criminals plan a crime on the basis that they are going
to avoid any penalty...I say, the deterrent value is
with respect to people who did not commit crimes, who
were deterred from becoming murderers by the fact that
capital punishment or some other heavy penalty would be
meted outto them if caught."

(Quoted in Sellin's Capital Punishment).

The Law Commission of India in its 35th Report, after
carefully sifting all the materials collected by them,
recorded their views regarding the deterrent effect of
capital punishment as follows:

"In our view capital punishment does act as a
deterrent. We have already discussed in detail several
aspects of this topic. We state below, very briefly,
the main points that have weighed with us in arriving
at this conclusion:

(a) Basically, every human being dreads death.

(b) Death, as a penalty, stands on a totally different
level from imprisonment for life or any otber
punishment. The difference is one of quality, and
not merely of degree.

(c) Those who are specifically qualified to express an
opinion on the subject, including particularly the
majority of the replies received from State
Governments, Judges, Members of Parliament and
Legislatures and Members of the Bar and police
officers-are definitely of the view that the
deterrent object of capital punishment is achieved
in a fair measure in India.

(d) As to conduct of prisoners released from jail
(after undergoing imprisonment for life), it would
be difficult to come to a conclusion, without
studies extending over a long period of years.
(e) Whether any other punishment can possess all the
advantages of capital punishment is a matter of
doubt.

(f) Statisties of other countries are inconclusive on
the subject. If they are not regarded as proving
the deterrent effect; neither can they be regarded
as conclusively disproving it."

Views of the British Royal Commission:

The British Royal Commission, after making an
exhaustive study of the issue of capital punishment and its
deterrent value, in their Report (1949-53), concluded:

"The general conclusion which we reach, after
careful review of all the evidence we have been able to
obtain as to the deterrent effect of capital
punishment, may be stated as follows. Prima facie the
penalty of death is likely to have a stronger effect as
a deterrent to normal human beings than any other form
of punishment, and there is some evidence (though no
convincing statistical evidence) that this is in fact
so. But this effect does not operate universally or
uniformly, and there are many offenders on whom it is
limited and may often be negligible."

We may add that whether or not death penalty in actual
practice acts as a deterrent, cannot be statistically
proved, either way, because statistics as to how many
potentisim murderers were deterred from committing murders,
but for the existence of capital punishment for murder, are
difficult, if not altogether impossible, to collect. Such
statistics of deterred potential murderers are difficult to
unravel as they remain hidden in the innermost recesses of
their mind.

Retribution in the sense of reprobation whether a
totally rejected concept of punishment.

Even retribution in the sense of society's reprobation
for the worst of crimes, i.e., murder, is not an altogether
outmoded concept. This view is held by many distinguished
sociologist, jurists and judges.

Lord Justice Denning, Master of the Rolls of the
Court of
Appeal in England, appearing before the British Royal
Commission on Capital Punishment, stated his views on this
point as under:

"Punishment is the way in which society expresses
its denunciation of wrong-doing, and, in order to
maintain respect for law, it is essential that the
punishment inflicted for grave crimes should adequately
reflect the revulsion felt by the great majority of
citizens for them. It is a mistake to consider the
objects of punishment as being deterrent or reformative
or preventive and nothing else...The truth is that some
crimes are so outrageous that society insists on
adequate punishment, because the wrong-doer deserves
it, irrespective of whether it is a deterrent or not."

That retribution is still socially acceptable function of
punishment, was also the view expressed by Stewart, J., in
Furman v. Georgia, at page 389, as follows:

"...I would say only that I cannot agree that
retribution is a constitutionally impermissible
ingredient in the imposition of punishment. The
instinct for retribution is part of the nature of man,
and channeling that instant, in the administration of
criminal justice serves an important purpose in
promoting the stability of a society governed by law.
When people begin to believe that organized society is
unwilling or unable to impose upon criminal offenders
the punishment they 'deserve', then there are sown the
seeds of anarchy of self help, vigilant justice, and
lynch law."

Patrick Devlin, the eminent jurist and judge, in his
book, "The Judge", emphasises the retributive aspect of the
purpose of punishment and criminal justice, thus:

"I affirm that justice means retribution and
nothing else. Vindictiveness is the emotional outflow
of retribution and justice has no concern with that.
But it is concerned with the measurement of deserts.
The point was put lucidly and simply by the Vicar of
Longton in a letter to The Times, from which with his
permission I quote: Firstly, far from pretending that
retribution should have no place in our penal system,
Mr. Levin should recognize that it is
logically impossible to remove it. If it were removed,
all punishments should be rendered unjust. What could
be more immoral than to inflict imprisonment on a
criminal for the sake of deterring others, if he does
not deserve it? Or would it be justified to subject him
to a compulsory attempt to reform which includes a
denial of liberty unless, again he deserves it?.
Retribution and deterrence are not two divergent ends
of capital punishment. They are convergent goals which
ultimately merge into one. How these ends of punishment
coalesce into one was described by the Law Commission of
India, thus:

"The retributive object of capital punishment has
been the subject-matter of sharp attack at the hands of
the abolitionists. We appreciate that many persons
would regard the instinct of revenge as barbarous. How
far it should form part of the penal philosophy in
modern times will always remain a matter of
controversy. No useful purpose will be served by a
discussion as to whether the instinct of retribution is
or is not commendable. The fact remains, however, that
whenever there is a serious crime, the society feels a
sense of disapprobation. If there is any element of
retribution in the law, as administered now, it is not
the instinct of the man of jungle but rather a refined
evolution of that instinct the feeling prevails in the
public is a fact of which notice is to be taken. The
law does not encourage it, or exploit it for any
undesirable ends. Rather, by reserving the death
penalty for murder, and thus visiting this gravest
crime with the gravest punishment, the law helps the
element of retribution merge into the element of
deterrence."

[Para 265 (18), 35th Report]
Earlier in 1949-1953, the British Royal Commission in
Para 59 of its Report spoke in a somewhat similar strain:

"We think it is reasonable to suppose that the
deterrent force of capital punishment operates not only
by affecting the conscious thoughts of individuals
tempted to commit murder, but also by building up in
the community, over a
long period of time, a deep feeling of peculiar
abhorrence for the crime of murder. The fact that men
are hung for murder is one great reason why murder is
considered so dreadful a crime. This widely diffused
effect on the moral consciousness of society is
impossible to assess, but it must be at least as
important as any direct part which the death penalty
may play as a deterrent in the calculations of
potential murderers."

According to Dr. Ernest Van Den Haag, a New York
psychologist and author, and a leading proponent of death
penalty, "a very strong symbolic value" attaches to
executions. "The motives for the death penalty may indeed
include vengeance. Legal vengeance solidifies social
solidarity against law-breakers and probably is the only
alternative to the disruptive private revenge of those who
feel harmed."

(See The Voice (USA) June 4, 1979)
The views of Lloyd George, who was the Prime Minister
of England during the First World War, have been referred to
in the book "Capital Punishment" (1967) by Thorsten Sellin
at page 65, as below:

"The first function of capital punishment is to
give emphatic expression to society's peculiar
abhorrence of murder....It is important that murder
should be regarded with peculiar horror...I believe
that capital punishment does, in the present state of
society, both express and sustain the sense of moral
revulsion for murder."

This view is not without respectable support in the
jurisprudential literature of today, despite an opinion to
the contrary. (See also the Royal Commission's Report, 1949-

53). In relying, inter alia, upon the evidence before it,
including that of Lord Denning, the Royal Commission
recognised a strong and widespread demand for retribution.
It is a common phenomenon in all the civilized countries
that some murders are so shockingly offensive that there is
a general outcry from the public for infliction of the
ultimate penalty on the criminal.

In regard to the retributive aspect of capital
punishment, we may cite one recent illustration showing how
demand for retribu-
tion, in the sense of society's instinctive disapproval of
the outrageous conduct of the murderer is indelibly
ingrained in contemporary public opinion even in advanced
countries.

In November 1978, George Moscone (Mayor) and Harvey
Milk (Supervising Officer) of San Francisco were cruelly,
assassinated by Dan White, a police-man. Six months later,
on May 22, 1979, a jury of seven men and five women rejected
the charge of first-degree murder, and in consequence, did
not award capital punishment to Dan White for this heinous
double murder. Public opinion reacted sharply. Public
protest against this decision spontaneously manifested
itself in a burst of flame and fury. Thousands of outraged
demonstrators rampaged through the Civic Centre, smashing
windows, burning police cars, chanting: "We want justice"

Writing in 'The Voice', a local paper from San Franscisco,
in its issue of June 4, 1979, Lawrence Mullen, fired at the
jury a volley of questions, to which the agitated public
would demand answers:

"What comment did the jury make on the value of
life? Was the tragedy of the execution-style murders
the central issue, or was the jury only concerned with
technicalities, absurdities and loopholes of the law?
Was justice considered not revenge but justice? High
irony, Dan White's strong belief in capital punishment
has found thousands of new converts. From now on, a lot
of people will die because Dan White lives. Are we so
insensitive, callous and inhuman that we accept or
excuse violence and brutality? Consider White's defence
lawyer, Douglas Schmidt's reference to that tragic
Monday in November: "It was a tragedy. Now it's behind
us."

"For those who loved and still miss George Moscone
and Harvey Milk, for those who were cast into darkness
and cried for justice, for those who still seek
answers, the lawyer's words are a chilling reminder
that we must not forget-that we must not 'put it behind
us'."

The former cop, a law and order and capital
punishment advocate driven by his passion, by his lack
of reason, to destroy those who he disagreed with, and
by doing so
demonstrated the greatest human failure-the inability
to co-exist.

"Dan White symbolizes the violence and brutality
that is undermining civilization."

Dan White's case and the spontaneous reaction of the
public opinion that followed, show that opposition to
capital punishment has (to use the words of Raspberry),"(1)
much more appeal when the discussion is merely academic than
when the community is confronted with a crime, or a series
of crimes, so gross, so heinous, so cold-blooded that
anything short of death seems an inadequate response".

The Editor of 'Capital Punishment', Thorsten Sellin has
noted at page 83 of his compilation, the following views of
an outstanding Justice of the Ontario Appeal Court:

"The irrevocable character of the death penalty is
a reason why all possible measures should be taken
against injustice-not for its abolition. Now a days,
with the advent of armed criminals and the substantial
increase in armed robberies, criminals of long standing
if arrested, must expect long sentences. However, if
they run no risk of hanging, when found guilty of
murder, they will kill police men and witnesses with
the prospect of a future no more unhappy, as one of
them put it, than being fed, lodged, and clothed for
the rest of their lives. In addition, once in prison,
such people who are capable of anything could kill
their guards and their fellow inmates with relative
impunity."

J.J. Maclean, the Canadian Parliamentarian justifies,
from another angle, the right of the State to award capital
punishment for murder:

"If the State has the right and the duty to defend
the community against outside aggression, such as in
time of war, and within the country, for instance, in
case of treason
______________
(1) Raspberry, Death Sentence, the Washington Post,
March 12, 1976, p, 27 cols. 5-6.
crimes against the State, etc., and that to the extent
of taking the life of the aggressors and guilty
parties, if the citizen wants to protect his own life
by killing whoever attacks him without any reason, the
State can do the same when a criminal attacks and
endangers the life of the community by deciding to
eliminate summarily another human being. Capital
punishment must be retained to prove the sanctity of
that most precious thing which is the gift of life; it
embodies the revulsion and horror that we feel for the
greatest of crimes...For most people, life is priceless
and they will do anything and suffer the worst
privations to preserve it, even when life itself does
not hold many consolations or bright prospects for the
future. As a deterrent, the death penalty is playing
its part for which there is no substitute...I suggest
that statistics do not prove much, either on one side
or the other.... There are too many variations, too
many changes as regards circumstances, condition
between one period and the other, to enable us to make
worthy comparisons."

(See page 84 of Sellin's Capital Punishment).
Some penologists justify capital penalty and life
imprisonment on the 'isolation' or 'elimination' theory of
crime and punishment. Vernon Rich in his "Law & the
administration of justice" (Second Edition, at page 10),
says:

"The isolation theory of crime and punishment is
that the criminal law is a device for identifying
persons dangerous to society who are then punished by
being isolated from society as a whole, so that they
cannot commit other antisocial acts. The isolation
theory is used to justify the death penalty and long-
term imprisonment. Obviously, this theory is effective
in preventing criminal acts by those executed or
permanently incarcerated."

While the Abolitionists look upon death penalty as
something which is per se immoral and inhuman, the
Retentionists apprehened that if we surrender even the risk
of the last remaining horrifying deterrent by which to
frighten the toughts of the underworld, we may
easily tip the scales in favour of the anti-social hoodlums.
They fear that abolition of capital punishment, will result
in increase of murders motivated by greed, and in affable
"crime passionelle."

"It is feared", wrote George A. Floris,(1) "the most
devastating effects of the abolition will, however, show
themselves in the realm of political murder. An adherent of
political extremism is usually convinced that the victory of
his cause is just round the corner. So, for him long term
imprisonment holds no fear. He is confident that the coming
ascendency of his friends will soon liberate him." To prove
this proposition, Floris cites the instance of Von Paper's
Government who in September 1932, reprieved the death
sentence passed on two of Hitler's storm-troopers for brutal
killing of one of their political opponents. The
Retentionists believe that the dismantling of the gallows
will almost everywhere enhance the hit and run attacks on
political opponents. On this premise, they argue that
capital punishment is the most formidable safeguard against
terrorism.

The argument cannot be rejected out of hand. A number
of instances can be cited where abolitionist States feeling
the inadequacy of their penological armour to combat
politically motivated gangsterism, have retrieved and used
their capital weapon which they had once thrown away.
Despite their traditional abhorrence of death penalty, the
Norwegians executed Major Vedkun Quisling after World War
II. The Belgians, too, executed no less than 242
collaborators' and traitors after the liberation, although
in their country, the death penalty was otiose since 1880.

In England, death penalty was retained for high treason
in the Silverman Bill of 1956. Even at present, for that
offence, death penalty is a valid sanction in England. In
the aftermath of assassination of Prime Minister Bandernaike
in 1959, Ceylon hurriedly reintroduced capital punishment
for murder. Owing to similar considerations, Israel
sanctioned death penalty for crimes committed against the
Jewish people, and executed the notorious Jew-baiter, Adolf
Eichmann in 1962. Recently, on April 9, 1979, confronted
with a wave of violent incidents after the signing of Egypt-
Israel Peace Treaty. Israel sanctioned the use of death
penalty "for acts of inhuman cruelty".

____________
(1) Sunday Tribune, December 8, 1963.
In India, very few scientific studies in regard to
crime and punishment in general, and capital punishment, in
particular, have been made. Counsel for the petitioners
referred us to Chapter VI, captioned 'Capital Punishment, in
the book, 'Quantum of Punishment in Criminal Law in India,
written by Dr. Kripal Singh Chhabra, now on the staff of
G.N. University, Amritsar. In this article, which was
primarily meant as LL. D. thesis, the learned author
concludes:

"On the basis of statistics both of India and
abroad, U.N.O. findings and other weighty arguments, we
can safely conclude that death penalty is not
sustainable on merits. Innately it has no reformative
element. It has been proved that death penalty as
operative carries no deterrent value and crime of
murder is governed by factors other than death penalty.
Accordingly, I feel that the death penalty should be
abolished."

It will be seen, in the first place, that the analysis
by Dr. Chhabra in coming to the conclusion, that death
penalty is of no penological value, is based on stale,
incomplete and inadequate statistics. This is more
particularly true of the data relating to India, which does
not cover the period subsequent to 1961. Secondly, the
approach to the problem adopted by him, like the other
Abolitionists referred to by him, is mainly, if not merely,
statistical.

As already noticed, the proponents of the opposite view
of capital punishment, point out that statistics alone are
not determinative of the question whether or not death
penalty serves any deterent or other penological purpose.
Firstly, statistics of deterred potential murderers are hard
to obtain. Secondly, the approach adopted by the
Abolitionists is oversimplified at the cost of other
relevant but imponderable factors, the appreciation of which
is essential to assess the true penological value of capital
punishment. The number of such factors is infinitude, their
character variable duration transient and abstract
formulation difficult. Conditions change from country to
country and time to time. Due to the inconstancy of social
conditions, it is not scientifically possible to assess with
any degree of accuracy, as to whether the variation in the
incidence of capital crime is attributable to the presence
or absence of death penalty in the penal law of that country
for such crimes.
That is why statistical attempts to assess the true
penological value of capital punishment, remain
inconclusive.

Pursued beyond a certain point, both the Abolitionists
and the Retentionists retreat into their own conceptual
bunkers firmly entrenched in their respective "faiths". We
need not take sides with either of them. There is always a
danger in adhering too rigidly to concepts. As Prof. Brett
has pointed out "all concepts are abstractions from reality,
and that in the process of abstraction something of the
reality is bound to be lost''(1). We must therefore, view
the problem against the perspective of the hard realities of
the time and the conditions prevailing in the world,
particularly in our own country.

A review of the world events of the last seven or eight
years, as evident from Encyclopaedia Britannica Year Books
and other material referred to by the learned counsel, would
show that most countries in the world are in the grip of an
ever-rising tide of violent crime. Murders for monetary gain
or from misdirected political motives, robbery, rape assault
are on the increase. India is no exception. The Union of
India has produced for our perusal a statement of facts and
figures showing the incidence of violent crime, including
murder, dacoity and robbery, in the various States of India,
during the years 1965 to 1975. Another statement has been
furnished showing the number of persons convicted of murder
and other capital offences and sentenced to death in some of
the States of India during the period 1974 to 1978. This
statement however, is incomplete and inadequate. On account
of that deficiency and for the general reasons set out
above, it cannot, even statistically show conclusively or
with any degree of certainty, that capital punishment has no
penological worth. But the first statement does bring out
clearly the stark reality that the crimes of murder, dacoity
and robbery in India are since 1965 increasing.

Now, looking around at the world during the last
decade, we may recall that in Purman v. Georgia (decided on
June 29, 1976), the Supreme Court of the United States held
by a majority, that the imposition and carrying out of the
death penalty constitutes 'cruel and unusual' punishment, in
violation of the Eighth and Fourteenth
____________
(1) An Enquiry into Criminal Guilt by Prof. Peter
Brett, 1963 Edn. Melbourne, page 13.
Amendments. Brennan and Marshall, JJ. (differing from the
plurality) went to the extent of holding that death penalty
was per se unconstitutional as it was a cruel and unusual
punishment. In so holding, these learned Justices purported
to adopt the contemporary standards of decency prevailing
among the enlightened public of the United States. Justice
Marshall ruled that "it was morally unacceptable to the
people of the United States". This opinion of the learned
Justices was sharply rebuffed by the people of the United
States through their chosen representatives. Soon after the
decision in Furman, bowing to the thrust of public opinion,
the Legislatures of not less than 32 States, post-haste
revised their penal laws and reinstituted death penalty for
murder and certain other crimes. Public opinion polls then
taken show that approximately 70 per cent of Americans have
been in favour of death penalty. (See 'The Voice', supra).
In 1976, a Gallup Poll taken in the Unitted States showed
that more than 65 per cent of those polled preferred to have
an operative death penalty.

Incidently, the rejection by the people of the approach
adopted by the two learned Judges in Furman, furnishes proof
of the fact that judicial opinion does not necessarily
reflect the moral attitudes of the people. At the same time,
it is a reminder that Judges should not take upon themselves
the responsibility of becoming oracles or spokesmen of
public opinion: Not being representatives of the people, it
is often better, as a matter of judicial restraint, to leave
the function of assessing public opinion to the chosen
representatives of the people in the legislature concerned.

Coming back to the review of the world crime situation,
during the last decade, Saudi Arabia and some other
countries have reinstated death penalty or enacted harsher
punishments not only for murder but some other crimes, also.
In America, apart from 32 States which reinstated death
penalty under revised laws after Furman, the legislatures of
some of the remaining 15 States have either reinstituted or
are considering to reintroduce death penalty. Currently, a
federal legislation for reinstituting or prescribing capital
punishment for a larger range of offences of homicide is
under consideration of United States' Congress. According to
the report of the Amnesty International, in U.S.A., as on
May 1, 1979, death penalty can be imposed for aggravated
murder in 35 States. Attempts have been made in other
countries, also to reintroduce death penalty. In Britain, in
the wake of serious violent incidents of terrorism, a Bill
was moved in Parliament to reintroduce capital punishment
for murder and certain other offences. It was defeated by a
free vote on April 19, 1979. Even so, no less than 243
Members of Parliament had voted in favour of this measure.
We have noted that Israel has also recently reinstituted
death penalty for certain criminal 'acts of in human
cruelty'. In People's Republic of China, a new legislation
was adopted on July 1, 1979 by China's Parliament, according
to
Article 43
of which, death penalty can be imposed "for
the most heinous crimes". In Argentina, the death penalty
was reintroduced in 1976. Similarly, Belgium reintroduced
death penalty and increased the number of crimes punishable
with death. In France, in 1978 a movement in favour of
abolition initiated by the French bishops failed to change
the law under which death penalty is a valid sanction for
murder and certain other offences. In Japan, death penalty
is a legal sanction for 13 crimes. In Greece and Turkey,
death penalty can be imposed for murder and other capital
offences. In Malaysia and the Republic of Singapore under
the
Drugs Act
of May, 1979, misuse of drugs is also
punishable with death. Cuba introduced a new penal code in
February 1978, which provides punishment of death by
shooting for crimes ranging from some types of murder and
robbery to hijacking and rape.

In the U.S.S.R. (Russia), as many as 18 offences are
punishable with death. In Russia, at present, the following
offences committed in peacetime are punishable with death
under the RSFSR Criminal Code:

"Treason (
Article 64
); espoinage (
Article 65
);
terrorism (if the offence includes the killing of an
official (
Article 66
); terrorism against representative
of foreign State (if the offence includes the killing
of such a representative "for the purpose of provoking
war or international compli cations") (
Article 67
);
sabotage (
Article 68
); organizing the commission of any
of the above-named offences (
Article 72
); commission of
any of the above-named offences against other Working
People's State (
Article 73
); banditry (
Article 77
);
actions disrupting the work of corrective labour
institutions (Article 77-1); making or passing
counterfeit money or securities (when the offence is
committed as a form of business) (
Article 87
);
violation of rules for currency transactions (when
committed as a form of business or on
a large scale, or by a person previously convicted
under this Article) (
Art. 88
); stealing of State
property on an especially large scale, regardless of
the manner of stealing (Article 93-1); intentional
homicide with aggravating circumstances (
Article 102
);
rape, when committed by a group of persons or by an
especially dangerous recidivist, or resulting in
especially grave consequences, or the rape of a minor
(
Article 117
); taking a bribe, with especially
aggravating circumstances (
Article 173
); infringing the
life of a policeman or People's Guard, with aggravating
circumstances (Article 191-2); hijacking an aircraft,
if the offence results in death or serious physical
injuries (Article 213-2); resisting a superior or
compelling him to violate official duties, an offence
applicable only to military personnel, and carrying the
death penalty in peace-time if committed in conjunction
with intentional homicide of a superior or any other
person performing military duties (
Article 240
)."

(Vide, Report of Amnesty International, 1979)
Our object in making the above survey is to bring out the
hard fact that in spite of the Abolitionist movement, only
18 States (as on 30 May 1979) in the world have abolished
the death penalty for all offences, while 8 more have
retained it for specific offences committed in time of war,
only. (See Amnesty International Report (1979) page 92).
This means, most of the countries in the modern world still
retain death penalty as a legal sanction for certain
specified offences. The countries which retain death penalty
in their penal laws, such as, Russia, U.S.A., France,
Belgium, Malaysia, China and Japan, etc., cannot, by any
standard, be called uncivilized nations or immature
societies.

Surveyors and students of world events and current
trends believe that the reversal of the attitudes towards
criminals and their judicial punishments in general, and
capital punishment in particular in several countries of the
world, is partly due to the fact that milder sanctions or
corrective processes, or even the alternative of
imprisonment, have been found inadequate and wanting to stem
the mounting tide of serious crime. Writing in Encyclopaedia
Britannica, 1978 Book of the Year under the caption,
'Changing Attitudes Towards Criminals', Richard Whittingham
sums up the cause that has led to the adoption of this New
Hard Line, thus :
"Horror Story after horror story of dangerous
criminals sent back into society on bail or parole from
a penitentiary or (in many cases) release from a mental
institution to commit further crimes have forced people
to say that enough is enough. The consensus seemed to
be that there must be no repetition of such situations
as the one described by Chicago Sun-Times Columnist
Roger Simon in a September 4, 1977, article about a man
who had just been convicted of a particularly
despicable crime."

Faced with the spectre of rising crime, people and
sociologists alike, have started questioning the
rehabilitation policy. "In California another study from the
Rand Cooperation, suggests that keeping habitual criminals
locked up would do more to reduce crime than any
rehabilitation efforts. Despite treatment or preventive
measures, habitual criminals commonly go back to crime after
they are released from prison, the study showed. In
addition, the study found that deterrence to crime was in
direct proportion to the relative certainty of going to
jail, after being caught."

According to Encyclopaedia Britannica Year Book 1979,
in 1978 also penologists were seriously divided in their
views about the end of punishment. Some penologists argued
that "It is not possible to punish and reform
simultaneously": while "others would prefer to strip
punishment of its moral overtones", "While many Legislators
and most penologists have supported the idea that reform
ought to take priority in dealing with offenders, many
Judges especially in Britain and the United States, where
rising crime rates are the source of much public concern
have expressed grave doubts about the wisdom of this view.
They have argued that the courts must reflect a public
abhorrence of crime and that justice demands that some
attempt be made to impose punishment fitting to the crime".

India also, as the statistics furnished by the
respondent (Union of India) show, is afflicted by a rising
rate of violent crime, particularly murder, armed robbery
and dacoity etc., and this has been the cause of much public
concern. All attempts made by individual members to move
Bills in the Parliament for abolition or restriction of the
area of death penalty have ended in failure. At least four
of such unsuccessful attempts were made after India won
Independence, in 1949, 1958, 1961 and 1978. It may be noted
that the last of
these cttempts was only to restrict the death penalty to a
few types of murders specified in the Bill. Though it was
passed by the Rajya Sabha after being recast, it has not
been passed by Lok Sabha.

To sum up, the question whether or not death penalty
serves any penological purpose is a difficult, complex and
intractable issue. It has evoked strong, divergent views.
For the purpose of testing the constitutionality of the
impugned provision as to death penalty in Section 302, Penal
Code on the ground of reasonableness in the light of

Articles 19
and
of the Constitution, it is not necessary
for us to express any categorical opinion, one way or the
other, as to which of these two antithetical views, held by
the Abolitionists and Retentionists, is correct. It is
sufficient to say that the very fact that persons of reason,
learning and light are rationally and deeply divided in
their opinion on this issue, is a ground among others, for
rejecting the petitioners argument that retention of death
penalty in the impugned provision, is totally devoid of
reason and purpose. If, notwithstanding the view of the
Abolitionists to the contrary, a very large segment of
people, the world over, including sociologists, legislators,
jurists, judges and administrators still firmly believe in
the worth and necessity of capital punishment for the
protection of society, if in the perspective of prevailing
crime conditions in India, contemporary public opinion
chanalised through the people's representatives in
Parliament, has repeatedly in the last three decades,
rejected all attempts, including the one made recently to
abolish or specifically restrict the area of death penalty,
if death penalty is still a recognised legal sanction for
murder or some types of murder in most of the civilised
countries in the world, if the framers of the Indian
Constitution were fully aware as we shall presently show
they were of the existence of death penalty as punishment
for murder, under the
Indian Penal Code
, if the 35th Report
and subsequent Reports of the Law Commission suggesting
retention of death penalty, and recommending revision of the

Criminal Procedure Code
and the insertion of the new
Sections 235 (2) and 354 (3) in that Code providing for pre-
sentence hearing and sentencing procedure on conviction for
murder and other capital offences were before the Parliament
and presumably considered by it when in 1972-1973 it took up
revision of the Code of 1898 and replaced it by the
Code of
Criminal Procedure
, 1973, it is not possible to hold that
the provision of death penalty as an alternative punishment
for murder, in Section 302, Penal Code is unreasonable and
not in the
public interest. We would, therefore, conclude that the
impugned provision in Section 302, violates neither the
letter nor the ethos of
Article 19.

We will now consider the issue whether the impugned
limb of the provision in Section 302, Penal Code contravenes

Article 21
of the Constitution.

Before dealing with the contention canvassed on the
point, it will be proper to notice briefly the principles
which should inform the interpretation of
Article 21.

In
Maneka Gandhi
's case, which was a decision by a
Bench of seven learned Judges, it was held by Bhagwati, J.
in his concurring judgment, that the expression 'personal
liberty' in
Article 21
is of the widest amplitude and it
covers a variety of rights which go to constitute the
personal liberty of man and some of them have been raised to
the status of distinct fundamental rights under
Article 19.

It was further observed that
Articles 14
, 19
and
are not
to be interpreted in water-tight compartments, and
consequently, a law depriving a person of personal liberty
and prescribing a procedure for that purpose within the
meaning of
Article 21
has to stand the test of one or more
of the fundamental rights conferred under
Article 19
which
may be applicable in a given situation, ex-hypothesi it must
also be liable to be tested with reference to
Article 14.

The principle of reasonableness pervades all the three
Articles, with the result, that the procedure contemplated
by
Article 21
must be 'right and just and fair' and not
'arbitrary' fancifu or 'oppressive', otherwise, it should be
no procedure at all and the requirement of
Article 21
would
not be satisfied.

Article 21
reads as under:

"No person shall be deprived of his life or
personal liberty except according to procedure
established by law."

If this Article is expanded in accordance with the
interpretative principle indicated in Maneka Gandhi, it will
read as follows:

"No person shall be deprived of his life or
personal liberty except according to fair, just and
reasonable procedure established by valid law."
In the converse positive form, the expanded Article
will read as below:

"A peron may be deprived of his life or personal
liberty in accordance with fair, just and reasonable
procedure established by valid law."

Thus expanded and read for interpretative purposes,
Article
clearly brings out the implication, that the Founding
Fathers recognised the right of the State to deprive a
person of his life or personal liberty in accordance with
fair, just and reasonable procedure established by valid
law. There are several other indications, also, in the
Constitution which show that the Constitution-makers were
fully cognizant of the existence of death penalty for murder
and certain other offences in the
Indian Penal Code
. Entries
1 and 2 in List III-Concurrent List-of the Seventh Schedule,
specifically refer to the
Indian Penal Code
and the
Code of
Criminal Procedure
as in force at the commencement of the
Constitution.
Article 72 (1) (c)
specifically invests the
President with power to suspend, remit or commute the
sentence of any person convicted of any offence, and also
"in all cases where the sentence is a sentence of death".
Likewise, under
Article 161
, the Governor of a State has
been given power to suspend, remit or commute, inter alia
the sentence of death of any person convicted of murder or
other capital offence relating to a matter to which the
executive power of the State extends.
Article 134
, in terms,
gives a right of appeal to the Supreme Court to a person
who, on appeal, is sentenced to death by the High Court,
after reversal of his acquittal by the trial Court. Under
the successive
Criminal Procedure Code
s which have been in
force for about 100 years, a sentence of death is to be
carried out by hanging. In view of the aforesaid
constitutional postulates, by no stretch of imagination can
it be said that death penalty under Section 302, Penal Code,
either per se or because of its execution by hanging,
constitutes an unreasonable, cruel or unusual punishment. By
reason of the same constitutional postulates, it cannot be
said that the framers of the Constitution considered death
sentence for murder or the prescribed traditional mode of
its execution as a degrading punishment which would defile
"the dignity of the individual" within the contemplation of
the Preamble to the Constitution. On parity of reasoning, it
cannot be said that death penalty for the offence of murder
violates the basic structure of the Constitution.
Before we pass on to the main Question No. II, we may
dispose of another contention convassed by Dr. L.M. Singhvi.

It is pointed out that India, as a member of the
International Community, was a participating delegate at the
international conference that made the Stockholm Declaration
on December 11, 1977, that India has also accepted the
International Covenant on Civil and Political Rights adopted
by the Central Assembly of the United Nations, which came
into force on March 23, 1966, and to which some 47
countries, including India, are a party. This being the
position, it is stressed, India stands committed to the
abolition of the death penalty. It is contended that the
constitutional validity and interpretation of the impugned
limb of Section 302, Penal Code, and the sentencing
procedure for capital cases provided in
Section 354 (3)
of
the Code of Criminal Procedure, 1973, must be considered in
the light of the aforesaid Stockholm Declaration and the
International Covenant, which represent the evolving
attitudes and standards of decency in a maturing world.

Let us examine this contention. The European Convention
of Human Rights came into force on September 1, 1953, and 18
countries had signed this Convention on November 4, 1950.
India acceded to this Resolution of the Convention on March
27, 1979. The International Covenant on Civil and Political
Rights, inter alia, provides:

"
Article 6 (1)
Every human being has the inherent
right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life.
(2) In countries which have not abolished the
death penalty, sentence of death may be imposed only
for the most serious crimes in accordance with the law
in force at the time of the commission of the crime...

It will be seen that clauses (1) and (2) of
Article 6
do not
abolish or prohibit the imposition of death penalty in all
circumstances. All that they require is that, firstly, death
penalty shall not be arbitrarily inflicted; secondly, it
shall be imposed only for most serious crimes in accordance
with a law, which shall not be an ex post facto legislation.
Thus, the requirements of these clauses are substantially
the same as the guarantees or prohibitions contained in

Articles 20
and
of our Constitution. India's commitment
therefore does not go beyond what is provided in the
Constitution and the
Indian Penal Code
and the
Criminal
Procedure Code
. The Penal Code prescribes death penalty as
an alternative punishment only for heinous crimes which are
not more than seven in number.
Section 354 (3)
of the
Criminal Procedure Code, 1973, as we shall presently
discuss, in keeping with the spirit of the International
Covenant, has further restricted the area of death penalty.
India's penal laws, including the impugned provisions and
their application, are thus entirely in accord with its
international commitment.

It will be pertinent to note that most of the countries
including those who have subscribed to this International
covenant, retain death penalty for murder and certain other
crimes even to the present day in their penal laws. Neither
the new interpretative dimensions given to
Articles 19
and
by this Court in
Maneka Gandhi and Charles Sobraj v. The
Superintendent Central Jail, Tihar, New Delhi
(1) nor the
acceptance by India of the International Covenant on Civil
and Political Rights, makes any change in the prevailing
standards of decency and human dignity by which counsel
require us to judge the constitutional validity of the
impugned provisions. The International Covenant, as already
noticed, does not outlaw capital punishment for murder,
altogether.

For all the foregoing reasons, we would answer the
first main question in the negative. This takes us to
Question No. II.

Question No.II.

Are the provisions of
Section 354 (3)
of the Code of
Criminal Procedure, 1973 unconstitutional ? That is the
question. The constitutional validity of section 354 (3) is
assailed on these grounds:

(i) (a)
Section 354 (3)
of the Code of Criminal
Procedure, 1973, delegates to the Court the
duty to legislate the field of 'special
reasons' for choosing between life and death,
and
____________________
(1) [1979] 1 S.C.R. 512.
(b) permits imposition of death penalty in an
arbitrary and whimsical manner in as much as
it does not lay down any rational principies
or criteria for invoking this extreme
sanction. (Reliance has been placed on Furman
v. Georgia (ibid).

(ii) If Section 354 (3) is to be saved from the vice of
unconstitutionality, the Court should so interpret
it and define its scope that the imposition of
death penalty comes to be restricted only to those
types of grave murders and capital offences which
imperil the very existence and security of the
State. (Reliance for this argument has been placed
on
Rajendra Prasad
's case (ibid) ).

As against this, the learned Solicitor-General submits
that the policy of the law in the matter of imposition of
death sentence is writ large and clear in Section 354 (3),
namely, that life imprisonment is the rule and death
sentence an exception; that the correct approach should be
to apply this policy to the relevant facts of the particular
case, bearing on the question of sentence, and to find out
if there are any exceptional reasons justifying imposition
of the death penalty, as a departure from the normal rule.

It is submitted that conferment of such sentencing
discretion on the courts, to be exercised judicially, in no
sense, amounts to delegation of the legislative powers by
Parliament.

Shri Sorabji further submits that there is no inherent
impossibility in formulating broad guidelines consistent
with the policy indicated by the legislature, for the
exercise of the judicial functions under Section 354 (3). He
emphasises that only broad guidelines, as distinct from
rigid rules, can be
laid down by
the Court. Since the
discretion-proceeds the argument-is to be exercised
judicially after taking into consideration all the
aggravating and mitigating circumstances relating to the
crime and the criminal in a particular case, and ample
safeguards by way of appeal and reference to the superior
courts against erroneous or arbitrary exercise of the
sentencing discretion have been provided, Section 354 (3)
cannot be said to be violative of
Articles 14
, 19
and
or
anything else in the Constitution,
Before embarking upon a discussion of the arguments
advanced on both sides, it is necessary to have a peep into
the history and the legislative background of the procedural
provisions relating to sentencing in the Code of criminal
Procedure.

Under the
Code of Criminal Procedure
, 1898, as it stood
before its amendment by Act No. 26 of 1955, even for the
seven offences mentioned earlier, which are punishable in
the alternative with death, the normal sentence was the
death sentence, and if the Court wanted to depart from this
rule, it had to give reasons for doing so. This requirement
was embodied in subsection (5) of Section 367, which, as it
then stood, was as follows: "If the accused is convicted of
an offence punishable with death and the Court sentences him
to any punishment other than death, the Court shall in its
judgment state the reason why sentence of death was not
passed.

The Law Commission in its 35th Report (Vol. I), made
the following comments on this provision:

"...a considerable body of opinion is in favour of
a provision requiring the court to state its
reasons for imposing the punishment either of
death or of imprisonment for life. Further, this
would be good safeguard to ensure that the lower
courts examine the case as elaborately from the
point of view of sentence as from the point of
view of guilt...It would increase the confidence
of the people, in the courts, by showing that the
discretion is judicially exercised. It would also
facilitate the task of the High Court in appeal or
in proceedings for confirmation in respect of the
sentence (where the sentence awarded is that of
death) or in proceedings in revision for
enhancement of the sentence (where the sentence
awarded is one of imprisonment of life."

In deferance to this recommendation, section 66 of the Code
of Criminal Procedure (Amendment) Act, 1955 (XXVI of 1955)
deleted old sub-section (5) of Section 367 with effect from
January 1, 1956, and thereafter, for such capital offences,
it was left to the Court, on the facts of each case, to
pass, in its discretion, for reason to be
recorded, the sentence of death or the lesser sentence. This
led to some difference of opinion whether, even after the
Amendment of 1955, in case of murder the normal punishment
was death or imprisonment for life (See A.I.R. Commentaries
on the
Code of Criminal Procedure
, Vol. 3, page 565, by D.V.
Chitaley and S. Appu Rao). Overruling its earlier decision,
the Bombay High Court in the
State v. Vali Mohammad
,(1) held
that death is not a normal penalty for murder. As against
this, the Division Bench of the Madras High Court in
Veluchami Thevar,(2) held that death was the normal
punishment where there were no extenuating circumstances.
The third set of cases held that both the sentences were
normal but the discretion as regards sentence was to be
exercised in the light of facts and circumstances of the
case.

This view appears to be in accord with the decision of
this Court in
Iman Ali & Anr. v. State of Assam
.(3) In that
case, there was a clear finding by the Court of Session
which had been upheld by the High Court, that each of the
two appellants therein, committed a cold-blooded murder by
shooting two inmates of the house simply with the object of
facilitating commission of dacoity by them. Those persons
were shot and killed even though they had not tried to put
up any resistence. It was held by this Court (speaking
through Bhargava, J.) that in these circumstances where the
murders were committed in cold-blood with the sole object of
committing dacoity, the Sessions Judge had not exercised his
discretion judicially in not imposing the death sentence,
and the High Court was justified in enhancing the sentence
of the appellants from life imprisonment to death.

Jagmohan Singh
's case, which we shall notice presently
in further detail, proceeds on the hypothesis that even
after the deletion of sub-section (5) of Section 367 in the
Code of 1898, both the alternative sentences provided in
Section 302, Penal Code are normal punishment for murder,
and the choice of either sentence rests in the discretion of
the Court which is to be exercised judicially, after taking
into account all the relevant circumstances of the case.
__________________
(1) AIR 1959 Bom. 294 (299).

(2) A.I.R. 1965 Mad. 48 at p. 49.

(3) [1968] 3 S.C.R. 610.
Section 354 (3)
of the Code of Criminal Procedure,
1973, marks a significant shift in the legislative policy
underlying the Code of 1898, as in force immediately before
Apr. 1, 1974, according to which both the alternative
sentences of death or imprisonment for life provided for
murder and for certain other capital offences under the
Penal Code, were normal sentences. Now, according to this
changed legislative policy which is patent on the face of
Section 354 (3), the normal punishment for murder and six
other capital offences under the Penal Code, is imprisonment
for life (or imprisonment for a term of years) and death
penalty is an exception. The Joint Committee of Parliament
in its Report, stated the object and reason of making this
change, as follows:

"A sentence of death is the extreme penalty of law
and it is but fair that when a Court awards that
sentence in a case where the alternative sentence of
imprisonment for life is also available, it should give
special reasons in support of the sentence"

Accordingly, sub-section (3) of Section 354 of the current
Code 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."

In the context, we may also notice Section 235 (2) of
the Code of 1973, because it makes not only explicit, what
according to the decision in
Jagmohan
's case was implicit in
the scheme of the Code, but also bifurcates the trial by
providing for two hearings, one at the pre-conviction stage
and another at the pre-sentence stage. It requires that:

"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."
The Law Commission on its 48th Report had pointed out
this deficiency in the sentencing procedure:

"45. It is now being increasingly recognised that
a rational and consistent sentencing policy requires
the removal or several deficiencies in the present
system. One such deficiency is the lack of
comprehensive information as to characteristics and
background of the offender.

The aims of sentencing:-Themselves obscure-become
all the more so in the absence of information on which
the correctional process is to operate. The public as
well so the courts themselves are in the dark about
judicial approach in this regard.

We are of the view that the taking of evidence as
to the circustances relevant to sentencing should be
encouraged and both the prosecution and the accused
should be allowed to cooperate in the process."

By enacting Section 235 (2) of the New Code, Parliament
has accepted that recommendation of the Law Commission.
Although sub-section (2) of Section 235 does not contain a
specific provision as to evidence and provides only for
hearing of the accused as to sentence, yet it is implicit in
this provision that if a request is made in that behalf by
either the prosecution or the accused, or by both, the Judge
should give the party or parties concerned an opportunity of
producing evidence or material relating to the various
factors bearing on the question of sentence. "Of course", as
was pointed out by this Court in
Santa Singh v. State of
Punjab
,(1) "care would have to be taken by the Court to see
that this hearing on the question of sentence is not turned
into an instrument for unduly protracting the proceedings.
The claim of due and proper hearing would have to be
harmonised with the requirement of expeditious disposal of
proceedings."

We may also notice Sections 432, 433 and 433A, as they
throw light as to whether life imprisonment as currently
administered in
______________
(1) A.I.R. 1976 SC. 2286.
India, can be considered an adequate alternative to the
capital sentence even in extremely heinous cases of murder.

Sections 432 and 433 of the Code of 1973 continue
Sections 401 and 402 of the Code of 1898, with necessary
modifications which bring them in tune with
Articles 72
and
of the Constitution. Section 432 invests the
"appropriate Government" (as defined in sub-section (7) of
that Section) with power to suspend or remit sentences.
Section 433 confers on the appropriate Government power to
commute sentence, without the consent of the person
sentenced. Under clause (a) of the Section, the appropriate
Government may commute a sentence of death, for any other
punishment provided by the
Indian Penal Code
.

With effect from December 18, 1978, the
Code of
Criminal Procedure (Amendment) Act, 1978
, inserted new
Section 433A, which runs as under :

"433A. Restriction on powers of remission or
commutation in certain cases-Notwithstanding anything
contained in Section 432, where a sentence of
imprisonment for life is imposed on conviction of a
person for an offence for which death is one of the
punishments provided by law or where a sentence of
death imposed on a person has been commuted under
Section 433 into one of imprisonment for life, such
person shall not be released from prison unless he had
served at least fourteen years of imprisonment."

It may be recalled that in Jagmohan this Court had
observed that, in practice, life imprisonment amounts to 12
years in prison. Now, Section 433A restricts the power of
remission and commutation conferred on the appropriate
Government under Sections 432 and 433, so that a person who
is sentenced to imprisonment for life or whose death
sentence is commuted to imprisonment for life must serve
actual imprisonment for a minimum of 14 years.

We may next notice other provisions of the extent Code
(corresponding to Sections 374, 375, 376 and 377 of the
repealed Code) bearing on capital punishment. Section 366

(i) of the Code requires the Court passing a sentence of
death to submit the proceedings to the High Court, and
further mandates that such a sentence shall not be executed
unless it is confirmed by the High Court. On such a
reference for confirmation of death sentence, the High Court
is required to proceed in accordance with Sections 367 and

368. Section 367 gives power to the High Court to direct
further inquiry to be made or additional evidence to be
taken. Section 368 empowers the High Court to confirm the
sentence of death or pass any other sentence warranted by
law or to annul or alter the conviction or order a new trial
or acquit the accused. Section 369 enjoins that in every
case so submitted, the confirmation of the sentence, or any
new sentence or order passed by the High Court, shall, when
such court consists of two or more Judges, be made, passed
and signed by at least two of them. Section 370 provides
that where any such case is heard before a Bench of Judges
and such Judges are equally divided in opinion, the case
shall be referred to a third Judge.

In this fasciculus of Sections relating to confirmation
proceedings in the High Court, the Legislature has provided
valuable safeguards of the life and liberty of the subject
in cases of capital sentences. These provisions seek to
ensure that where in a capital case, the life of the
convicted person is at stake, the entire evidential material
bearing on the innocence or guilt of the accused and the
question of sentence must be scrutinised with utmost caution
and care by a superior Court.

The High Court has been given very wide powers under
these provisions to prevent any possible miscarriage of
justice.
In
State of Maharashtra v. Sindhi
, (1) this Court
reiterated, with emphasis, that while dealing with a
reference for confirmation of a sentence of death, the High
Court must consider the proceedings in all their aspects
reappraise, reassess and reconsider the entire facts and law
and, if necessary, after taking additional evidence, come to
its own conclusions on the material on record in regard to
the conviction of the accused (and the sentence)
independently of the view expressed by the Sessions Judge.

Similarly, where on appeal, the High Court reverses an
acquittal, and convicts the accused person and sentences him
to death, Section 379 of the Code of 1973, gives him a right
of appeal to the Supreme Court. Finally, there is
Article
of the Constitution under which the Supreme Court is
empowered, in its discretion, to
__________
(1) A.I.R. 1975 S.C. 1665.
entertain an appeal on behalf of a person whose sentence of
death awarded by the Sessions Judge is confirmed by the High
Court.

In the light of the above conspectus, we will now
consider the effect of the aforesaid legislative changes on
the authority and efficacy of the propositions
laid down by

this Court in
Jagmohan
's case. These propositions may be
summed up as under :

(i) The general legislative policy that underlines the
structure of our criminal law, principally
contained in the
Indian Penal Code
and the

Criminal Procedure Code
, is to define an offence
with sufficient clarity and to prescribe only the
maximum punishment therefor, and to allow a very
wide discretion to the Judge in the matter of
fixing the degree of punishment.

With the solitary exception of Section 303,
the same policy permeates Section 302 and some
other sections of the Penal Code, where the
maximum punishment is the death penalty.

(ii) (a) No exhaustive enumeration of aggravating or
mitigating circumstances which should be
considered when sentencing an offender, is
possible. "The infinite variety of cases and
facts to each case would make general
standards either meaningless 'boiler plate'
or a statement of the obvious that no Jury
(Judge) would need." (Referred to McGauthe v.
California(1)

(b) The impossibility of laying down standards is
at the very core of the criminal law as
administered in India which invests the
judges with a very wide discretion in the
matter of fixing the degree of punishment.

(iii) The view taken by the plurality in Furman v.
Georgia decided by the Supreme Court of the United
States, to the effect, that a law which gives
uncontrolled and un-
_____________________
(1) [1971] 402 US 183.
guided discretion to the Jury (or the Judge) to
choose arbitrarily between a sentence of death and
imprisonment for a capital offence, violates the
Eighth Amendment, is not applicable in India. We
do not have in our Constitution any provision like
the Eighth Amendment, nor are we at liberty to
apply the test of reasonableness with the freedom
with which the Judges of the Supreme Court of
America are accustomed to apply "the due process"

clause. There are grave doubts about the
expediency of transplanting western experience in
our country. Social conditions are different and
so also the general intellectual level. Arguments
which would be valid in respect of one area of the
world may not hold good in respect of another
area.

(iv) (a) This discretion in the matter of sentence is
to be exercised by the Judge judicially,
after balancing all the aggravating and
mitigating circumstances of the crime.

(b) The discretion is liable to be corrected by
superior courts. The exercise of judicial
discretion on well-recognised principles is,
in the final analysis, the safest possible
safeguard for the accused.

In view of the above, it will be
impossible to say that there would be at all
any discrimination, since crime as crime may
appear to be superficially the same but the
facts and circumstances of a crime are widely
different. Thus considered the provision in
Section 302, Penal Code is not violative of

Article 14
of the Constitution on the ground
that it confers on the judges an unguided and
uncontrolled discretion in the matter of
awarding capital punishment of imprisonment
for life.

(v) (a) Relevant facts and circumstances impinging on
the nature and circumstances of the crime can
be brought before the Court at the
preconviction
stage, notwithstanding the fact that no
formal procedure for producing evidence
regarding such facts and circumstances had
been specifically provided. Where counsel
addresses the Court with regard to the
character and standing of the accused, they
are duly considered by the Court unless there
is something in the evidence itself which
belies him or the Public Prosecutor
challenges the facts.

(b) It is to be emphasised that in exercising its
discretion to choose either of the two
alternative sentences provided in Section
302, Penal Code, "the Court is principally
concerned with the facts and circumstances
whether aggravating or mitigating, which are
connected with the particular crime under
inquiry. All such facts and circumstances are
capable of being proved in accordance with
the provisions of the
Indian Evidence Act
in
a trial regulated by the Cr. P.C. The trial
does not come to an end until all the
relevant facts are proved and the counsel on
both sides have an opportunity to address the
Court. The only thing that remains is for the
Judge to decide on the guilt and punishment
and that is what Sections 306(2) and 309(2)
Cr. P.C. purport to provide for. These
provisions are part of the procedure
established by law and unless it is shown
that they are invalid for any other reasons
they must be regarded as valid. No reasons
are offered to show that they are
constitutionally invalid and hence the death
sentence imposed after trial in accordance
with the procedure established by law is not
unconstitutional under
Article 21."

(emphasis added)
A study of the propositions set out above, will show
that in substance, the authority of none of them has been
affected by the legislative changes since the decision in

Jagmohan
's case. Of course, two of them require to be
adjusted and attuned to the shift in the
legislative policy.
The first of those propositions is No.

(iv) (a) which postulates, that according to the then extant

Code of Criminal Procedure
both the alternative sentences
provided in Section 302, Penal Code are normal sentences,
and the Court can, therefore, after weighing the aggravating
and mitigating circumstances of the particular case, in its
discretion, impose either of those sentences. This postulate
has now been modified by Section 354(3) which mandates the
Court convicting a person for an offence punishable with
death or, in the alternative with imprisonment for life or
imprisonment for a term of years, not to impose the sentence
of death on that person unless there are "special reasons"-
to be recorded-for such sentence. The expression "special
reasons" in the context of this provision, obviously means
"exceptional reasons" founded on the exceptionally grave
circumstances of the particular case relating to the crime
as well as the criminal. Thus, the legislative policy now
writ large and clear on the face of Section 354(3) is that
on conviction for murder and other capital offences
punishable in the alternative with death under the Penal
Code, the extreme penalty should be imposed only in extreme
cases.

In this view we are in accord with the dictum of this
Court in
Balwant Singh v. State of Punjab
(1), wherein the
interpretation of Section 354(3) first came up for
consideration. After surveying the legislative background,
one of us (Untwalia, J,) speaking for the Court, summed up
the scope and implications of Section 354 (3), thus :

"Under this provision the Court is required to
state the reasons for the sentence awarded and in the
case of sentence of death, special reasons are required
to be stated. It would thus be noticed that awarding of
the sentence other than the sentence of death is the
general rule now and only special reasons that is to
say, special facts and circumstances in a given case,
will warrant the passing of the death sentence. It is
unnecessary nor is it possible to make a catalogue of
the special reasons which may justify the passing of
the death sentence in a case."

While applying proposition (iv) (a), therefore, the Court
has to bear
_____________________
(1) A.I.R.1976 SC 231=[1976] 2 SCR 684.
in mind this fundamental principle of policy embodied in
Section 354(3).

Another proposition, the application of which, to an
extent, is affected by the legislative changes, is No. (v).
In portion (a) of that proposition, it is said that
circumstances impinging on the nature and circumstances of
the crime can be brought on record before the pre-conviction
stage. In portion (b), it is emphasised that while making
choice of the sentence under Section 302, Penal Code, the
Court is principally concerned with the circumstances
connected with the particular crime under inquiry. Now,
Section 235(2) provides for a bifurcated trial and
specifically gives the accused person a right of pre-
sentence hearing, at which stage, he can bring on record
material or evidence, which may not be strictly relevant to
or connected with the particular crime under inquiry, but
nevertheless, have, consistently with the policy underlined
in Section 354(3), a bearing on the choice of sentence. The
present legislative policy discernible from Section 235(2)
read with Section 354(3) is that in fixing the degree of
punishment or making the choice of sentence for various
offences, including one under Section 302, Penal Code, the
Court should not confine its consideration principally" or
merely to the circumstances connected with the particular
crime, but also give due consideration to the circumstances
of the criminal.

Attuned to the legislative policy delineated in
Sections 354(3) and 235(2), propositions (iv) (a) and (v)

(b) in Jagmohan, shall have to be recast and may be stated
as below :

(a) The normal rule is that the offence of muder shall
be punished with the sentence of life
imprisonment. The court can depart from that rule
and impose the sentence of death only if there are
special reasons for doing so. Such reasons must be
recorded in writing before imposing the death
sentence.

(b) While considering the question of sentence to be
imposed for the offence of murder under Section
302 Penal Code, the court must have regard to
every relevant circumstance relating to the crime
as well as the criminal. If the court finds, but
not otherwise, that the
offence is of an exceptionally depraved and
heinous character and constitutes, on account of
its design and the manner of its execution, a
source of grave danger to the society at large,
the court may impose the death sentence.

The soundness or application of the other propositions
in Jagmohan, and the premises on which they rest, are not
affected in any way by the legislative changes since
effected. On the contrary these changes reinforce the
reasons given in Jagmohan, for holding that the impugned
provisions of the Penal Code and the
Criminal Procedure Code

do not offend
Articles 14
and
of the Constitution. Now,
Parliament has in Section 354(3) given a broad and clear
guideline which is to serve the purpose of lodestar to the
court in the exercise of its sentencing discretion.
Parliament has advisedly not restricted this sentencing
discretion further, as, in its legislative judgment, it is
neither possible nor desirable to do so. Parliament could
not but be aware that since the
Amending Act
26 of 1955,
death penalty has been imposed by courts on an extremely
small percentage of persons convicted of murder-a fact which
demonstrates that courts have generally exercised their
discretion in inflicting this extreme penalty with great
circumspection, caution and restraint. Cognizant of the past
experience of the administration of death penalty in India,
Parliament, in its wisdom, thought it best and safe to leave
the imposition of this gravest punishment in gravest cases
of murder, to the judicial discretion of the courts which
are manned by persons of reason, experience and standing in
the profession. The exercise of this sentencing discretion
cannot be said to be untrammelled and unguided. It is
exercised judicially in accordance with well-recognised
principles crystalised by judicial decisions, directed along
the broad contours of legislative policy towards the
signposts enacted in Section 354(3).

The new Section 235 (2) adds to the number of several
other safeguards which were embodied in the
Criminal
Procedure Code
of 1898 and have been re-enacted in the Code
of 1973. Then, the errors in the exercise of this guided
judicial discretion are liable to be corrected by the
superior courts. The procedure provided in
Criminal
Procedure Code
for imposing capital punishment for murder
and some other capital crimes under the Penal Code cannot,
by any reckoning, be said to be unfair unreasonable and
unjust,
Nor can it be said that this sentencing discretion, with
which the courts are invested, amounts to delegation of its
power of legislation by Parliament. The argument to that
effect is entirely misconceived. We would, therefore, re-
affirm the view taken by this Court in Jagmohan, and hold
that the impgned provisions do not violate
Articles 14
, 19

and
of the Constitution.

Now, remains the question whether this Court can lay
down standards or norms restricting the area of the
imposition of death penalty to a narrow category of murders.

Dr. Chitale contends that the wide observations in
Jagmohan as to the impossibility of laying down standards or
norms in the matter of segtencing are too sweeping. It is
submitted that soon after the decision in Furman, several
States in U.S.A. amended their penal statutes and brought
them in conformity with the requirements of Furman. Support
has also been sought for this argument from Gregg v.
Georgia, wherein the Supreme Court of the United States held
that the concern expressed in Furman decision that death
penalty may not be imposed in an arbitrary or capricious
manner could be met by a carefully drafted statute ensuring
that the sentencing authority was given adequate guidance
and information for determining the appropriate sentence, a
bifurcated sentencing proceeding being preferable as a
general proposition.

If by "laying down standards", it is meant that
'murder' should be categorised before hand according to the
degrees of its culpability and all the aggravating and
mitigating circumstances should be exhaustively and rigidly
enumerated so as to exclude all free-play of discretion, the
argument merits rejection.

As pointed out in Jagmohan, such "standardisation" is
well-nigh impossible.

Firstly, there is little agreement among penologists
and jurists as to what information about the crime and
criminal is relevant and what is not relevant for fixing the
dose of punishment for a person convicted of a particular
offence. According to Cessare Beccaria, who is supposed to
be the intellectual progenitor of today's fixed sentencing
movement 'crimes are only to be measured by the injnry done
to society'. But the 20th Century sociologists do not wholly
agree
with this view. In the opinion of Von Hirsch, the
"seriousness of a crime depends both on the harm done (or
risked) by the act and degree of the actor's culpability".
But how is the degree of that culpability to be measured.
Can any thermometer be devised to measure its degree ? This
is a very baffling, difficult and intricate problem.

Secondly, criminal cases do not fall into set-
behavioristic patterns. Even within a single-category
offence there are infinite, unpredictable and unforceable
variations. No two cases are exactly identical. There are
countless permutations and combinations which are beyond the
anticipatory capacity of the human calculus. Each case
presents its own distinctive features, its peculiar
combinations of events and its unique configuration of
facts. "Simply in terms of blame-worthiness or dessert
criminal cases are diferent from one another in ways that
legislatures cannot anticipate, and limitations of language
prevent the precise description of differences that can be
anticipated."(1) This is particularly true of murder. "There
is probably no offence", observed Sir Ernest Growers,
Chairman of the Royal Commission, "that varies so widely
both in character and in moral guilt as that which falls
within the legal definition of murder." The futility of
attempting to lay down exhaustive standards was demonstrated
by this Court in Jagmohan by citing the instance of the
Model Penal Code which was presented to the American Supreme
Court in McGoutha.

Thirdly, a standardisation of the sentencing process
which leaves little room for judicial discretion to take
account of variations in culpability within single-offence
category ceases to be judicial. It tends to sacrifice
justice at the alter of blind uniformity. Indeed, there is a
real danger of such mechanical standardisation degenerating
into a bed of procrustean cruelty.

Fourthly, standardisation or sentencing discretion is a
policy matter which belongs to the sphere of legislation.
When Parliament as a matter of sound legislative policy, did
not deliberately restrict, control or standardise the
sentencing discretion any further than that incompassed by
the broad contours delineated in Section 354 (3),
_____________
(1) Messinger and Bittner's Crimonology Year Book
(Ibid) Albert W, Alcherler's article at page 421.
the Court would not by over-leaping its bounds rush to do
what Parliament, in its wisdom, varily did not do.

We must leave upto the Legislature, the things that are
Legislature's. "The highest judicial duty is to recognise
the limits on judicial power and to permit the democratic
processes to deal with matters falling outside of those
limits". As Judges, we have to resist the temptation to
substitute our own value choices for the will of the people.
Since substituted judicial 'made-to-order' standards,
howsoever painstakingly made, do not bear the peoples
imprimatur, they may not have the same authenticity and
efficacy as the silent zones and green belts designedly
marked out and left open by Parliament in its legislative
planning for fair-play of judicial discretion to take care
of the variable, unpredictable circumstances of the
individual cases, relevant to individualised sentencing.
When judges, acting individually or collectively, in their
benign anxiety to do what they think is morally good for the
people, take upon themselves, the responsibility of setting
down social norms of conduct. There is every danger, despite
their effort to make a rational guess of the notions of
right and wrong prevailing in the community at large and
despite their intention to abide by the dictates of mere
reason, that they might write their own peculiar view or
personal pre-dilection into the law, sincerely mistaking
that changeling for what they perceive to be the community
ethic. The perception of 'community' standards or ethics may
vary from Judge to Judge. In this sensitive, highly
controversial area of death penalty, with all its
complexity, vast implications and manifold ramifications,
even all the Judges sitting cloistered in this Court and
acting unanimously, cannot assume the role which properly
belongs to the chosen representatives of the people in
Parliament, particularly when Judges have no divining rod to
divine accurately the will of the people. In Furman, the
Hon'ble Judges claimed to articulate the contemporary
standards of morality among the American people. But
speaking through public referenda, Gallup polls and the
state legislatures, the American people sharply rebuffed
them. We must draw a lesson from the same.

What the learned Chief Justice, who is amongst us in
this case has said recently in
Gurbaksh Singh Sibbia and
others v. State of Punjab
(1) in the context of laying down
standards in the discre-

________________________
(1) Criminal Appeals Nos. 335 etc. of 1977 and 81 and
82 of 1978.
tionary area of anticipatory bail, comes in as a timely
reminder. In principle, these observations aptly apply to
the desirability and feasibility of laying down standards in
the area of sentencing discretion, also. Let us therefore,
hark to the same:

"Generalisations on matters which rest on discretion
and the attempt to discover formulae of universal
application when facts are bound to differ from case to case
frustrate the very purpose of conferring discretion. No two
cases are alike on facts and, therefore, Courts have to be
allowed a little free play in the joints if the conferment
of discretionary power is to be meaningful. There is no risk
involved in entrusting a wide discretion to the Court of
Session and the High Court in granting anticipatory bail
because, firstly, these are higher courts manned by
experienced persons, secondly, their orders are not final
but are open to appellate or revisional scrutiny and above
all because, discretion has always to be exercised by courts
judicially and not according to whim, caprice or fancy. On
the other hand, there is a risk in foreclosing categories of
cases in which anticipatory bail may be allowed because life
throws up unforeseen possibilities and offers new
challenges. Judicial discretion has to be free enough to be
able to take these possibilities in its stride and to meet
these challenges. While dealing with the necessity for
preserving judicial discretion unhampered by rules of
general application, Earl Loreburn L.C. said in Hyman and
Anr. v. Rose(1).

"I desire in the first instance to point out that
the discretion given by the section is very wide. Now
it seems to me that when the Act is so express to
provide a wide discretion...it is not advisable to lay
down any rigid rules for guiding that discretion. I do
not doubt that the rules enunciated by the Master of
the Rolls in the present case are useful maxims in
general, and that in general they reflect the point-of
view from which judges would regard an application for
relief. But I think it ought to be distinctly
understood that there may be cases in which any or all
of them may be disregarded. If it were otherwise, the
free discretion given by the statute would be fettered
by limitations which have nowhere been enacted. It is
one thing to decide what is the true meaning of the
language contained
___________________________
(1) [1912] A.C. 623,
in an Act of Parliament. It is quite a different thing
to place conditions upon a free discretion entrusted by
statute to the Court where the conditions are not based
upon statutory enactment at all. It is not safe. I
think, to say that the Court must and will always
insist upon certain things when the Act does not
require them, and the facts of some unforeseen case may
make the Court wish it had kept a free hand."

"Judges have to decide cases as they come before them,
mindful of the need to keep passions and prejudices out of
their decisions. And it will be strange if, by employing
judicial artifices and techniques, we cut down the
discretion so wisely conferred upon the Courts, by devising
a formula which will confine the power to grant anticipatory
bail within a strait-jacket. While laying down cast-iron
rules in a matter like granting anticipatory bail, as the
High Court has done, it is apt to be overlooked that even
Judges can have but an imperfect awareness of the needs of
new situations. Life is never static and every situation has
to be assessed in the context of emerging concerns as and
when it arises. Therefore, even if we were to frame a 'Code
for the grant of anticipatory bail', which really is the
business of the legislature, it can at best furnish broad
guidelines and cannot compel blind adherence."

From what has been extracted above, it is clear that
this Court should not venture to formulate rigid standards
in an area in which the Legislature so warily treads. Only
broad guidelines consistent with the policy indicated by the
Legislature in Section 354(3) can be laid down. Before we
come to this aspect of the matter, it will be fair to notice
briefly the decisions of the Supreme Court of U.S.A. in
Gregg v. Georgia and companion cases.

Soon after the decision in Furman, the Georgia
Legislature amended its statutory scheme. The amended
statute retains the death penalty for six categories of
crime: murder, kidnapping for ransom or where victim is
harmed, armed robbery, rape, treason, and aircraft
hijacking. The statutory aggravating circumstances, the
existence of any of which may justify the imposition of the
extreme penalty of death, as provided in that statute, are:

"(1) The offence of murder, rape, armed robbery,
or
kidnapping was committed by a person with a prior
record of conviction for a capital felony, (or the
offence of murder was committed by a person who has a
substantial history of serious assaultive criminal
convictions).

(2) The offence of murder, rape, armed robbery,
or kidnapping was committed while the offender was
engaged in the commission of another capital felony, or
aggravated battery, or the offence of murder was
committed while the offender was engaged in the
commission of burglary or arson in the first degree.
(3) The offender by his act of murder, armed
robbery, or kidnapping knowingly created a great risk
of death to more than one person in a public place by
means of a weapon or device which would normally be
hazaradous to the lives of more than one person.
(4) The offender committed the offence of murder
for himself or another, for the purpose of receiving
money or any other thing of monetary value.
(5) The murder of a judicial officer, former
judicial officer, district attorney or solicitor or
former district attorney or solicitor during or because
of the exercise of his official duty.

(6) The offender caused or directed another to
committed murder as an agent or employee of another
person.

(7) The offence of murder, rape, armed robbery,
or kidnapping was outrageiously or want only vile
horrible or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the
victim.

(8) The offence of murder was committed against
any peace officer, corrections employee or fireman
while engaged in the performance or his official
duties.

(9) The offence of murder was committed by a
person in, or who has escaped from, the lawful custody
of a peace officer or place of lawful confinement.
(10) The murder was committed for the purpose of
avoiding, interfering with, or preventing a lawful
arrest or custody in a place of lawful confinement, of
himself or another."

The Supreme Court of Georgia in
Arnold v. State
(1),
held unconstitutional the portion (within brackets) of the
first circumstances encompassing persons who have a
"substantial history of serious assaultive criminal
convictions" but did not set clear and objective standards.

The amended statute, also, provided for a bifurcated
trial and a pre-sentence hearing. It also provides for an
automatic appeal of death sentence to the Supreme Court of
Georgia, which may or may not affirm the death sentence. The
appellate court is also required to include reference to
similar cases that the court considered.

The defendant (accused
)
in that case
was convicted of
two counts of armed robbery and two counts of murder. The
accused had committed the murders for the purpose of
receiving money and an automobile of one of the victims.
After reviewing the trial record, the Georgia Supreme Court
affirmed the convictions and the imposition of death
sentences for murder, only. The constitutional validity of
the amended statutory scheme of Georgia was challenged
before the Supreme Court of U.S.A. on the ground that the
imposition of the death penalty for the crime of murder
under the Georgia statute violated the prohibition against
the infliction of cruel and unusual punishment under the
Eighth and Fourteenth Amendments.

Likewise in the companion case Proffitt v. Florida (2),
the Florida Legislature adopted new statutes that authorised
the imposition of the death penalty on those convicted of
first-degree murders. Under the new Florida statutes, if a
defendant (accused) is found guilty of first-degree murder,
a separate presentence hearing is held before the jury,
where arguments may be presented and where any evidence
deemed relevant to sentencing may be admitted and must
include matters relating to eight aggravating and seven
mitigating circumstances specified in the statutes, the jury
is directed to weigh such circumstances and return an
advisory verdict as to the sentence.

__________________
(1) 236 Ga 534, 540, 224 SE 2d 386, 391 (1976)
(2) 428 US 242, 49 L. Ed 2d 913 (1976).
The actual sentence is, however, determined by the trial
judge, who is also directed to weigh the statutory
aggravating and mitigating circumstances. If a death
sentence is imposed, the trial court must set forth in
writing its fact findings that sufficient statutory
aggravating circumstances exist and are not outweighed by
statutory mitigating circumstances. Just as in the Georgia
statute, a death sentence is to be automatically reviewed by
the Supreme Court of Florida. Under this new statutory
scheme, the Florida Court found Proffitt (defendant) guilty
of first-degree murder and sentenced him to death on the
finding that these aggravating circumstances were
established :

"(1) The murder was premeditated and occurred in the
course of a felony (burglary);

(2) the defendant had the propensity to commit murder;
(3) the murder was especially heinous, atrocious, and
cruel ; and
(4) the defendant knowingly, through his intentional
act, had created a great risk of serious bodily
harm and death to many persons."

The trial judge also found specifically that none of the
statutory mitigating circumstances existed. The Supreme
Court of Florida affirmed the death sentence. Before the
Supreme Court of U.S.A. the constitutional validity of the
imposition of death penalty for the crime of murder under
the Florida statutes was challenged on the same ground as in
Gregg v. Georgia. The Supreme Court of U.S.A. in both the
aforesaid cases negatived the challenge to the statutes and
upheld their validity.

It may be recalled that in Furman, that Court had held
that if clear, definite and articulate standards channeling
the sentencing discretion for imposition of the death
penalty are not laid down in a statute, it would violate the
Eighth and Fourteenth Amendments. It may be noted that the
aggravating circumstance No. (7) is couched in a very wide
and elastic language. The expressions "outrageously or
wantonly vile", "horrible or inhuman" employed therein are
of the widest amplitude and give this aggravating
circumstance the character of an omnibus clause. Likewise,
in the Florida statute, the scope of the words "especially
heinous, atrocious and cruel" was equally large and
imprecise.

It can be seriously questioned whether these extremely
elastic standards really exclude the uncontrolled exercise
of sentencing discretion so as to meet the requirements of
Furman.

In Gregg v. Georgia, the petitioner attacked the
seventh statutory aggravating circumstance which authorises
imposition of the death penalty if the murder was
"outrageously, or wantonly vile, horrible or inhuman" on the
ground that it was so broad that capital punishment could be
imposed by its application in any murder case. Stewart, J.,
speaking for himself and for Powell and Stevens, JJ., got
over this attack, in three ways:

Firstly, by reading down the concerns expressed in
Furman. In this connection, Stewart, J. said, all that
Furman mandates is that discretion in so grave a matter must
be suitably directed "so as to minimize the risk of wholly
arbitrary and capricious action." This was, if we may say so
with respect, an admission of the fact that a considerable
range of sentencing discretion has perforce to be left with
the sentencing body to be exercised by it according to its
own good sense and reason, and that no standards howsoever
meticulously drafted can totally exclude scope for arbitrary
and capricious action.

The second reason given to parry this attack was of a
general nature. It was observed:

"As a general proposition these concerns
(expressed in Furman) are best met by a system that
provides for a bifurcated proceeding at which the
sentencing authority is apprised of the information
relevant to the imposition of sentence and provided
with standards to guide its use of the information."

The third course adopted to foil the attack was:

"It is, of course, arguable that any murder
involves depravity of mind or an aggravated battery.
But this language need not be construed in this way,
and there is no reason to assume that the Supreme Court
of Georgia will adopt such an open-ended construction,"
White, J. with whom the Chief Justice and Rehnquist, J.
joined, negatived the change of these standards being vague
and incomplete, with these observations:

"The argument is considerably overstated The
Georgia Legislature has plainly made an effort to guide
the jury in the exercise of its discretion, while at
the same time permitting the jury to dispense mercy on
the basis of factors too intangible to write into a
statute, and I cannot accept the naked assertion that
the effort is bound to fail. As the types of murders
for which the death penalty may be imposed became more
narrowly defined and are limited to those which are
particularly serious or for which the death penalty is
particularly appropriate as they are in Georgia by
reasons of the aggrvating-circumstance requirement, it
becomes reasonable to expect that Georgia's current
system would escape the infirmities which invalidated
its previous system under Furman. Indeed, if the
Georgia Supreme Court properly performs the task
assigned to it under the Georgia statutes, death
sentences imposed wantonly or freakishly for any given
category of crime will be set aside."

Similarly, in Proffit v. Florida, it was contended that
the enumerated aggravating and mitigating circumstances in
the Florida statute are so vague and so broad that virtually
"any capital defendant becomes a candidate for the death
penalty". In particular, the petitioner attacked the eighth
and third statutory aggravating circumstances which
authorise the death penalty to be imposed if the crime is
"especially heinous, atrocious, or cruel" or if "the
defendant knowingly created a great risk of death to many
persons".

Agreeing with the Supreme Court of Florida, the Supreme
Court of U.S.A. recognised that "while it is arguable that
all killing are atrocious, still we believe that the
Legislature intended something especially heinous,
atrocious, of cruel" when it authorised the death penalty
for first-degree murder. As a consequence, the Court has
indicated that the eighth statutory provision is directed
only at "the conscienceless or pitiless crime which is
unnecessarily tortuous to the victim".
It appears to us that in Gregg v. Georgia and the
companion cases, the Supreme Court of U.S.A. was obliged to
read down the requirements of Furman and to accept these
broadly worded, looseended and not-all-inclusive 'standards'
because in the area of sentencing discretion, if it was to
retain its judicial character, exhaustive standardisation or
perfect regulation was neither feasible nor desirable.

Moreover, over-standardisation of the sentencing
process tends to defeat its very purpose, and may actually
produce opposite results.

Messinger and Bittner's Criminology Year Book (ibid)
Albert W. Alcherler's article at page 421 highlights this
danger, by taking, inter alia, the example of the guided-
discretion capital punishment statutes favoured by the
Supreme Court in Gregg v. Georgia and its companion cases,
as follows:

A defendant convicted of capital murder might wish
to make the following speech to the jury about to
consider whether capital punishment should be imposed:

"I am deeply sorry for my crime which I recognize
was about as bad as any that can be imagined. I did, in
fact, go to the police station shortly after the
killing to surrender and make a full confession.
Although I have done some terrible things in my life
you may wish to know, before deciding whether I should
live or die, that I have also done some good. I once
risked my life in combat to save five comrades-an
action for which I was awarded the Silver Star-and for
the last 10 years I have personally cared for my
invalid mother while supporting 5 younger brothers and
sisters.

"The mitigating factors listed in today's capital
punishment statutes are sometimes quite general, but
none that I have seen in any statute would permit a
jury to consider any of the circumstances mentioned in
this defendant's speech (or, for that matter any other
evidence of pre-crime virtue or past-crime remorse).
Apparently the Florida statute's upheld in Proffitt v.
Florida would not; yet the Supreme Court plurality,
seemingly oblivious to the
statutes limitations, declared in a companion case, 'A
jury must be allowed to consider on the basis of all
relevant evidence not only why a death sentence should
be imposed, but also why it should not be imposed."

(Jurek v.Texas.(1)
Critically examined, it is clear that the decisions in
Gregg v.Georgia and its companion cases demonstrate the
truth of what we have said earlier, that it is neither
practicable nor desirable to imprison the sentencing
discretion of a judge or jury in the straitjacket of
exhaustive and rigid standards, Nevertheless, these
decisions do show that it is not impossible to lay down
broad guidelines as distinguished from ironcased standards,
which will minimise the risk of arbitrary imposition of
death penalty for murder and some other offences under the
Penal Code.

This takes us to the question of indicating the broad
criteria which should guide the Courts in the matter of
sentencing a person convicted of murder under Section 302,
Penal Code. Before we embark on this task, it will be proper
to remind ourselves, again that "while we have an obligation
to ensure that the constitutional bounds are not over-
reached, we may not act as judges as we might as
legislatures."(2)
In Jagmohan, this Court had held that this sentencing
discretion is to be exercised judicially on well-recognised
principles, after balancing all the aggravating and
mitigating circumstances of the crime. By "well-recognised
principles" the Court obviously meant the principles
crystallised by judicial decisions illustrating as to what
were regarded as aggravating or mitigating circumstances in
those eases. The legislative changes since Jagmohan-as we
have discussed already-do not have the effect of abrogating
or nullifying those principles. The only effect is that the
application of those principles is now to be guided by the
paramount beacons of legislative policy discernible from
Sections 354 (3) and 235 (2), namely: (1) The extreme
penalty can be inflicted only in gravest cases of extreme
culpability; (2) In making choice of the sentence, in
addition to the circumstances of the offence, due regard
must be paid to the circumstances of the offences, also.
__________________________
(1) 428 US 262, 271(1976).

(2) Per Stewart. J. in Gregg. v. Georgia.
We will first notice some of the aggravating
circumstances which, in the absence of any mitigating
circumstances, have been regarded as an indication for
imposition of the extreme penalty.

Pre-planned, calculated, cold-blooded murder has always
been regarded as one of an aggravated kind. In Jagmohan, it
was reiterated by this Court that if a murder is
"diabolically conceived and cruelly executed", it would
justify the imposition of the death penalty on the murderer.
The same principle was substantially reiterated by V.R.
Krishna Iyer, J., speaking for the Bench, in Ediga Anamma,
in these terms:

"The weapons used and 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."

It may be noted that this indicator for imposing the
death sentence was crystallised in that case after paying
due regard to the shift in legislative policy embodied in

Section 354(3)
of the Code of Criminal Procedure, 1973,
although on the date of that decision (February 11, 1974),
this provision had not come into force. In Paras Ram's case,
also, to which a reference has been made earlier, it was
emphatically stated that a person who in a fit of anti-
social piety commits "blood-curdling butchery" of his child,
fully deserves to be punished with death. In Rajendra
Prasad, however, the majority (of 2:1) has completely
reversed the view that had been taken in Ediga Anamma,
regarding the application of Section 354(3) on this point.
According to it, after the enactment of Section 354(3)
'murder most foul' is not the test. The shocking nature of
the crime or the number of murders committed is also not the
criterion. It was said that the focus has now completely
shifted from the crime to the criminal. "Special reasons"

necessary for imposing death penalty "must relate not to the
crime as such but to the criminal".

With great respect, we find ourselves unable to agree
to this enunciation. As we read Sections 354(3) and 235(2)
and other related provisions of the Code of 1973, it is
quite clear to us that for making the choice of punishment
or for ascertaining the existence or absence of "special
reasons" in that context, the Court must pay due regard both
to the crime and the criminal. What is the relative weight
to be given to the aggravating and mitigating factors,
depends on the facts and circumstances of the particular
case. More often than not, these two aspects are so
intertwined that it is difficult to give a separate
treatment to each of them. This is so because 'style is the
man'. In many cases, the extremely cruel or beastly manner
of the commission of murder is itself a demonstrated index
of the depraved character of the perpetrator. That is why,
it is not desirable to consider the circumstances of the
crime and the circumstances of the criminal in two separate
water-tight compartments. In a sense, to kill is to be cruel
and, therefore, all murders are cruel. But such cruelty may
vary in its degree of culpability. And it is only when the
culpability assumes the proportion of extreme depravity that
"special reasons" can legitimately be said to exist.

Drawing upon the penal statutes of the States in U.S.A.
framed after Furman v. Georgia, in general, and clauses
(2)(a), (b), (c) and (d) of the
Indian Penal Code

(Amendment) Bill passed in 1978 by the Rajya Sabha, in
particular, Dr. Chitale has suggested these "aggravating
circumstances".

"Aggravating circumstances: A Court may, however,
in the following cases impose the penalty of death in
its discretion:

(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; or

(ii) in consequence of anything done or attempted
to be done by such member or 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 his 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
and Section 129 of the
said Code."

Stated broadly, there can be no objection to the
acceptance of these indicators but as we have indicated
already, we would prefer not to fetter judicial discretion
by attempting to make an exhaustive enumeration one way or
the other.

In Rajendra Prasad, the majority said: "It is
constitutionally permissible to swing a criminal out of
corporeal existence only if the security of State and
society, public order and the interests of the general
public compel that course as provided in
Article 19(2)
to
(6)." Our objection is only to the word "only". While it may
be conceded that a murder which directly threatens, or has
an extreme potentiality to harm or endanger the security of
State and society, public order and the interests of the
general public, may provide "special reasons" to justify the
imposition of the extreme penalty on the person convicted of
such a heinous murder, it is not possible to agree that
imposition of death penalty on murderers who do not fall
within this narrow category is constitutionally
impermissible. We have discussed and held above that the
impugned provisions in Section 302, Penal Code, being
reasonable and in the general public interest, do not offend

Article 19
, or its 'ethos'; nor do they in any manner
violate
Articles 21
and
14.
All the reasons given by us for
upholding the validity of Section 302, Penal Code, fully
apply to the case of
Section 354(3)
, Code of Criminal
Procedure, also. The same criticism applies to the view
taken in
Bishnu Deo Shaw v. State of West Bengal
, (1) which
follows the dictum in Rajendra Prasad (ibid).

In several countries which have retained death penalty,
preplanned murder for monetary gain, or by an assassin hired
for
___________________
(1) [1979] S.C.C. 714.
monetary reward is, also, considered a capital offence of
the first-degree which, in the absence of any ameliorating
circumstances, is punishable with death. Such rigid
categorisation would dangerously overlap the domain of
legislative policy. It may necessitate, as it were, a
redefinition of 'murder' or its further classification.
Then, in some decisions, murder by fire-arm, or an automatic
projectile or bomb, or like weapon, the use of which creates
a high simultaneous risk of death or injury to more than one
person, has also been treated as an aggravated type of
offence. No exhaustive enumeration of aggravating
circumstances is possible. But this much can be said that in
order to qualify for inclusion in the category of
"aggravating circumstances" which may form the basis of
'special reasons' in Section 354(3), circumstances found on
the facts of a particular case, must evidence aggravation of
an abnormal or special degree.

Dr. Chitaley has suggested these mitigating factors:

"Mitigating circumstances: In the exercise of its
discretion in the above cases, the Court shall take
into account the following circumstances:

(1) That the offence was committed under the influence
of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or
old, he shall not be sentenced to death.
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a
continuing threat to society.

(4) The probability that the accused can be reformed
and rehabilitated. The State shall by evidence
prove that the accused does not satisfy the
conditions 3 and 4 above.

(5) That in the facts and circumstances of the case
the accused believed that he was morally justified
in committing the offence.

(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that he
was mentally defective and that the said defect
impaired his capacity to appreciate the
criminality of his conduct."

We will do no more than to say that these are
undoubtedly relevant circumstances and must be given great
weight in the determination of sentence. Some of these
factors like extreme youth can instead be of compelling
importance. In several States of India, there are in force
special enactments, according to which a 'child', that is,
'a person who at the date of murder was less than 16 years
of age', cannot be tried, convicted and sentenced to death
or imprisonment for life for murder, nor dealt with
according to the same procedure as an adult. The special
Acts provide for a reformatory procedure for such juvenile
offenders or children.

According to some Indian decisions, the post-murder
remorse, penitance or repentence by the murderer is not a
factor which may induce the Court to pass the lesser penalty
(e.g. Mominaddi Sardar). But those decisions can no longer
be held to be good law in views of the current penological
trends and the sentencing policy outlined in Section 235(2)
and 354(3). We have already extracted the view of A.W.
Alchuler in Cr. Y.E. by Messinger and Bittner (ibid), which
are in point.

There are numerous other circumstances justifying the
passing of the lighter sentence; as there are countervailing
circumstances of aggravation. "We cannot obviously feed into
a judicial computer all such situations since they are
astrological imponderables in an imperfect and undulating
society." Nonetheless, it cannot be overemphasised that the
scope and concept of mitigating factors in the area of death
penalty must receive a liberal and expansive construction by
the courts in accord with the sentencing policy writ large
in Section 354(3). Judges should never be blood-thirsty.
Hedging of murderers has never been too good for them. Facts
and figures, albeit incomplete, furnished by the Union of
India, show that in the past, Courts have inflicted the
extreme penalty with extreme infrequency-a fact which
attests to the caution and compassion which they have always
brought to bear on the exercise of their sentencing
discretion in so grave a matter. It is, therefore,
imperative to voice the concern that courts, aided by the
broad illustrative guidelines
indicated by us, will discharge the onerous function with
evermore scrupulous care and humane concern, directed along
the highroad of legislative policy outlined in Section
354(3), viz, that for persons convicted of murder, life
imprisonment is the rule and death sentence an exception. A
real and abiding concern for the dignity of human life
postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in the
rarest of rare cases when the alternative option is
unquestionably foreclosed.

For all the foregoing reasons, we reject the challenge
to the constitutionality of the impugned provisions
contained in Sections 302, Penal Code, and 354(3) of the

Code of Criminal Procedure
, 1973.

The writ petitions and the connected petitions can now
be heard and disposed of, on their individual merits, in the
light of the broad guidelines and principles enunciated in
this judgment.

BHAGWATI, J. These writ petitions challenge the
constitutional validity of
Section 302
of the Indian Penal
Code read with Section 354, sub-section (3) of the
Code of
Criminal Procedure
in so far as it provides death sentence
as an alternative punishment for the offence of murder.
There are several grounds on which the constitutional
validity of the death penalty provided in
Section 302
of the
Indian Penal Code read with section 354 sub-section (3) of
the
Code of Criminal Procedure
is assailed before us, but it
is not necessary to set them out at this stage, for I
propose to deal with them when I examine the arguments
advanced on behalf of the parties. Suffice it to state for
the present that I find, considerable force in some of these
grounds and in my view, the constitutional validity of the
death penalty provided as an alternative punishment in

section 302
of the Indian Penal Code read with section 354
sub-section (3) of the
Code of Criminal Procedure
cannot be
sustained. I am conscious that my learned brethren on the
Bench who constitute the majority have taken a different
view and upheld the constitutional validity of the death
penalty but, with the greatest respect to them and in all
humility, I cannot persuade myself to concur with the view
taken by them. Mine is unfortunately a solitary dissent and
it is therefore, with a certain amount of hesitation that I
speak but my initial diffidence is overcome by my deep and
abiding faith in the dignity of man and worth of the human
person and passionate
conviction about the true spiritual nature and dimension of
man. I agree with Bernard Shaw that "Criminals do not die by
the hands of the law. They die by the hands of other men.
Assassination on the scaffold is the worst form of
assassination because there it is invested with the approval
of the society.....Murder and capital punishment are not
opposites that cancel one another but similars that breed
their kind." It was the Father of the nation who said years
ago, reaffirming what Prince Satyavan said on capital
punishment in Shanti Parva of Mahabharata that "Destruction
of individuals can never be a virtuous act" and this
sentiment has been echoed by many eminent men such as
Leonardo Da Vinci, John Bright, Victor Hugo and Berdyaev. To
quote again from Bernard Shaw from Act IV of his play
"Caesar and Cleopatra:

"And so to the end of history, murder shall breed
murder, always in the name of right and honour and
peace, until the Gods are tired of blood and-create a
race that can understand."

I share this sentiment because I regard men as an embodiment
of divinity and I am therefore morally against death
penalty. But my dissent is based not upon any ground of
morality or ethics but is founded on constitutional issues,
for as I shall presently show, death penalty does not serve
any social purpose or advance any constitutional value and
is totally arbitrary and unreasonable so as to be violative
of
Articles 14
, 19
and
of the Constitution.

Before I proceed to consider the various constitutional
issues arising out of the challenge to the validity of the
death penalty, I must deal with a preliminary objection
raised on behalf of the respondents against our competence
to entertain this challenge. The learned counsel appearing
on behalf of the respondents urged that the question of
constitutional validity of the death penalty stood concluded
against the petitioners by the decision of a constitution
bench of five Judges of this Court in
Jagmohan v. State of
U.P.
(1) and it could not therefore be allowed to be
reagitated before this Bench consisting of the same number
of Judges.

This Bench, contended the respondents, was bound
by the decision in Jagmohan's case(supra) and the same
issue, once decided in
Jagmohan
's case (supra), could not be
raised again and reconsidered by this Bench. Now it is true
that
______________
(1) AIR 1973 SC 947.
the question of constitutional validity of death penalty was
raised in
Jagmohan
's case (supra) and this Court by a
unanimous judgment held it to be constitutionally valid and,
therefore, ordinarily, on the principle of stare decisis, we
would hold ourselves bound by the view taken
in that case

and resist any attempt at reconsideration of the same issue.
But there are several weighty considerations which compel us
to depart from this precedential rule in the present case.
It may be pointed out that the rule of adherence to
precedence is not a rigid and inflexible rule of law but it
is a rule of practice adopted by the courts for the purpose
of ensuring uniformity and stability in the law. Otherwise,
every Judge will decide an issue according to his own view
and lay down a rule according to his own perception and
there will be no certainty and predictability in the law,
leading to chaos and confusion and in the process,
destroying the rule of law. The labour of the judges would
also, as pointed out by Cardozo J. in his lectures of
"Nature of Judicial Process" increase" almost to the
breaking point if every past decision could be reopened in
every case and one could not lay one's own course of bricks
on the secure foundation of the courses laid by others who
had gone before him." But this rule of adherence to
precedents, though a necessary tool in what Maitland called
"the legal smithy", is only a useful servant and cannot be
allowed to turn into a tyrannous master.
We would do well to
recall what Brandies J. said in his dissenting judgment in
State of Washington v. Dawson and company,(1) namely; "Stare
decisis is ordinarily a wise rule of action. But it is not a
universal and inexorable command." If the Rule of stare
decisis were followed blindly and mechanically, it would
dwarf and stultify the growth of the law and affect its
capacity to adjust itself to the changing needs of the
society. That is why Cardozo pointed out in his New York
State Bar Address:

"That was very well for a time, but now at last
the precedents have turned upon us and are engulfing
and annihilating us-engulfing and annihilating the very
devotees that worshipped at their shrine. So the air is
full of new cults that disavow the ancient faiths. Some
of them tell us that instead of seeking certainty in
the word, the outward sign, we are to seek for
something deeper, a certainty of ends and aims. Some of
them tell us that certainty is merely relative and
temporary, a writing on the sands to
_________
(1) 264 US 646 : 68 Lawyers Edu. 219
be effected by the advancing tides. Some of them even
go so far as to adjure us to give over the vain quest,
to purge ourselves of these yearnings for an
unattainable ideal, and to be content with an
empiricism that is untroubled by strivings for the
absolute. With all their diversities of form and
doctrine, they are at one at least in their emphasis
upon those aspects of truth that are fundamental and
ultimate. They exemplify the method approach, the
attitude and outlook, the concern about the substance
of things, which in all its phases and disguises is the
essence of philosophy."

We must therefore rid stare decisis of something of its
petrifying rigidity and warn ourselves with Cardozo that "in
many instances the principles and rules and concepts of our
own creation are merely apercus and glimpses of reality" and
remind oursevels "of the need of reformulating them or at
times abandoning them altogether when they stand condemned
as mischievous in the social consciousness of the
hour,...the social consciousness which it is our business as
Judges to interpret as best as we can." The question at
issue in the present writ petitions is one of momentous
significance namely, whether the state can take the life of
an individual under the cover of judicial process and
whether such an act of killing by the State is in accord
with the constitutional norms and values and if, on an issue
like this, a Judge feels strongly that it is not competent
to the State to extinguish the flame of life in an
individual by employing the instrumentality of the judicial
process, it is his bounden duty, in all conscience, to
express his dissent, even if such killing by the State is
legitimized by a previous decision of the court. There are
certain issues which transcend technical considerations of
stare decisis and if such an issue is brought before the
court, it would be nothing short of abdication of its
constitutional duty for the court to consider such issue by
taking refuge under the doctrine of stare decisis. The court
may refuse to entertain such an issue like the
constitutional validity of death penalty because it is
satisfied that the previous decision is correct but it
cannot decline to consider it on the ground that it is
barred by the rule of adherence to precedents. Moreover, in
the present case, there are two other supervening
circumstances which justify, nay compel, reconsideration of
the decision in
Jagmohan
's case (supra). The first is the
introduction of the new
Code of Criminal Procedure
in 1973
which by sec-
tion 354 sub-section (3) has made life sentence the rule in
case of offences punishable with death or in the alternative
imprisonment for life and provided for imposition of
sentence of death only in exceptional cases for special
reasons. I shall presently refer to this section enacted in
the new
Code of Criminal Procedure
and show how, in view of
that provision, the imposition of death penalty has become
still more indefensible from the constitutional point of
view. But the more important circumstance which has
supervened since the decision in
Jagmohan
's case (supra) is
the new dimension of
Articles 14
and
unfolded by this
Court in
Maneka Gandhi v. Union of India
.(1) This new
dimension of
Articles 14
and
renders the death penalty
provided in
section 302
of the Indian Penal Code read with

sec. 354 (3)
of the Code of Criminal Procedure vulnerable to
attack on a ground not available at the time when Jagmohan's
case (supra) was decided. Furthermore, it may also be noted,
and this too is a circumstance not entirely without
significance, that since Jagmohan's case (supra) was
decided, India has ratified two international instruments on
human rights and particularly the International Convenant on
Civil and Political Rights.

We cannot therefore consider
ourselves bound by the view taken in
Jagmohan
's case (supra)
and I must proceed to consider the issue as regards the
constitutional validity of death penalty afresh, without
being in any manner inhibited by the decision in Jagmohan's
case (supra).

It must be realised that the question of constitutional
validity of death penalty is not just a simple question of
application of constitutional standards by adopting a
mechanistic approach. It is a difficult problem of
constitutional interpretation to which it is not possible to
give an objectively correct legal anwer. It is not a mere
legalistic problem which can be answered definitively by the
application of logical reasoning but it is a problem which
raises profound social and moral issues and the answer must
therefore necessarily depend on the judicial philosophy of
the Judge. This would be so in case of any problem of
constitutional interpretation but much more so would it be
in a case like the present where the constitutional
conundrum is enmeshed in complex social and moral issues
defying a formalistic judicial attitude. That is the reason
why in some countries like the United States and Canada
where
_________________
(1) [1978] 2 SCR 663.
there is power of judicial review, there has been judicial
disagreement on the constitutionality of death penalty. On
an issue like this, as pointed out by David Pannick in his
book on "Judicial Review of the Death Penalty" judicial
conclusions emanate from the judicial philosophy of those
who sit in judgment and not from the language of the
Constitution." But even so, in their effort to resolve such
an issue of great constitutional significance, the Judges
must take care to see that they are guided by "objective
factors to the maximum possible extent." The culture and
ethos of the nation as gathered from its history, its
tradition and its literature would clearly be relevant
factors in adjudging the constitutionality of death penalty
and so would the ideals and values embodied in the
Constitution which lays down the basic frame-work of the
social and political structure of the country, and which
sets out the objectives and goals to be pursued by the
people in a common endeavour to secure happiness and welfare
of every member of the society. So also standards or norms
set by International organisations and bodies have relevance
in determining the constitutional validity of death penalty
and equally important in construing and applying the
equivocal formulae of the Constitution would be the "wealth
of non-legal learning and experience that encircles and
illuminates" the topic of death penalty. "Judicial
dispensers", said Krishna Iyer, J. in
Dalbir Singh and
Others v. State of Punjab
(1) "do not behave like cavemen but
breathe the fresh air of finer culture." There is no reason
why, in adjudicating upon the constitutional validity of
death penalty. Judges should not obtain assistance from the
writings of men like Dickens, Tolstoy, Dostoyevsky, Koestter
and Camus or from the investigations of social scientists or
moral philosophers in deciding the circumstances in which
and the reasons why the death penalty could be seen as
arbitrary or a denial of equal protection. It is necessary
to bear in mind the wise and felicitous words of Judge
Learned Hand in his "Spirit of Liberty" that while passing
on question of constitutional interpretation, it is as
important to a Judge:

".....to have atleast a bowing acquaintance with
Acton and Maitland. With Thucydides, Gibbon and
Carlyle, with Homer, Dante Shakespeare and Milton, with
Machiavelli, Montaigne and Rabelais, with Plato, Bacon,
Hume
and Kant, as with the books which have been
specifically written on the subject. For in such
matters everything turns upon the spirit in which he
approaches the question before him. The words he must
construe are empty vessels into which he can pour
nearly anything he will. Men do not gather figs of
thistles, nor supply institutions from judges whose
outlook is limited by parish or class. They must be
aware that there are before them more than verbal
problems; more than final solutions cast in
generalisations of universal applicability."

Constitutional law raises, in a legal context, problems of
economic, social, moral and political theory and practice to
which non-lawyers have much to contribute. Non-lawyers have
not reached unanimity on the answers to the problems posed;
nor will they ever do so, But when judges are confronted by
issues to which there is no legal answer, there is no reason
(other than a desire to maintain a fiction that the law
provides the answer) for judicial discretion to be exercised
in a vacuum, immune from non-legal learning and extra-legal
dispute. "Quotations from noble minds are not for decoration
(in hard constitutional cases) but for adaptation within the
framework of the law." Vide: David Pannick on 'Judicial
Review of the Death Penalty.' The Judges must also consider
while deciding an issue of constitutional adjudication as to
what would be the moral, social and economic consequences of
a decision either way. The consequences of course do not
alter the meaning of a constitutional or statutory provision
but they certainly help to fix its meaning. With these
prefatory observations I shall now proceed to consider the
question of constitutional validity of death penalty.

I shall presently refer to the constitutional
provisions which bear on the question of constitutionality
of death penalty, but before I do so, it would be more
logical if I first examine what is the international trend
of opinion in regard to death penalty. There are quite a
large number of countries which have abolished death penalty
de jure or in any event, de facto The Addendum to the Report
of the Amnesty International on "The Death Penalty" points
out that as on 30th May 1979, the following countries have
abolished death penalty for all offences : Australia,
Brazil, Colombia, Costa Rica, Denmark, Dominican Republic,
Ecuador, Fiji, Finland, Federal Republic of Germany,
Honduras, Iceland, Luxembourg, Norway, Portugal, Sweden,
Uruguay and Venezuela, and according
to this Report, Canada, Italy, Malta, Netherlands, Panama,
Peru, Spain and Switzerland have abolished death penalty in
time of peace, but retained it for specific offences
committed in time of war. The Report also states that
Algeria, Belgium, Greece, Guyana, Ivory Coast, Seychelles
and Upper Volta have retained the death penalty on their
statute book but they did not conduct any executions for the
period from 1973 to 30th May 1979. Even in the United States
of America there are several States which have abolished
death penalty and so also in the United Kingdom, death
penalty stands abolished from the year 1965 save and except
for offences of treason and certain forms of piracy and
offences committed by members of the armed forces during war
time. It may be pointed out that an attempt was made in the
United Kingdom in December 1975 to reintroduce death penalty
for terrorist offences involving murder but it was defeated
in the House of Commons and once again a similar motion
moved by a conservative member of Parliament that "the
sentence of capital punishment should again be available to
the courts" was defeated in the House of Commons in a free
vote on 19th July 1979. So also death penalty has been
abolished either formally or in practice in several other
countries such as Argentina, Bolivia, most of the federal
States of Mexico and Nicaragua, Israel, Turkey and Australia
do not use the death penalty in practice. It will thus be
seen that there is a definite trend in most of the countries
of Europe and America towards abolition of death penalty.

It is significant to note that the United Nations has
also taken great interest in the abolition of capital
punishment. In the Charter of the United Nations signed in
1945, the founding States emphasized the value of
individuals's life, stating their will to "achieve
international co-operation...in promoting and encouraging
respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language or
religion." Though the San Francisco Conference did not
address itself to the issue of death penalty specifically,
the provisions of the charter paved the way for further
action by United Nations bodies in the field of human
rights, by establishing a Commission on Human Rights and, in
effect, charged that body with formulating an International
Bill of Human Rights. Meanwhile the Universal Declaration of
Human Rights was adopted by the General Assembly in its
Resolution 217 A (III) of 10 December 1948.
Articles 3
and
of the Declaration provided:
3. "Everyone has the right to life, liberty and
security of person."

5. "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.

The United Nations' position on the question of death
penalty was expected to be stated more specifically in the
International Covenant on Civil and Political Rights, the
drafting of which had been under way since the first session
of the Commission on Human Rights in 1947. But during the 11
year period of drafting of the relevant provision of the
Covenant, two main approaches to the issue of capital
punishment became evident: one stressed the need for barring
the death penalty and the second placed emphasis on
resstricting its application to certain cases. The
proponents of the first position suggested either the total
abolition of the death penalty or its abolition in time of
peace or for political offences. This approach was however
regarded as unfeasible, since many countries, including
abolitionist ones, felt that the provision for an outright
ban on the death penalty would prevent some States from
ratifying the Covenant, but at the same time, it was
insisted by many countries that the Covenant should not
create the impression of supporting or perpetuating death
penalty and hence a provision to this effect should be
included. The result was that the second approach stressing
everyone's right to life and emphasizing the need for
restricting the application of capital punishment with a
view to eventual abolition of the death penalty, won greater
support and
Article 6
of the Covenant as finally adopted by
the General Assembly in its resolution 2000(XXX) of 16
December 1966 provided as follows :

1. Every human being has the inherent right to life.

This right shall be protected by law. No one shall
be arbitrarily deprived of his life.

2. In countries which have not abolished the death
penalty, sentence of death may be imposed only for
the most serious crimes in accordance with the law
in force at the time of the commission of the
crime and not contrary to the provisions of the
present Covenant and to the Convention on the
Prevention and Punishment of the Crime of
Genocide. This
penalty can only be carried out pursuant to a
final judgment rendered by a competent court.

3. When deprivation of life constitutes the crime of
genocide, it is understood, that nothing in this
article shall authorise any State Party to the
present Covenant to derogate in any way from any
obligatlon assumed under the provisions of the
Convention on the Prevention and Punishment of the
Crime of Genocide.

4. Anyone sentenced to death shall have the right to
seek, pardon or commutation of the sentence.
Amnesty pardon or commutation of the sentence of
death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes
committed by persons below eighteen years of age
and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay
or prevent the abolition of capital punishment by
any State Party to the present Covennt."

Article 7
of the Covenant corresponding to
Article 5
of the
Universal Declaration of Human Rights reaffirmed that no one
shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.

So deep and profound was the United Nation's concern
with the issue of death penalty that the General Assembly in
its resolotion 1396 (XIV) of 20 November, 1959 invited the
Economic and Social Council to initiate study of the
question of capital punishment, of the laws and practices
relating thereto, and of the effects of capital punishment
and the abolition thereof on the rate of criminality.
Pursuant to this resolution, the Economic and Social Council
activised itself on this issue and at its instance a
substantive report report was prepared by the noted French
jurist Marc Ancel. The report entitled "Capital Punishment"

was the first major survey of the problem from an
international stand point on the deterrent aspect of the
death penalty and in its third chapter, it contained a
cautious statement "that the deterrent effect of the death
penalty is, to say the least, not demons-
trated". This view had been expressed not only by
abolitionists countries in their replies to the
questionaires but also by some retentionist countries. The
Ancel report alongwith the Report of the ad hoc Advisory
Committee of Experts on the Prevention of Crime and the
Treatment of Offenders which examined it in January 1963 was
presented to the Economic and Social Council at its 35th
Session when its Resolution 934 (XXXV) of 9th April 1963 was
adopted. By this Resolution the Economic and Social Council
urged member governments inter alia to keep under review the
efficacy of capital punishment as a deterrent to crime in
their countries and to conduct research into the subject and
to remove this punishment from the criminal law concerning
any crime to which it is, in fact, not applied or to which
there is no intention to apply it. This Resolution clearly
shows that there was no evidence supporting the supposed
deterrent effect of the death penalty and that is why the
Economic and Social Council suggested further research on
the topic. Moreover, the urging of the de facto abolitionist
countries by this Resolution to translate the position into
de jure terms constituted an implicit acceptance of the
principle of abolition. The same year, by Resolution 1918
(XVIII) of 5th December 1963, the General Assembly endorsed
this action of the Economic and Social Council and requested
the Economic and Social Council to invite the Commission on
human Rights to study and make recommendations on the Ancel
Report and the comments of the ad hoc Advisory Committee of
Experts. The General Assembly also requested the Secretary
General to present a report on new developments through the
Economic and Social Council. Norval Morris, an American
professor of criminal law and criminology, accordingly
prepared a Report entitled "Capital Punishment; Developments
1961-1965" and amongst other things, this Report pointed out
that there was a steady movement towards legislative
abolition of capital punishment and observed with regard to
the deterrent effect of death penalty, that:

"With respect to the influence of the abolition of
capital punishment upon the incidence of murder, all of
the available data suggest that where the murder rate
is increasing, abolition does not appear to hasten the
increase where the rate is decreasing abolition does
not appear to interrupt the decrease; where the rate is
stable, the presence or absence of capital punishment
does not appear to affect it."
The Commission on Human Rights considered this Report and
adopted a draft General Assembly Resolution which was
submitted by the Economic and Social Council to the General
Assembly and on 26th November 1968, the General Assembly
adopted this draft with certain modifications as its
Resolution 2393 (XXIII) inviting member governments to take
various measures and requesting the Secretary General to
invite member governments "to inform him of their present
attitude to possible further restricting the use of the
death penalty or to its total abolition" and to submit a
report to the Economic and Social Council. The Secretary
General accordingly submitted his report to the Economic and
Social Council at its 50th session in 1971. This Report
contained a finding that "most countries are gradually
restricting the number of offences for which the death
penalty is to be applied and a few have totally abolished
capital offences even in war times". The discussion in the
Economic and Social Council led to the adoption of
Resolution 1574 (L) of 20th May 1971 which was reaffirmed by
General Assembly Resolution 2857 (XXVI) of 20th December
1971. This latter resolution clearly affirmed that:

"In order to guarantee fully the right to life,
provided for in
article 3
of the Universal Declaration
of Human Rights, the main objective to be pursued is
that of progressively restricting the number of
offences for which capital punishment may be imposed,
with a view to the desirability of abolishing this
punishment in all countries".

(Emphasais supplied)
In 1973 the Secretary General submitted to the Economic
and Social Council at its 54th session his third report on
capital punishment as requested by the Council and at this
session, the Council adopted Resolution 1745 (LIV) in which,
inter alia, it invited the Secretary General to submit to it
periodic updated reports on capital punishment at five-year
intervals starting from 1975. A fourth report on capital
punishment was accordingly submitted in 1975 and a fifth one
in 1980. Meanwhile the General Assembly at its 32nd Session
adopted Resolution 32/61 on 8th December 1977 and this
Resolution re-affirmed "the desirability of abolishing this"

that is capital "punishment" in all countries.
It will thus be seen that the United Nations has
gradually shifted from the position of a neutral observer
concerned about but not committed on the question of death
penalty, to a position favouring the eventual abolition of
the death penalty. The objective of the United Nations has
been and that is the standard set by the world body that
capital punishment should ultimately be abolished in all
countries. This normative standard set by the world body
must be taken into account in determining whether the death
penalty can be regarded as arbitrary, excessive and
unreasonable so as to be constitutionally invalid.

I will now proceed to consider the relevant provisions
of the Constitution bearing on the question of
constitutional validity of death penalty. It may be pointed
out that our Constitution is a unique document. It is not a
mere pedantic legal text but it embodies certain human
values cherished principles and spiritual norms and
recognises and upholds the dignity of man. It accepts the
individual as the focal point of all development and regards
his material, moral and spiritual development as the chief
concern of its various provisions. It does not treat the
individual as a cog in the mighty all-powerful machine of
the State but places him at the centre of the constitutional
scheme and focuses on the fullest development of his
personality. The Preamble makes it clear that the
Constitution is intended to secure to every citizen social,
economic and political justice and equality of status and
opportunity and to promote fraternity assuring the dignity
of the individual. The Fundamental Rights lay down
limitations on the power of the legislature and the
executive with a view to protecting the citizen and confer
certain basic human rights which are enforceable against the
State in a court of law. The Directive Principles of State
Policy also emphasise the dignity of the individual and the
worth of the human person by obligating the State to take
various measures for the purpose of securing and protecting
a social order in which justice social, economic and
political, shall inform all the institutions of national
life. What is the concept of social and economic justice
which the founding fathers had in mind is also elaborated in
the various Articles setting out the Directive Principles of
State Policy. But all these provisions enacted for the
purpose of ensuring the dignity of the individual and
providing for his material, moral and spiritual development
would be Meaningless and ineffectual unless there is rule of
law to invest them with life and force.
Now if we look at the various constitutional provisions
including the Chapters on Fundamental Rights and Directive
Principles of State Policy, it is clear that the rule of law
permeates the entire fabric of the Constitution and indeed
forms one of its basic features. The rule of law excludes
arbitrariness; its postulate is 'intelligence without
passion' and 'reason freed from desire'. Wherever we find
arbitrariness or unreasonableness there is denial of the
rule of law. That is why Aristotle preferred a government of
laws rather than of men. 'Law', in the context of the rule
of law, does not mean any law enacted by the legislative
authority, howsoever arbitrary or despotic it may be.
Otherwise even under a dictatorship it would be possible to
say that there is rule of law, because every law made by the
dictator howsoever arbitrary and unreasonable has to be
obeyed and every action has to be taken in conformity with
such law. In such a case too even where the political set up
is dictatorial, it is law that governs the relationship
between men and men and between men and the State. But still
it is not rule of law as understood in modern jurisprudence,
because in jurisprudential terms, the law itself in such a
case being an emanation from the absolute will of the
dictator it is in effect and substance the rule of man and
not of law which prevails in such a situation. What is
necessary element of the rule of law is that the law must
not be arbitrary or irrational and it must satisfy the test
of reason and the democratic form of polity seeks to ensure
this element by making the framers of the law accountable to
the people. Of course, in a country like the United Kingdom,
where there is no written constitution imposing fetters on
legislative power and providing for judicial review of
legislation, it may be difficult to hold a law to be invalid
on the ground that it is arbitrary and irrational and hence
violative of an essential element of the rule of law and the
only remedy if at all would be an appeal to the electorate
at the time when a fresh mandate is sought at the election.
But the situation is totally different in a country like
India which has a written Constitution enacting Pundamental
Rights and conferring power on the courts to enforce them
not only against the executive but also against the
legislature. The Fundamental Rights erect a protective
armour for the individual against arbitrary or unreasonable
executive or legislative action.

There are three Fundamental Rights in the Constitution
which are of prime importance and which breathe vitality in
the concept
of the rule of law. They are
Articles 14
, 19
and
which,
in the words of Chandrachud, C.J. in Minverva Mills case(1)
constitute a golden triangle.
It is now settled law as a
result of the decision of this Court in
Maneka Gandhi
's case
(supra) that
Article 14
enacts primarily a guarantee against
arbitrariness and inhibits State action whether legislative
or executive, which suffers from the vice of arbitrariness.

This interpretation placed on
Article 14
by the Court in
Maneka Gandhi's case has opened up a new dimension of that
Article which transcends the classificatory principle. For a
long time in the evolution of the constitutional law of our
country, the courts had construed
Article 14
to mean only
this, namely, that you can classify persons and things for
the application of a law but such classification must be
based on intelligible differentia having rational
relationship to the object sought to be achieved by the law.
But the court pointed out in
Maneka Gandhi
's case that

Article 14
was not to be equated with the principle of
classification. It was primarily a guarantee against
arbitrariness in State action and the doctrine of
classification was evolved only as a subsidiary rule for
testing or determining whether a particular State action was
arbitrary or not. The Court said "Equality is antithetical
to arbitrariness. In fact, equality and arbitrariness are
sworn enemies. One belongs to the rule of law while the
other to the whim and caprice of an absolute monarch. Where
an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and
is, therefore, violative of
Article 14."
The Court thus laid
down that every State action must be non-arbitrary and
reasonable; if it is not, the court would strike it down as
invalid.

This view was reaffirmed by the Court in another
outstanding decision in Ramana Dayaram Shetty International
Airport Authority of India & Ors. There tenders were invited
by the Airport Authority for giving a contract for running a
canteen at the Bombay Airport. The invitation for tender
included a condition that the applicant must have at least 5
years' experience as a registered 2nd class hotelier.
Several persons tendered. One was a person who had
considerable experience in the catering business but he was
not a registered 2nd class hotelier as required by the
condition in the invitation to tender. Yet his tender was
accepted because it was the highest. The contract given to
him was challenged and the court held that the action of the
Airport Authority was illegal. The court pointed out that a
______________________
(1) [1979] 3 SCR 1014.
new form of property consisting of government largesse in
the shape of jobs, cotracts licences, quotas, mineral rights
and other benefits and services was emerging in the social
welfare State that India was and it was necessary to develop
new forms of protection in regard to this new kind of
property.

The court held that in regard to government largesse,
the discretion of the government is not unlimited in that
the government cannot give or withhold largesse in its
arbitrary discretion or at its sweet will. The government
action must be based on standards that are not arbitrary or
irrational. This requirement was spelt out from the
application of
Article 14
as a constitutional requirement,
and it was held that having regard to the constitutional
mandate of
Article 14
, the Airport Authority was not
entitled to act arbitrarily in accepting the tender but was
bound to conform to the standards or norms
laid down by
it.
The Court thus reiterated and reaffirmed its commitment
against arbitrariness in State action.

It can, therefore, now be taken to be well-settled that
if a law is arbitrary or irrational, it would fall foul of

Article 14
and would be liable to be struck down as invalid.
Now a law may contravene
Article 14
because it enacts
provisions which are arbitrary; as for example, they make
discriminatory classification which is not founded on
intelligible differentia having rational relation to the
object sought to be achieved by the law or they arbitrarily
select persons or things for discriminatory treatment. But
there is also another category of cases where without
enactment of specific provisions which are arbitrary, a law
may still offend
Article 14
because it confers discretion on
an authority to select persons or things for application of
the law without laying down any policy or principle to guide
the exercise of such discretion. Where such unguided and
unstructured discretion is conferred on an authority, the
law would be violative of
Article 14
because it would enable
the authority to exercise such discretion arbitrarily and
thus discriminate without reason. Unfettered and uncharted
discretion conferred on any authority, even if it be the
judiciary, throws the door open for arbitrariness, for after
all a judge does not cease to be a human being subject to
human limitations when he puts on the judicial robe and the
nature of the judicial process being what it is, it cannot
be entirely free from judicial subjectivism. Cardozo, J. has
frankly pointed this out in his lectures on "Nature of the
Judicial Process":
"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 chill 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.

This facet of the judicial process has also been emphasized
by Richard B. Brandt in his book on "Judicial Discretion"

where he has said :

"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.

That is why Lord Camden described the discretion of a judge
to be "the law of tyrants; it is always unknown; it is
different in different men; it is casual and depends on
Constitution,Tamper, and Passion. In the best it is often
times Caprice, in the worst it is every Vice, Folly and
Passion to which human Nature is liable." Doe d. Hindson v.
Kersey (1765) at p. 53 of the pamphlet published in London
by J. Wilkes in 1971 entitled "Lord Camden's Genuine
Argument in giving Judgment on the Ejectment between
Hindson, and others against Kersey". Megarry J. also points
out in his delightful book "Miscellany at Law" that
"discretion is indeed a poor substitute for
principles, however, great the Judge". Therefore, where
discretion is conferred on an authority by a statute, the
court always strains to find in the statute the policy or
principle laid down by the legislature for the purpose of
guiding the exercise of such discretion and, as pointed out
by Subba Rao, J. as he then was, the court sometimes even
tries to discover the policy or principle in the crevices of
the statute in order to save the law from the challenge of

Article 14
which would inevitably result in striking down of
the law if the discretion conferred were unguided and
unfettered. But where after the utmost effort and intense
search, no policy or principle to guide the exercise of
discretion can be found, the discretion conferred by the law
would be unguided and unstructured, like a tumultuous river
overflowing its banks and that would render the law open to
attack on ground of arbitrariness under
Article 14.

So also
Article 19
strikes against arbitrary
legislation in so far as such legislation is violative of
one or the other provision of clause (1) of that Article.
Sub-clauses (a) to (g) of clause (1) of
Article 19
enact
various Fundamental freedoms; sub-clause (1) guarantees
freedom of speech and expression, sub-clause (b), freedom to
assemble peacefully and without arms; sub-clause (c),
freedom to form associations or unions; sub-clause (d),
freedom to move freely throughout the territory of India;
sub-clause (e) to reside and settle in any part of the
territory of India and sub-clause (g), freedom to practise
any profession or to carry on any occupation, trade or
business. There was originally sub-clause (f) in clause (1)
of
Article 19
which guaranteed freedom to acquire, hold and
dispose of property but that sub-clause was deleted by the

Constitution (Forty Fourth Amendment) Act
1978. Now the
freedoms guaranteed under these various sub-clauses of
clause (1) of
Article 19
are not absolute freedoms but they
can be restricted by law, provided such law satisfies the
requirement of the applicable provision in one or the other
of clauses (2) to (6) of that Article. The common basic
requirement of the saving provision enacted in clauses (2)
to (6) of
Article 19
is that the restriction imposed by the
law must be reasonable. If, therefore, any law is enacted by
the legislature which violates one or the other provision of
clauses (1) of
Article 19
, it would not be protected by the
saving provision enacted in clauses (2) to (6) of that
Article, if it is arbitrary or irrational, because in that
event the restriction imposed by it would a fortiorari be
unreasonable.
The third Fundamental Right which strikes against
arbitrariness in State action is that embodied in Article

21. This Article is worded in simple language and it
guarantees the right to life and personal liberty in the
following terms.

"21. No person shall be deprived of his life or
personal liberty except according to procedure
established by law."

This Article also came up for interpretation in
Maneka
Gandhi
's case (supra). Two questions arose before the Court

in that case
: one was as to what is the content of the
expression "personal liberty" and the other was as to what
is the meaning of the expression "except according to
procedure established by law". We are not concerned here
with the first question and hence I shall not dwell upon it.
But so far as second question is concerned, it provoked a
decision from the Court which was to mark the beginning of
amost astonishing development of the law. It is with this
decision that the Court burst forth into un-precedented
creative activity and gave to the law a new dimenston and a
new vitality. Until this decision was given, the view held
by this Court was that
Article 21
merely embodied a facet of
the Diceyian concept of the rule of law that no one can be
deprived of his personal liberty by executive action
unsupported by law. It was intended to be no more than a
protection against executive action which had no authority
of law. If there was a law which provided some sort of
procedure, it was, enough to deprive a person of his life or
personal liberty.

Even if, to take an example cited by S.R.
Das, J, in his Judgment in
A.K. Gopalan v. State of
Madras
(1) the law provided that the Bishop of Rochester be
boiled in old, it would be valid under
Article 21.
But in
Maneka Gandhi's case (supra) which marks a watershed in the
history of development of constitutional law in our country,
this Court for the first time took the view that
Article 21

affords protection not only against executive action but
also against legislation and any law which deprives a person
of his life or personal liberty would be invalid unless it
prescribes a procedure for such deprivation which is
reasonable fair and just. The concept of reasonableness, it
was held, runs through the entire fabric of the Constitution
and it is not enough for the law merely to provide some
semblance of a procedure but the procedure for depriving a
___________
(1) [1950] SCR 88.
person of his life or personal liberty must be rasonable,
fair and just. It is for the court to determine whether in a
particular case the procedure is reasonable, fair and just
and if it is not, the court will strike down the law as
invalid. If therefore a law is enacted by the legislature
which deprives a person of the life-and 'life' according to
the decision of this Court in
Francis Coralie Mullen's v.
Administrator, Union Territory of Delhi and Ors.
,(1) would
include not merely physical existence but also the use of
any faculty or limb as also the right to live with human
dignity-or any aspect of his personal liberty, it would
offend against
Article 21
if the procedure prescribed for
such deprivation is arbitrary and unreasonable. The word
'procedure' in
Article 21
is wide enough to cover the entire
process by which deprivation is effected and that would
include not only the adjectival but also the substantive
part of the law. Take for example, a law of preventive
detention which sets out the grounds on which a person may
be preventively detained. If a person is preventively
detained on a ground other than those set out in the law,
the preventive detention would obviously not be according to
the procedure prescribed by the law, because the procedure
set out in the law for preventively detaining a person
prescribes certain specific grounds on which alone a person
can be preventively detained, and if he is detained on any
other ground, it would be violative of
Article 21.
Every
facet of the law which deprives a person of his life or
personal liberty would therefore have to stand the test of
reasonableness, fairness and justness in order to be outside
the inhibition of
Article 21.

It will thus be seen that the rule of law has much
greater vitality under our Constitution that it has in other
countries like the United Kingdom which has no
constitutionally enacted Fundamental Rights. The rule of law
has really three basic and fundamental assumptions one is
that law making must be essentially in the hands of a
democratically elected legislature, subject of course to any
power in the executive in an emergent situation to
promulgate ordinances effective for a short duration while
the legislature is not in session as also to enact delegated
legislation in accordance with the guidelines
laid down by

the legislature; the other is that, even in the hands of a
democratically elected legislature, there should not be
unfettered legislative power, for, as Jefferson said: "Let
no man be trusted with power but tie him down from making
mischief by the
_____________________
(1) [1981] 2 SCR 516.
chains of the Constitution"; and lastly there must be an
independent judicially to protect the citizen against
excesses of executive and legislative power. Fortunately,
whatever uncharitable and irresponsible critics might say
when they find a decision of the court going against the
view held by them, we can confidently assert that we have in
our country all these three elements essential to the rule
of law. It is plain and indisputable that under our
Constitution law cannot be arbitrary or irrational and if it
is, it would be clearly invalid, whether under
Article 14
or

Article 19
or
Article 21
whichever be applicable.

It is in the light of these constitutional provisions
that I must consider whether death penalty provided under

Section 302
of the Indian Penal Code read with section 354
sub-section (3) of the
Code of Criminal Procedure
is
constitutionally valid. Now one thing is certain that the
Constitution does not in so many terms prohibit capital
panishment. In fact, it recognises death sentence as one of
the penalties which may be imposed by law.
Article 21

provides inter alia that no one shall be deprived of his
life except according to procedure established by law and
this clearly postulates that a person may be deprived of his
life in accordance with the procedure prescribed by law or
in other words, law may provide a procedure, which of course
according to the decision of this Court in Maneka Gandhi's
case (supra) must be reasonable, fair and just procedure,
for inflicting death penalty on a person depriving him of
his life. Clause(c) of
Article 72
also recognises the
possibility of a sentence of death being imposed on a person
convicted of an offence inasmuch as it provides that the
President shall have the power to suspend, remit or commute
the sentence of any person who is convicted of an offence
and sentenced to death. It is therefore not possible to
contend that the imposition of death sentence for conviction
of an offence is in all cases forbidden by the Constitution.
But that does not mean that the infliction of death penalty
is blessed by the Constitution or that it has the imprimatur
or seal of approval of the Constitution. The Constitution is
not a transient document but it is meant to endure for a
long time to come and during its life, situations may arise
where death penalty may be found to serve a social purpose
and its prescription may not be liable to be regarded as
arbitrary or unreasonable and therefore to meet such
situations, the Constitution had to make a provision and
this it did in
Article 21
and clause (c) of
Article 72
so
that, even where death penalty is prescribed by any
law and it is otherwise not unconstitutional, it must still
comply with the requirement of
Article 21
and it would be
subject to the clemency power of the President under clause

(c) of
Article 72.
The question would however still remain
whether the prescription of death penalty by any particular
law is violative of any provision of the Constitution and is
therefore rendered unconstitutional. This question has to be
answered in the present case with reference to
section 302

of the Indian Penal Code read with section 354 sub-section
(3) of the
Code of Criminal Procedure
.

Now in order to answer this question it is necessary
first of all to examine the legislative trend in our country
so far as the imposition of death penalty is concerned. A
"brief survey of the trend of legislative endeavours" will,
as pointed out by Krishna Iyer, J. in
Rajendra Prasad v.
State of U.P.
(1) "serve to indicate whether the people's
consciousness has been protected towards narrowing or
widening the scope for infliction of death penalty." If we
look at the legislative history of the relevant provisions
of the
Indian Penal Code
and the
Code of Criminal Procedure

we find that in our country there has been a gradual shift
against the imposition of death penalty. "The legislative
development, through several successive amendments had
shifted the punitive centre of gravity from life taking to
life sentence." Sub-section (5) of
section 367
of the Code
of Criminal Procedure 1898 as it stood prior to its
amendment by Act 26 of 1955 provided :

"If the accused is convicted of an offence
punishable with death, and the court sentences to any
punishment other than death, the court shall in its
judgment state the reasons why sentence of death was
not passed."

This provision laid down that if an accused was convicted of
an offence punishable with death, the imposition of death
sentence was the rule and the awarding of a lesser sentence
was an exception and the court had to state the reasons for
not passing the sentence of death. In other words, the
discretion was directed positively towards death penalty.
But, by the
Amending Act
26 of 1955 which came into force
with effect from 1st January 1956, this provision was
deleted with the result that from and after that date, it
was left to the discretion of the court on the facts of each
case to pass a sen-

__________________
(1) [1979] 3 SCC 646.
tence of death or to award a lesser sentence. Where the
court found in a given case that, on the facts and
circumstances of the case, the death sentence was not called
for or there were extenuating circumstances to justify the
passing of the lesser sentence, the court would award the
lesser sentence and not impose the death penalty. Neither
death penalty nor life sentence was the rule under the law
as it stood after the abolition of sub-section (5) of the
section 367 by the
Amending Act
26 of 1955 and the court was
left "equally free to award either sentence". But then
again, there was a further shift against death penalty by
reason of the abolitionist pressure and when the new
Code of
Criminal Procedure
1973 was enacted, section 354 sub-section
(3) provided ;

"When the conviction is for a sentence 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, special
reasons for such sentence."

The court is now required under this provision to state the
reasons for the sentence awarded and in case of sentence of
death, special reasons are required to be stated. It will
thus be seen that life sentence is now the rule and it is
only in exceptional cases, for special reasons, that death
sentence can be imposed. The legislature has however not
indicated what are the special reasons for which departure
can be made from the normal rule and death penalty may be
inflicted. The legislature has not given any guidance as to
what are those exceptional cases in which, deviating from
the normal rule, death sentence may be imposed. This is left
entirely to the unguided discretion of the court, a feature,
which, in my opinion, has lethal consequences so far as the
constitutionality of death penalty is concerned. But one
thing is clear that through these legislative changes "the
disturbed conscience of the State on the question of legal
threat to life by way of death sentence has sought to
express itself legislatively", the stream of tendency being
towards cautions abolition.

It is also interesting to note that a further
legislative attempt towards restricting and rationalising
death penalty was made in the late seventies. A Bill called

Indian Penal Code
(Amendment) Bill 1972 for amending section
302 was passed by the Rajya Sabha in 1978 and it was pending
in the Lok Sabha at the time when
Rajendra
Prasad
's case was decided and though it ultimately lapsed
with the dissolution of the Lok Sabha, it shows how strongly
were the minds of the elected representatives of the people
agitated against "homicidal exercise of discretion" which is
often an "obsession with retributive justice in disguise".
This Bill sought to narrow drastically the judicial
discretion to impose death penalty and tried to formulate
the guidelines which should control the exercise of judicial
exercise in this punitive area. But unfortunately the Bill
though passed by the Rajya Sabha could not see its way
through the Lok Sabha and was not enacted into law.
Otherwise perhaps the charge against the present section of
302 of the
Indian Penal Code
read with section 354 sub-
section (3) of the
Code of Criminal Procedure
that it does
not indicate any policy or principle to guide the exercise
of judicial discretion in awarding death penalty, would have
been considerably diluted, though even then, I doubt very
much whether that section could have survived the attack
against its constitutionally on the ground that it still
leaves the door open for arbitrary exercise of discretion in
imposing death penalty.

Having traced the legislative history of the relevant
provisions in regard to death penalty, I will now turn my
attention to what great and eminent men have said in regard
to death penalty, for their words serve to bring out in bold
relief the utter barbarity and futility of the death
penalty. Jaiprakash Narain, the great humanist, said, while
speaking on abolition of death penalty ;

"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)
Andrei Sakharov in a message to the Stockholm Conference on
Abolition of death Penalty organised by Amnesty
International in 1978 expressed himself firmly against death
penalty:

"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 influence, 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 also protested against death sentence in an article
"I Cannot be Silent":

"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
we 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 they are to be hung, and they are led to the
gallows."

So also said Victor Hugo in the spirit of the Bishop created
by him in his 'Les Miserables' :

"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, reason is on our side, feeling is on our
side, and experience is on our side."

Mahatma Gandhi also wrote to the same effect in his simple
but inimitable style :

"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."

This Gandhian concept was translated into action with
commendable success in the case of Chambal dacoits who laid
down their arms in response to the call of Vinobha Bhave and
Jaiprakash Narayan. See "Crime and Non-violence" by Vasant
Nargolkar. There is also the recent instance of surrender of
Malkhan Singh, a notorious dacoit of Madhya Pradesh. Have
these dacoits not been reformed ? Have they not been
redeemed and saved ? What social purpose would have been
served by killing them ?

I may also at this stage make a few observations in
regard to the barbarity and cruelty of death penalty, for
the problem of constitutional validity of death penalty
cannot be appreciated in its proper perspective without an
adequate understanding of the true nature of death penalty
and what it involves in terms of human anguish and
suffering. In the first place, death penalty is irrevocable;
it cannot be recalled. It extinguishes the flame of life for
ever and is plainly destructive of the right to life, the
most precious right of all, a right without which enjoyment
of no other rights is possible. It silences for ever a
living being and despatches him to that 'undiscovered
country from whose bourn no traveller returns' nor,
once executed, 'can stored urn or animated bust back to its
mansion call the fleeting breath'. It is by reason of its
cold and cruel finality that death penalty is qualitatively
different from all other forms of punishment. If a person is
sentenced to imprisonment, even if it be for life, and
subsequently it is found that he was innocent and was
wrongly convicted, he can be set free. Of course the
imprisonment that he has suffered till then cannot be undone
and the time he has spent in the prison cannot be given back
to him in specie but he can come back and be restored to
normal life with his honour vindicated if he is found
innocent. But that is not possible where a person has been
wrongly convited and sentencted to death and put out of
existence in pursuance of the sentence of death. In his
case, even if any mistake is subsequently discovered, it
will be too late; in every way and for every purpose it will
be too late, for he cannot be brought back to life. The
execution of the sentence of death in such a case makes
miscarriage of justice irrevocable. On whose conscience will
this death of an innocent man lie ? The State through its
judicial instrumentality would have killed an innocent man.
How is it different from a private murder ? That is why
Lafayatte said : "I shall ask for the abolition of the
penalty of death until I have the infallibility of human
judgment demonstrated me."

It is argued on behalf of the retentionists that having
regard to the elaborate procedural safeguards enacted by the
law in cases involving capital punishment, the possibility
of mistake is more imaginary than real and these procedural
safeguards virtually make conviction of an innocent person
impossible. But I do not think this argument is well
founded. It is not supported by factual data. Hugo Bedau in
his well known book, "The Death Penalty in America" has
individually documented seventy four cases since 1893 in
which it has been responsibly charged and in most of them
proved beyond doubt, that persons were wrongly convicted of
criminal homicide in America. Eight out of these seventy
four, though innocent, were executed. Redin, Gardener, Frank
and others have specifically identified many more additional
cases. These are cases in which it has been possible to show
from discovery of subsequent facts that the convictions were
erroneous and innocent persons were put to death, but there
may be many more cases where by reason of the difficulty of
uncovering the facts after conviction, let alone after
execution, it may not be possible to establish that there
was miscarriage of justice. The jurist Olivecroix, applying
a calculus of probabilities to the chance of judicial error,
concluded as far back
as in 1860 that approximately one innocent man was condemned
out of every 257 cases. The proportion seems low but only in
relation to moderate punishment. In relation to capital
punishment, the proportion is infinitivelly high. When Hugo
wrote that he preferred to call the guillotine Lesurques
(the name of an innocent man guillotined in the Carrier de
Lyon case) he did not mean that every man who was
decapitated was a Lesurques, but that one Lesurques was
enough to wipe out the value of capital punishment for ever.
It is interesting to note that where cases of wrongful
execution have come to public attention, they have been a
major force responsible for bringing about abolition of
death penalty. The Evans case in England in which an
innocent man was hanged in 1949 played a large role in the
abolition of capital punishment in that country. Belgium
also abjured capital punishment on account of one such
judicial error and so did Wisconsin, Rhode Island and Maine
in the United States of America.

Howsoever careful may be the procedural safeguards
erected by the law before death penalty can be imposed, it
is impossible to eliminate the chance of judicial error. No
possible judicial safeguards can prevent conviction of the
innocent. Students of the criminal process have identified
several reasons why innocent men may be convicted of crime.
In the first place, our methods of investigation are crude
and archaic. We are, by and large, ignorant of modern
methods of investigation based on scientific and
technological advances. Our convictions are based largely on
oral evidence of witnesses. Often, witnesses perjure
themselves as they are motivated by caste, communal and
factional considerations. Some times they are even got up by
the police to prove what the police believes to be a true
case. Sometimes there is also mistaken eye witness
identification and this evidence is almost always difficult
to shake in cross-examination. Then there is also the
possibility of a frame up of innocent men by their enemies.
There are also cases where an over zealous prosecutor may
fail to disclose evidence of innocence known to him but not
known to the defence. The possibility of error in judgment
cannot therefore be ruled out on any theoretical
considerations. It is indeed a very live possibility and it
is not at all unlikely that so long as death penalty remains
a constitutionally valid alternative, the court or the State
acting through the instrumentality of the court may have on
its conscience the blood of an innocent man.
Then again it is sometimes argued that, on this
reasoning, every criminal trial must necessarily raise the
possibility of wrongful conviction and if that be so, are we
going to invalidate every form of punishment ? But this
argument, I am afraid, is an argument of despair. There is a
qualitative difference between death penalty and other forms
of punishment. I have already pointed out that the former
extinguishes the flame of life altogether and is irrevocable
and beyond recall while the latter can, at least to some
extent be set right, if found mistaken. This vital
difference between death penalty and imprisonment was
emphasized by Mahatma Gandhi when he said in reply to a
German writer :

"I would draw distinction between killing and
detention and even corporal punishment. I think
there is a difference not merely in quantity but
also in quality. I can recall the punishment of
detention. I can make reparation to the man upon
whom I inflict corporal punishment. But once a man
is killed, the punishment is beyond recall or
reparation."

The same point was made by the distinguished criminologist
Leon Radzinowicz when he said : "The likelihood of error in
a capital sentence case stands on a different footing
altogether." Judicial error in imposition of death penalty
would indeed be a crime beyond punishment. This is the
drastic nature of death penalty, terrifying in its
consequences, which has to be taken into account in
determining in constitutional validity.

It is also necessary to point out that death penalty is
barbaric and inhuman in its effect, mental and physical upon
the condemned man and is positively cruel. Its psychological
effect on the prisoner in the Death Row is disastrous. One
Psychiatrist has described Death Row as a "grisly
laboratory" "the ultimate experiment alstress in which the
condemned prisoner's personality is incredibly brutalised."
He points out that "the strain of existence on Death Row is
very likely to produce....... acute psychotic breaks." Vide
the article of "West on Medicine and Capital Punishment."
Some inmates are driven to ravings or delusions but the
majority sink into a sort of catatonic numbness under the
over-whelming stress." Vide "The Case against Capital
Punishment" by the Washington Research Project. Intense
mental suffering is inevitably associated with confinement
under sentence of death. Anticipation of approaching
death can and does produce stark terror. Vide article on
"Mental Suffering under Sentence of Death". 57 Iowa Law
Review 814. Justice Brennan in his opinion in Furman v.
Georgia(1) gave it as a reason for holding the capital
punishment to be unconstitutional that mental pain is an
inseparable part of our practice of punishing criminals by
death, for the prospect of pending execution exacts a
frightful toll during the inevitable long wait between the
imposition of sentence and the actual infliction of death."

Krishna Iyer, J. also pointed out in
Rajendra Prasad
's case
(supra) that because the condemned prisoner had "the hanging
agony hanging over his head since 1973 (i.e. for six
years)..."he must by now be more a vegetable than a person."
He added that "the excruciation of long pendency of the
death sentence with the prisoner languishing near-solitary
suffering all the time, may make the death sentence
unconstitutionally cruel and agonising." The California
Supreme Court also, in finding the death penalty per se
unconstitutional remarked with a sense of poignancy :

"The cruelty of capital punishment lies not only
in the execution itself and the pain incident thereto,
but also in the dehumanising effects of the lengthy
imprisonment prior to execution during which the
judicial and administrative procedures essential to due
process of law are carried out. Penologists and medical
experts agree that the process of carrying out a
verdict of death is often so degrading and brutalizing
to the human spirit as to constitute psychological
torture."

In Re Kemmler(2) the Supreme Court of the United States
accepted that "punishments are cruel when they involve a
lingering death, something more than the mere extinguishment
of life." Now a death would be as lingering if a man spends
several years in a death cell avaiting execution as it would
be if the method of execution takes an unacceptably long
time to kill the victim. The pain of mental lingering can be
as intense as the agony of physical lingering. See David
Pannick on "Judicial Review of the Death Penalty." Justice
Miller also pointed out in Re Medley(3) that "when a
prisoner sentenced by a court to death is confined to the
______________
(1) 408 US 238.

(2) 136 US 436.

(3) 134 US 160.
penitentiary awaiting the execution of the sentence, one of
the most horrible feelings to which he can be subjected
during that time is the uncertainty during the whole of
it..... as to the precise time when his execution shall take
place." We acknowledged that such uncertainty is inevitably
'accompanied by an immense mental anxiety amounting to a
great increase of the offender's punishment.'
But quite apart from this excruciating mental anguish
and severe psychological strain which the condemned prisoner
has to undergo on account of the long wait from the date
when the sentence of death is initially passed by the
sessions court until it is confirmed by the High Court and
then the appeal against the death sentence is disposed of by
the Supreme Court and if the appeal is dismissed, then until
the clemency petition is considered by the Pesident and if
it is turned down, then until the time appointed for actual
execution of the sentence of death arrives, the worst time
for most of the condemned prisoners would be the last few
hours when all certainty is gone and the moment of death is
known. Dostoyevsky who actually faced a firing squad only to
be reprieved at the last instant, described this experience
in the following words :

"...the chief and the worst pain is perhaps not
inflicted by wounds, but by your certain knowledge that
in an hour, in ten minutes, in half a minute, now this
moment your soul will fly out of your body, and that
you will be a human being no longer, and that that's
certain-the main thing is that it is certain ..Take a
soldier and put him in front of a cannon in battle and
fire at him and he will still hope, but read the same
soldier his death sentence for certain, and he will go
mad or burst out crying. Who says that human nature is
capable of bearing this without madness ? Why this
cruel, hideous, unnecessary and useless mockery ?
Possibly there are men who have sentences of death read
out to them and have been given time to go through this
torture, and have then been told, You can go now,
you've been reprieved. Such men could perhaps tell us.
It was of agony like this and of such horror that
Christ spoke. No you can't treat a man like that."
We have also accounts of execution of several prisoners in
the United States which show how in these last moment
condemned prisoners often simply disintegrate. Canns has in
frank and brutal language bared the terrible psychological
cruelty of capital punishment :

"Execution is not simply death. It is just as
different in essence, from the privation of life as a
concentration camp is from prison..... It adds to death
a rule, a public premeditation known to the future
victim, an organisation, in short, which is in itself a
source of moral sufferings more terrible than death...
For there to be equivalence, the death penalty would
have to punish a criminal who had warned his victim of
the date at which he would inflict a horrible death on
him and who, from that moment onward, had confined him
at his mercy for months. Such a monster is not
encountered in private life."

There can be no stronger words to describe the utter
depravity and inhumanity of death sentence.

The physical pain and suffering which the execution of
the sentence of death involves is also no less cruel and
inhuman. In India, the method of execution followed is
hanging by the rope. Electrocution or application of lethal
gas has not yet taken its place as in some of the western
countries. It is therefore with reference to execution by
hanging that I must consider whether the sentence of death
is barbaric and inhuman as entailing physical pain and
agony. It is no doubt true that the Royal Commission on
Capital Punishment 1949-53 found that hanging is the most
humane method of execution and so also in Ichikawa v.
Japan,(1) the Japanese Supreme Court held that execution by
hanging does not corrospond to 'cruel punishment' inhibited
by
Article 36
of the Japanese Constituion. But whether
amongst all the methods of execution, hanging is the most
humane or in the view of the Japanese Supreme Court, hanging
is not cruel punishment within the meaning of
Article 36
,
one thing is clear that hanging is undoubtedly accompanied
by intense physical torture and pain. Warden Duffy of San
Quentin, a high security
__________
(1) Vide : David Pannick on "Judicial Review of Death
Penalty, page 73,
prison in the United States of America, describes the
hanging process with brutal frankness in lurid details :

"The day before an execution the prisoner goes
through a harrowing experience of being weighed,
measured for length of drop to assure breaking of the
neck, the size of the neck, body measurement et cetera.
When the trap springs he dangles at the end of the
rope. There are times when the neck has not been broken
and the prisoner strangles to death. His eyes pop
almost out of his head, his tongue swells and protrudes
from his mouth, his neck may be broken, and the rope
many times takes large portions of skin and flesh from
the side of the face and that the noose is on. He
urinates, he defecates, and droppings fall to the floor
while witnesses look on, and at almost all executions
one or more faint or have to be helped out of the
witness room. The prisoner remains dangling from the
end of the rope for from 8 to 14 minutes before the
doctor, who has climbed up a small ladder and listens
to his heart beat with a stethoscope, pronounces him
dead. A prison guard stands at the feet of the hanged
person and holds the body steady, because during the
first few minutes there is usually considerables
struggling in an effort to breathe."

If the drop is too short, there will be a slow and agonising
death by strangulation. On the other hand, if the drop is
too long, the head will be torn off. In England centuries of
practice have produced a detailed chart relating a man's
weight and physical condition to the proper length of drop,
but even there mistakes have been made. In 1927, a surgeon
who witnessed a double execution wrote :

"The bodies were cut down after fifteen minutes
and placed in an antechamber, when I was horrified to
hear one of the supposed corpses give a gasp and find
him making respiratory efforts, evidently a prelude to
revival. The two bodies were quickly suspended again
for a quarter of an hour longer...Dislocation of the
neck is the ideal aimed at, but, out of all my post-
mortem findings, that has proved rather an exception,
which in the majority of
instances the cause of death was strangulation and
asphyxin."

These passages clearly establish beyond doubt that the
execution of sentence of death by hanging does involve
intense physical pain and suffering, though it may be
regarded by some as more humane than electrocution or
application of lethal gas.

If this be the true mental and physical effect of death
sentence on the condemned prisoner and if it causes such
mental anguish, psychological strain and physical agony and
suffering, it is difficult to see how it can be regarded as
anything but cruel and inhuman. The only answer which can be
given for justifying this infliction of mental and physical
pain and suffering is that the condemned prisoner having
killed a human being does not merit any sympathy and must
suffer this punishment because he 'deserves' it. No mercy
can be shown to one who did not show any mercy to others.
But, as I shall presently point out, this justificatory
reason cannot commend itself to any civilised society
because it is based on the theory of retribution or
retaliation and at the bottom of it lies the desire of the
society to avenge itself against the wrong doer. That is not
a permissible penological goal.

It is in the context of this background that the
question has to be considered whether death penalty provided
under
section 302
of the Indian Penal Code read with section
354 sub-section (3) of the
Code of Criminal Procedure
is
arbitrary and irrational for if it is, it would be clearly
violative of
Articles 14
and
21.
I am leaving aside for the
moment challenge to death penalty under Article 19 and
confining myself only to the challenge under Article 14 and

21. So far as this challenge is concerned the learned
counsel appearing on behalf of the petitioner contended that
the imposition of death penalty under
section 302
of the
Indian Penal Code read with section 354 sub-section (3) of
the
Code of Criminal Procedure
was arbitrary and
unreasonable, firstly because it was cruel and inhuman,
disproportionate and excessive, secondly because it was
totally unnecessary and did not serve any social purpose or
advance any constitutional value and lastly because the
discretion conferred on the court to award death penalty was
not guided by any policy or principle laid down by the
legislature but was wholly arbitrary. The Union of India as
also the States supporting it sought to counter this argu-
ment of the petitioners by submitting first that death
penalty is neither cruel nor inhuman, neither
disproportionate nor excessive, secondly, that it does serve
a social purpose inasmuch as it fulfils two penological
goals namely, denunciation by the community and deterrence
and lastly, that the judicial discretion in awarding death
penalty is not arbitrary and the court can always evolve
standards or norms for the purpose of guiding the exercise
of its discretion in this punitive area. These were broadly
the rival contentions urged on behalf of the parties and I
shall now proceed to examine them in the light of the
observations made in the preceding paragraphs.

The first question that arises for consideration on
these contentions is-and that is a vital question which may
well determine the fate of this challenge to the
constitutional validity of death penalty-on whom does the
burden of proof lie in a case like this ? Does it lie on the
petitioners to show that death penalty is arbitrary and
unreasonable on the various grounds urged by them or does it
rest on the State to show that death penalty is not
arbitrary or unreasonable and serves a legitimate social
purpose. This question was debated before us at great length
and various decisions were cited supporting one view or the
other. The earliest decision relied on was that of
Saghir
Ahmed v. State of Uttar Pradesh
(1) where it was held by this
Court that if the petitioner succeeds in showing that the
impugned law ex facie abridges or transgresses the rights
coming under any of the sub-clauses of clause (1) of
Article
, the onus shifts on the respondent State to show that the
legislation comes within the permissible limits authorised
by any of clauses (2) to (6) as may be applicable to the
case, and also to place material before the court in support
of that contention. If the State fails to discharge this
burden, there is no obligation on the petitioner to prove
negatively that the impugned law is not covered by any of
the permissive clauses.

This view as to the onus of proof
was reiterated by this Court in
Khyerbari Tea Company v.
State of Assam
(2).

But contended the respondents, a contrary
trend was noticeable in some of the subsequent decisions of
this Court and the respondents relied principally on the
decision in
B. Banerjee v. Anita Pan
(3) where Krishna Iyer,
J. speaking on behalf of himself and Beg, J. as he then was,
_________________________
(1) [1955] 1 SCR 707.

(2) [1964] 5 SCR 975.

(3) [1975] 2 S.C.R. 774.
recalled the following statement of the law from the
Judgment of this Court in
Ram Krishna Dalmia v. S.R.
Tendolkar & others
: (1)
"there is always a presu mption in favour of the
constitutionality of an enactment and the burden is
upon him who attacks it to show that there has been a
clear transgression of the constitutional principles."

and
"that it must be presumed that the legislature
understands and correctly appreciates the need of its
own people, that its laws are directed to problems made
manifest by experience and that its discriminations are
based on adequate grounds."

and added that "if nothing is placed on record by the
challengers, the verdict ordinarily goes against them."
Relying inter alia on the decision of this Court in
State of
Bombay v. R.M.D. Chamarbaugwala
(2) the learned Judge again
emphasized:

"Some courts have gone to the extent of holding
that there is a presumption in favour of
constitutionality, a law will not be declared
unconstitutional unless the case is so clear as to be
free from doubt."

These observations of Krishna Iyer, J. undoubtedly seem
to support the contention, of the respondents, but it may be
pointed out that what was said by this Court in the passage
quoted above from the judgment in
Ram Krishna Dalmia
's case
(supra) on which reliance was placed by Krishna Iyer, J. was
only with reference to the challenge under
Article 14
and
the Court was not considering there the challenge under

Articles 19
or 21.

This statement of the law contained in

Ram Krishna Dalmia
's case (supra) could not therefore be
applied straightaway without anything more in a case where a
law was challenged under
Articles 19
or 21. The fact,
however, remains that Krishna Iyer, J. relied on this
statement of the law even though the case before him
involved a challenge under
Article 19(1) (f)
and not under

Article 14.

Unfortunately, it seems that the attention of
the learned Judge was not invited to the decisions of this
Court in
Saghir Ahmed
's case and Khyerbari Tea Company's
case
_______________________
(1) [1959] SCR 297.

(2) [1957] SCR 874.
(supra) which were cases directly involving challenge under

Article 19.
These decisions were binding on the learned
Judge and if his attention had been drawn to them, I am sure
that he would not have made the observations that he did
casting on the petitioners the onus of establishing
"excessiveness or perversity in the restrictions imposed by
the statute" in a case alleging violation of
Article 19.

These observations are clearly contrary to the law
laid down
in
Saghir Ahmed and Khyerbari Tea Company cases (supra)
The respondents also relied on the observations of
Fazal Ali, J. in
Pathumma v. State of Kerala
(1). There the
constitutional validity of the Kerala Agriculturists' Debt
Relief Act 1970 was challenged on the ground of violation of
both
Articles 14
and
19(1) (f).
Before entering upon a
discussion of the arguments bearing on the validity of this
challenge, Fazal Ali. J. speaking on behalf of himself, Beg,
C.J., Krishna Iyer and Jaswant Singh. JJ. observed that the
court will interfere with a statute only "when the statute
is clearly violative of the right conferred on the citizen
under Part III of the Constitution" and proceeded to add
that it is on account of this reason "that courts have
recognised that there is always a presumption in favour of
the constitutionality of a statute and the onus to prove its
invalidity lies on the party which assails the same."

The
learned Judge then quoted with approval the following
passage from the Judgment of S.R. Das, C.J. in
Mohd. Hanif
v. State of Bihar
(2)
"The pronouncements of this Court further
establish, amongst other things, that there is always a
presumption in favour of the constitutionality of an
enactment and that the burden is upon him, who attacks
it, to show that there has been a clear violation of
the constitutional principles. The Courts, it is
accepted, must presume that the legislature understands
and correctly appreciates the needs of its own people,
that its laws are directed to problems made manifest by
experience and that its discriminations are based on
adequate grounds."

It is difficult to see how these observations can be pressed
into service on behalf of the respondents. The passage from
the judgment of
_______________________
(1) [1970] 2 SCR 537.

(2) [1959] S.C.R. 629.
S.R. Das, C.J. in
Mohd. Hanif
's case (supra) relied upon by
Fazal Ali, J. occurs in the discussion relating to the
challenge under
Article 14
and obviously it was not intended
to have any application in a case involving challenge under

Article 19
or 21. In fact, while discussing the challenge to
the prevention of cow slaughter statutes under
Article
19(1)(g)
, S.R. Das, C.J. proceeded to consider whether the
restrictions imposed by the impugned statutes on the
Fundamental Rights of the petitioners under
Article 19(1)(g)

were reasonable in the interest of the general public so as
to be saved by clause (6) of
Article 19.
Moreover, the
observations made by Fazal Ali, J. were general in nature
and they were not directed towards consideration of the
question as to the burden of proof in cases involving
violation of
Article 19.
What the learned Judge said was
that there is always a presumption in favour of the
constitutionality of a statute and the court will not
interfere unless the statute is clearly violative of the
Fundamental Rights conferred by Part III of the
Constitution. This is a perfectly valid statement of the law
and no exception can be taken to it. There must obviously be
a presumption in favour of the constitutionality of a
statute and initially it would be for the petitioners to
show that it violates a Fundamental Right conferred under
one or the other sub-clauses of clause (1) of
Article 19
and
is therefore unconstitutional, but when that is done, the
question arises, on whom does the burden of showing whether
the restrictions are permissible or not, lie? That was not a
question dealt with by Fazal Ali, J. and I cannot therefore
read the observations of the learned Judge as, in any
manner, casting doubt on the validity of the statement of
law contained in Saghir Ahmed and Khyerbari Tea Company's
cases (supra). It is clear on first principle that
subclauses (a) to (g) of clause (1) of
Article 19
enact
certain fundamental freedoms and if sub clauses (2) to (6)
were not there, any law contravening one or more of these
fundamental freedoms would have been unconstitutional. But
clauses (2) to (6) of
Article 19
save laws restricting these
fundamental freedoms, provided the restrictions imposed by
them fall within certain permissible categories. Obviously
therefore, when a law is challenged on the ground that it
imposes restrictions on the freedom guaranteed by one or the
other subclause of clause (1) of
Article 19
and the
restrictions are shown to exist by the petitioner, the
burden of establishing that the restrictions fall within any
of the permissive clauses (2) to (6) which may be
applicable, must rest upon the State. The State would have
to produce material for satisfying the court that the
restrictions imposed
by the impugned law fall within the appropriate permissive
clause from out of clauses (2) to (6) of
Article 19.
Of
course there may be cases where the nature of the
legislation and the restrictions imposed by it may be such
that the court may, without more, even in the absence of any
positive material produced by the State, conclude that the
restrictions fall within the permissible category, as for
example, where a law is enacted by the legislature for
giving effect to one of the Directive Principles of State
Policy and prima facie, the restrictions imposed by it do
not appear to be arbitrary or excessive. Where such is the
position, the burden would again shift and it would be for
the petitioner to show that the restrictions are arbitrary
or excessive and go beyond what is required in public
interest. But, once it is shown by the petitioner that the
impugned law imposes restrictions which infringe one or the
other sub-clause of clause (1) of
Article 19
, the burden of
showing that such restrictions are reasonable and fall
within the permissible category must be on the State and
this burden the State may discharge either by producing
socio economic data before the court or on consideration of
the provisions in the impugned law read in the light of the
constitutional goals set out in the Directive Principles of
State Policy.

The test to be applied for the purpose of
determining whether the restrictions imposed by the impugned
law are reasonable or not cannot be cast in a rigid formula
of universal application, for, as pointed out by Patanjali
Shastri, J. in
State of Madras v. V.J. Row
(1) "no abstract
standard or general pattern of reasonableness can be laid
down as applicable to all cases". The nature of the right
alleged to have been infringed, the underlying purpose of
the restrictions imposed, the extent and urgency of the evil
sought to be remedied, the value of human life, the
disproportion of the imposition, the social philosophy of
the Constitution and the prevailing conditions at the time
would all enter into the judicial verdict. And we would do
well to bear in mind that in evaluating such elusive factors
and forming his own conception of what is reasonable in all
the circumstances of a given case, it is inevitable that the
social philosophy and the scale of values of the judge
participating in the decision would play a very important
part.

Before I proceed to consider the question of burden of
proof in case of challenge under
Article 14
, it would be
convenient first to
(1) [1952] SCR 597.
deal with the question as to where does the burden of proof
lie when the challenge to a law enacted by the legislature
is based on violation of
Article 21.
The position in regard
to onus of proof in a case where the challenge is under

Article 21
is in my opinion much clearer and much more free
from doubt or debate than in a case where the complaint is
of violation of clause (1) of
Article 19.
Wherever there is
deprivation of life, and by life I mean not only physical
existence, but also use of any faculty or limb through which
life is enjoyed and basic human dignity, or of any aspect of
personal liberty, the burden must rest on the State to
establish by producing adequate material or otherwise that
the procedure prescribed for such deprivation is not
arbitrary but is reasonable, fair and just. I have already
discussed various circumstances bearing upon the true nature
and character of death penalty and these circumstances
clearly indicate that it is reasonable to place on the State
the onus to prove that death penalty is not arbitrary or
unreasonable and serves a compelling State interest. In the
first place, death penalty destroys the most fundamental
right of all, namely, the right to life which is the
foundation of all other fundamental rights. The right to
life stands on a higher footing than even personal liberty,
because personal liberty too postulates a sentient human
being who can enjoy it. Where therefore a law authorises
deprivation of the right to life the reasonableness,
fairness and justness of the procedure prescribed by it for
such deprivation must be established by the State. Such a
law would be 'suspect' in the eyes of the court just as
certain kinds of classification are regarded as 'suspect' in
the United States of America. Throwing the burden of proof
of reasonableness, fairness and justness on the State in
such a case is a homage which the Constitution and the
courts must pay to the righ to life. It is significant to
point out that even in case of State action depriving a
person of his personal liberty, this Court has always cast
the burden of proving the validity of such action on the
State, when it has been challenged on behalf of the person
deprived of his personal liberty. It has been consistently
held by this Court that when detention of a person is
challenged in a habeas corpus petition, the burden of
proving the legality of the detention always rests on the
State and it is for the State to justify the legality of the
detention. This Court has shown the most zealous regard for
personal liberty and treated even letters addressed by
prisoners and detenus as writ petitions and taken action
upon them and called upon the State to show how the
detention is justified. If this be the anxiety and concern
shown by
the court for personal liberty, how much more should be the
judicial anxiety and concern for the right to life which
indisputably stands on a higher pedestal. Moreover, as
already pointed out above, the international standard or
norm set by the United Nations is in favour of abolition of
death penalty and that is the ultimate objective towards
which the world body is moving. The trend of our national
legislation is also towards abolition and it is only in
exceptional cases for special reasons that death sentence is
permitted to be given. There can be no doubt that even under
our national legislation death penalty is looked upon with
great disfavour. The drastic nature of death penalty
involving as it does the possibility of error resulting in
judicial murder of an innocent man as also its brutality in
inflicting excruciating mental anguish severe psychological
strain and agonising physical pain and suffering on the
condemned prisoner are strong circumstances which must
compel the State to justify imposition of death penalty. The
burden must lie upon the State show that death penalty is
not arbitrary and unreasonable and serves a legitimate
social purpose, despite the possibility of judicial error in
convicting and sentencing an innocent man and the brutality
and pain, mental as well as physical, which death sentence
invariably inflicts upon the condemned prisoner. The State
must place the necessary material on record for the purpose
of discharging this burden which lies upon it and if it
fails to show by presenting adequate evidence before the
court or otherwise that death penalty is not arbitrary and
unreasonable and does serve a legitimate social purpose, the
imposition of death penalty under
section 302
of the Indian
Penal Code read with section 354 sub-section (3) of the
Code
of Criminal Procedure
would have to be struck down as
violative of the protection of
Article 21.

So far as the question of burden of proof in a case
involving challenge under
Article 14
is concerned, I must
concede that the decisions in Ram Krishan Dalmia's case
(
supra) and Mohd. Hannif Qureshi
's case (supra) and several
other subsequent decisions of the Court have clearly laid
down that there is a presumption in favour of
constitutionality of a statute and the burden of showing
that it is arbitrary or discriminary lies upon the
petitioner, because it must be presumed "that the
legislature understands and correctly appreciates the needs
of its own people, that its laws are directed to problems
made manifest by experience and that its discriminations are
based on adequate grounds." Sarkaria, J. has pointed out in
the majority judgment that underlying this presumption of
constitu-
tionality "is the rationale of judicial restraint, a
recognition of the limits of judicial review, a respect for
the boundaries of legislative and judicial functions and the
judicial responsibility to guard the tresspass from one side
or the other." The learned Judge with a belief firmly rooted
in the tenets of mechanical jurisprudence, has taken the
view that "the primary function of the Courts is to
interpret and apply the laws according to the will of those
who made them and not to transgress into the legislative
domain of policy making." Now there can be no doubt that in
adjudicating upon the constitutional validity of a statute,
the Judge should show deference to the legislative judgment
and should not be anxious to strike it down as invalid. He
does owe to the legislature a margin of tolerance and he
must constantly bear in mind that he is not the legislator
nor is the court a representative body. But I do not agree
with Sarkaria, J. when he seems to suggest that the judicial
role is, as it was for Francis Bacon, 'jus dicere and not
jus dare; to interpret law and not to make law or give law.'
The function of the Court undoubtedly is to interpret the
law but the interpretative process is highly creative
function and in this process, the Judge, as pointed out by
Justice Holmes, does and must legislate. Lord Reid ridiculed
as 'a fairytale' the theory that in some Aladdin's cave is
hidden the key to correct judicial interpretation of the
law's demands and even Lord Diplock acknowledged that "The
court may describe what it is doing in tax appeals as
interpretation. So did the priestess of the Delphic Oracle.
But whoever has final authority to explain what Parliament
meant by the words that it used, makes law as if the
explanation it has given were contained in a new Act of
Parliament. It will need a new Act of Parliament to reverse
it." Unfortunately we are so much obsessed with the
simplicities of judicial formalism which presents the
judicial role as jus dicere, that, as pointed out by David
Pannick in his "Judicial Review of the Death Penalty", "we
have, to a substatial extent, ignored the Judge in
administering the judicial process. So heavy a preoccupation
we have made with the law, its discovery and its agents who
play no creative role, that we have paid little, if any,
regard to the appointment, training, qualities, demeanour
and performance of the individuals selected to act as the
mouth of the legal oracle." It is now acknowledged by
leading jurists all over the world that judges are not
descusitized and passionless instruments which weigh on
inanimate and impartial scales of legal judgment, the
evidence and the arguments presented on each side of the
case. They are not political
and moral enuchs able and willing to avoid impregnating the
law with their own ideas and judgment. The judicial exercise
in constitutional adjudication is bound to be influenced,
consciously or subconsciouly, by the social philosophy and
scale of values of those who sit in judgment. However, I
agree with Sarkaria, J. that ordinarily the judicial
function must be characterised by deference to legislative
judgment because the legislature represents the voice of the
people and it might be dangerous for the court to trespass
into the sphere demarcated by the Constitution for the
legislature unless the legislative judgment suffers from a
constitutional infirmity. It is a trite saying that the
Court has "neither force nor will but merely judgment" and
in the exercise of this judgment, it would be a wise rule to
adopt to presume the constitutionality of a statute unless
it is shown to be invalid. But even here it is necessary to
point out that this rule is not a rigid inexorable rule
applicable at all times and in all situations. There may
conceivably be cases where having regard to the nature and
character of the legislation, the importance of the right
affected and the gravity the injury caused by it and the
moral and social issues involved in the determination, the
court may refuse to proceed on the basis of presumption of
constitutionality and demand from the State justification of
the legislation with a view to establishing that it is not
arbitrary or discriminatory. There are times when commitment
to the values of the Constitution and performance of the
constitutional role as guardian of fundamental rights
demands dismissal of the usual judicial deference to
legislative judgment. The death penalty, of which the
constitutionality is assailed in the present writ petitions,
is a fundamental issue to which ordinary standards of
judicial review are inappropriate. The question here is one
of the most fundamental which has arisen under the
Constitution, namely, whether the State is entitled to take
the life of a citizen under cover of judicial authority. It
is a question so vital to the identity and culture of the
society and so appropriate for judicial statement of the
standards of a civilised community-often because of
legislative apathy-that "passivity and activism become
platitudes through which judicial articulation of moral and
social values provides a light to guide an uncertain
community." The same reasons which have weighed with me in
holding that the burden must lie on the State to prove that
the death penalty provided under
section 302
of the Indian
Penal Code read with section 354 sub-section (3) of the
Code
of Criminal Procedure
is not arbitrary and unreasonable and
serves a legitimate penological purpose where
the challenge is under
Article 21
must apply equally to cast
the burden of the proof upon the State where the challenge
is under
Article 14.

Now it is an essential element of the rule of law that
the sentence imposed must be proportionate to the offence.
If a law provides for imposition of a sentence which is
disproportionate to the offence, it would be arbitrary and
irrational, for it would not pass the test of reason and
would be contrary to the rule of law and void under
Articles
, 19
and
21.
The principle of proportionality is implicit
in these three Articles of the Constitution. If, for
example, death penalty was prescribed for the simple offence
of theft-as indeed it was at one time in the seventeenth
century England-it would be clearly excessive and wholly
disproportionate to the offence and hence arbitrary and
irrational by any standards of human decency and it would be
impossible to sustain it against the challenge of these
three Articles of the Constitution. It must therefore be
taken to be clear beyond doubt that the proportionality
principle constitutes an important constitutional criterion
for adjudging the validity of a sentence imposed by law.

The Courts in the United States have also recognised
the validity of the proportionality principle. In Gregg v.
Goergia (1) Stewart, J. speaking for the plurality of the
American Supreme Court said that "to satisfy constitutional
requirements, the punishment must not be excessive...the
punishment must not be out of proportion to the severity of
the crime. This constitutional criterion was also applied in
Coker v. Georgia (2) to invalidate the death penalty for
rape of an adult woman. While, J. with whom Stewarts and
Blackmun, JJ. agreed, said, with regard to the offence of
rape committed against an adult woman : "a sentence of death
is grossly disproportionate and excessive punishment for the
crime of rape and is therefore forbidden by the Eighth
Amendment as cruel and unusual punishment". Likewise in
Lockette v. Ohio (3) where the defendant sat outside the
scene of robbery waiting to drive her accomplices away and
contrary to plan, the robbers murdered three victims in the
course of their robbery and she was convicted and sentenced
to death by resort to the doctrine of vicarious liability,
the Supreme Court of the United States applying the same
principle of proportionality held the death sentence
unconstitutional. Marshall, J. pointed out that because the
appellant was convicted under a theory of vicarious
liability, the death penalty imposed on her "violates the
principle of proportionality embodied in the Eighth
Amendment's prohibition" and White J. also subscribed to the
same reasoning when he said, "the infliction of death upon
those who had no intent to bring about the death of the
victim is .....grossly out of proportion to the severity of
the crime".
Of course, the Supreme Court of the United
States relied upon the Eighth Amendment which prohibits
cruel and unusual treatment or punishment and we have no
such express prohibition in our Constitution, but this Court
has held in
Francis Mullen
's case (supra) that protection
against torture or cruel and inhuman treatment or punishment
is implicit in the guarantee of
Article 21
and therefore
even on the basic of the reasoning in these three American
decisions, the principle of proportionallty would have
relevance under our Constitution. But, quite apart from
this, it is clear and we need not reiterate what we have
already said earlier, that the principle of proportionality
flows directly as a necessary element from
Articles 14
, 19

and
of the Constitution.
We find that in Canada too, in
the case of Rex v. Miller and Cockriell (1) the principle of
proportionality has been recognised by Laskin C.J. speaking
on behalf of Canadian Supreme Court as "one of the
constitutional criteria of 'cruel and unusual treatment or
punishment' prohited under the Canadian Bill of Rights.
Laskin C.J. pointed out in that case "It would be patent to
me, for example, that death as a mandatory penalty today for
theft would be offensive to
s. 2(b)
. That is because there
are social and moral considerations that enter into the
scope and application of
section 2(b)
. Harshness of
punishment and its severity in consequences are relative to
the offence involved but, that being said, there may still
be a question (to which history too may be called in aid of
its resolution) whether the punishment prescribed is so
excessive as to outrage standards of decency. That is not a
precise formula for
s. 2(b)
but I doubt whether a more
precise one-can be found." Similarly, as pointed out by Mr.
David Pannick in his book on "Judicial Review of the Death
Penalty" international charters of rights express or imply
the principle of proportionality.
Article 7
of the
International Covenant on Civil and Political Rights forbids
torture and cruel
inhuman or degrading treatment or punishment and so does
Article A 3 of the European Convention on Human Rights. It
has been suggested by Francis Jacobs, a commentator on the
European Convention that "among the factors to be considered
in deciding whether the death penalty, in particular
circumstances, was contrary to
Article 3
, would be whether
it was disproportionate to the offence.

It is necessary to point out at this stage that death
penalty cannot be said to be proportionate to the offence
merely because it may be or is believed to be an effective
deterrent against the commission of the offence. In Coker v.
Georgia (supra) the Supreme Court of the United States held
that capital punishment is disproportionate to rape "even
though it may measurably serve the legitimate ends of
punishment and therefore is not invalid for its failure to
do so." The absence of any rational purpose to the
punishment inflicted is a separate ground for attacking its
constitutionality. The existence of a rational legislative
purpose for imposing the sentence of death is a necessary
condition of its constitutionality but nota sufficient one.
The death penalty for theft would, for example, deter most
potential thieves and may have a unique deterrent effect in
preventing the commission of the offence; still it would be
wholly disproportionate and excessive, for the social effect
of the penalty is not decisive of the proportionality to the
offence. The European Court of Human Rights also observed in
Tyrer v. United Kingdom (1) that "a punishment does not lose
its degrading character just because it is believed to be,
or actually is, an effective deterrent or aid to crime
control. Above all, as the court must emphasize, it is never
permissible to have recourse to punishments which are
contrary to
Article 3
, whatever their deterrent effect may
be." The utilitarian value of the punishment has nothing to
do with its proportionality to the offence. It would
therefore be no answer in the present case for the
respondents to say that death penalty has a unique deterrent
effect in preventing the crime of murder and therefore it is
proportionate to the offence. The proportionality between
the offence and death penalty has to be judged by reference
to objective factors such as international standards or
norms or the climate of international opinion, modern
penological theories and evolving standards of human
decency. I have already pointed out and I need not repeat
that the international standard or norm which
is being evolved by the United Nations is against death
penalty and so is the climate of opinion in most of the
civilized countries of the world. I will presently show that
penological goals also do not justify the imposition of
death penalty for the offence of murder. The prevailing
standards of human decency are also incompatible with death
penalty. The standards of human decency with reference to
which the proportionality of the punishment to the offence
is required to be judged vary from society to society
depending on the cultural and spiritual tradition of the
society, its history and philosophy and its sense of moral
and ethical values. To take an example, if a sentence of
cutting off the arm for the offence of theft or a sentence
of stoning to death for the offence of adultery were
prescribed by law, there can be no doubt that such
punishment would be condemned as barbaric and cruel in our
country, even though it may be regarded as proportionate to
the offence and hence reasonable and just in some other
countries. So also the standards of human decency vary from
time to time even within the same society. In an
evolutionary society, the standards of human decency are
progressively evolving to higher levels and what was
regarded as legitimate and reasonable punishment
proportionate to the offence at one time may now according
to the envolving standards of human decency, be regarded as
barbaric and inhuman punishment wholly disproportionate to
the offence. There was a time when in the United Kingdom a
sentence of death for the offence of theft or shop lifting
was regarded as proportionate to the offence and therefore
quite legitimate and reasonable according to the standards
of human decency then prevailing, but today such punishment
would be regarded as totally disproportionate to the offence
and hence arbitrary and unreasonable. The question,
therefore, is whether having regard to the international
standard or norm set by the United Nations in favour of
abolition of death penalty, the climate of opinion against
death penalty in many civilized countries of the world and
the prevailing standards of human decency, a sentence of
death for the offence of murder can be regarded as
satisfying the test of proportionality and hence reasonable
and just. I may make it clear that the question to which I
am addressing myself is only in regard to the
proportionality of death sentence to the offence of murder
and nothing that I say here may be taken as an expression of
opinion on the question whether a sentence of death can be
said to be proportionate to the offence of treason or any
other offence involving the security of the State.
Now in order to determine what are the prevailing
standards of human decency, one cannot ignore the cultural
ethos and spiritual tradition of the country. To quote the
words of Krishna Iyer, J. in
Raiendra Prasad
's case "The
values of a nation and ethos of a generation mould concepts
of crime and punishment. So viewed, the lode-star of penal
policy today, shining through the finer culture of former
centuries, strengthens the plea against death penalty...The
Indian cultural current also counts and so does our
spiritual chemistry, based on divinity in everyone,
catalysed by the Buddha Gandhi compassion. Many humane
movements and sublime souls have cultured the higher
consciousness of mankind." In this land of Buddha and
Gandhi, where from times immemorial, since over 5000 years
ago, every human being is regarded as embodiment of Brahman
and where it is a firm conviction based not only on faith
but also on experience that "every saint has a past and
every sinner a future", the standards of human decency set
by our ancient culture and nourished by our constitutional
values and spiritual norms frown upon imposition of death
penalty for the offence of murder. It is indisputable that
the Constitution of a nation reflects its culture and ethos
and gives expression to its sense of moral and ethical
values. It affords the surest indication of the standards of
human decency cherished by the people and sets out the
socio-cultural objectives and goals towards which the nation
aspires to move. There can be no better index of the ideals
and aspirations of a nation than its Constitution. When we
turn to our Constitution, we find that it is a humane
document which respects the dignity of the individual and
The worth of the human person and directs every organ of
the State to strive for the fullest development of the per -
sonality of every individual. Undoubtedly, as already
pointed out above, our Constitution does contemplate death
penalty, and at the time when the Constitution came to be
enacted, death penalty for the offence of murder was on the
statute book, but the entire thrust of the Constitution is
in the direction of development of the full potential of
every citizen and the right to life alonggwith basic human
dignity is highly prized and cherished and torture and cruel
or in-human treatment or punishment which would be degrading
and destructive of human dignity are constitutionally
forbidden. Moreover, apart from the humanistic quintessence
of the Constitution, the thoughts, deeds and words of the
great men of this country provide the clearest indication of
the prevailing standards of human
decency. They represent the conscience of the nation and are
the most authentic spokesmen of its culture and ethos.
Mahatma Gandhi, the Father of the Nation wrote long ago in
the Harijan. "God alone can take life because He alone gives
it. He also said and this I may be permitted to emphasize
even at the cost of repetition: "Destruction of individuals
can never be a virtuous act. The evil doers cannot be done
to death . . Therefore all crimes including murder will have
to be treated as a disease." I have also quoted above what
Jai Prakash Narain said in his message to the Delhi
Conference against Death Penalty. The same humanistic
approach we find in the utterances of Vinoba Bhave. His
approach to the problem of dacoits in Chambal Valley and the
manner in which he brought about their surrender through
soulforce bear eloquent testimony to the futility of death
penalty and shows how even dacoits who have committed
countless murders can be reclaimed by the society. But, the
more important point is that this action of Vinoba Bhave was
applauded by the whole nation and Dr. Rajendra Prasad who
was then the President of India, sent the following telegram
to Binoba Bhave when he came to know that about 20 dacoits
from the Chambal region had responded to the Saint's appeal
to surrender .

"The whole nation looks with hope and admiration
upon the manner in which you have been able to rouse
the better instincts and moral sense, and thereby
inspire faith in dacoits which has led to their
voluntary surrender. Your efforts, to most of us, come
as a refreshing proof of the efficacy of the moral
approach for reforming the misguided and drawing the
best out of them. I can only pray for the complete
success of your mission and offer you my regards and
best wishes."

These words coming from the President of India who is the
Head of the nation reflect not only his own admiration for
the manner in which Vinoba Bhave redeemed the dacoits but
also the admiration of the entire nation and that shows that
what Vinoba Bhave did, had the approval of the people of the
country and the standards of human decency prevailing
amongst the people commended an approach favouring
reformation and rehabilitation of the dacoits rather than
their conviction for the various offences of murder com-
mitted by them and the imposition of death penalty on them.
More over, it is difficult to see bow death penalty can be
regarded as pro-
portionate to the offence of murder when legislatively it
has been A ordained that life sentence shall be the rule and
it is only in exceptional cases for special reasons that
death penalty may be imposed. It is obvious from the
provision enacted in section 354(3) of the -
Code of
Criminal Procedure
that death sentence is legislatively
regarded as disproportionate and excessive in most cases of
murder and it is only in exceptional cases what Sarkaria, J.
speaking on -. - behalf of the majority, describes as "the
rarest of rare" cases, that it can at all be contended that
death sentence is proportionate to the offence of murder.
But, then the legislature does not indicate as to what are
those exceptional cases in which death sentence may be
regarded as proportionate to the offence and, therefore,
reasonable and just. Merely because a murder is heinous or
horrifying, it cannot be said that death penalty is
proportionate to the offence when it is not so for a simple
murder. How does it become proportionate to the offence
merely because it is a 'murder most foul'.
I fail to
appreciate how it should make any difference to the penalty
whether the murder is a simple murder or a brutal one. A
murder is a murder all the same whether it is carried out
quickly and inoffensively or in a gory and gruesome manner.
If death penalty is not proportionate to the offence in the
former case, it is difficult to see how it can be so in the
latter. I may usefully quote in this connection the words of
Krishna Iyer, J. in
Rajendra Prasad
's case where the learned
Judge said;

"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 P . might have been a
tortured child, an ill-treated orphan, a jobless
starveling, a badgered brother, a wounded son, a tragic
person hardened by societal cruelty or vengeful
justice, - even a Hemlet or Parasurarna. He might have
been an - - angelic boy but thrown into mafia company
or inducted into dopes and drugs by parental neglect or
morally-ment-ally retarded or disordered. Imagine a
harijan village hacked 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. May be, the convict's poverty had
disabled his presentation of the social milieu or other
circumstances of extenuation in defence.. When life is
at stake, can such frolics of fortune play with
judicial , verdicts ?

"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 Anamma
(supra) has
hardened here. But 'murder most foul' is not the test,
speaking J- scientifically. The doer may be a patriot, a
revolutionary, a weak victim of an overpowering passion who,
given better a 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."

I agree with these observations of the learned Judge which
clearly show that death penalty cannot be regarded as
proportionate to the offence of murder, merely because the
murder is brutal, heinous or shocking. The nature and
magnitude of the offence or the motive and purposes
underlying it or the manner and extent of its commission
cannot have any relevance to the proportionality of death
penalty to the offence. It may be argued that though these
factors may not of themselves be relevant,. they may go to
show that the murderer is such a social monster, a
psychopath, that he cannot be reformed and he should
therefore be regarded as human refuse, dangerous to society,
and deserving to be hanged and in such a case death penalty
may legitimately be regarded as proportionate to the
offence. But I do not think this is a valid argument. It is
for reasons which I shall presently state, wholly untenable
and it has dangerous implications. I do not think it is
possible to hold that death penalty is, in any
circumstances, proportionate to the offence of murder.
Moreover, when death penalty does not serve any legitimate
social purpose, and this is a proportion which I shall
proceed to establish in the succeeding paragraphs,
infliction of mental and physical pain and suffering on the
condemned prisoner by sentencing him to death penalty cannot
but be regarded as cruel and inhuman and therefore arbitrary
and unreasonable.

I will now examine whether death penalty for the
offence of murder serves any legitimate social purpose.
There are three justi-
fications traditionally advanced in support of punishment in
general, namely, (1) reformation; (2) denunciation by the
community or retribution and (3) deterrence. These are the
three ends of punishment, its three penological goals, with
reference to which any punishment prescribed by law must be
justified. If it cannot be justified with reference to one
or the other of these three penological purposes, it would
have to be condemned as arbitrary and irrational, for in a
civilised society governed by the rule of law, no punishment
can be inflicted on an individual unless it serves some
social purpose. It is a condition of legality of a
punishment that it should serve a rational legislative
purpose or in other words, it should have a measurable
social effect. Let us therefore examine whether death
penalty for the offence of murder serves any legitimate and
of punishment.

It would be convenient first to examine the examine the
constutionality of death penalty with reference to the
reform tory end of punishment. The civilised goal of
criminal justice is the reformation of the criminal and
death penalty means abandonment of this goal for those who
suffer it. Obviously death penalty cannot serve the
reformatory goal because it extinguishes life and puts an
end to any possibility of reformation. In fact, it defeats
the reformatory end of punishment. But the answer given by
the protagonists of death penalty to this argument is that
though there may be a few murderers whom it may be possible
to reform and rehabilitate, what about those killers who
cannot be reformed and rehabilitated ? Why should the death
penalty be not awarded to them ? But even in their cases, I
am afraid, the argument cannot be sustained. There is no way
of accurately predicting or knowing with any degree of moral
certainty that a murderer will not be reformed or is
incapable of reformation. All we know is that there have
been many many successes even with the most vicious of
cases. Was Jean Valjean of Les Miserbles not reformed by the
kindness and magnanimity of the Bishop ? Was Valmiki a
sinner not reformed and did he not become the author of one
of the world's greatest epics ? Were the dacoits of Chambal
not transformed by the saintliness of Vinoba Bhave and Jai
Prakash Narain ? We have also the examples of Nathan
Leopold, Paul Crump and Edger Smith who were guilty of the
most terrible and gruesome murders but who, having escaped
the gallows, became decent and productive human beings.
These and many other examples clearly
show that it is not possible to know before hand with any
degree of cartainty that a murderer is beyond reformation.
Then would it be right to extinguish the life of a human
being merely on the basis of speculation and it can only be
speculation and not any definitive inference-that he cannot
be reformed. There is divinity in every man and to my mind
no one is beyond redemption. It was Ramakrishna Paramhansa,
one of the greatest saints of the last century, who said,
"Each soul is potentially divine". There is Brahman in every
living being, serve khalu idan bramh, as the Upanishad says
and to the same effect we find a remarkable utterance in the
Brahmasukta of Atharvaveda where a sage exclaims: "Indeed
these killers are Brahman; these servants (or slaves) are
Brahmaa; these cheats and rogues are also manifestation of
one and the same Brahman itself." Therefore once the dross
of Tamas is removed and satva is brought forth by methods of
rehabilitation such as community service, yoga, meditation
and sat sang or holy influence, a change definitely takes
place and the man is reformed. This .
is not just a fancy or
idealised view taken by Indian philosophical thought, but it
also finds Support from the report of the Royal Commission
on Capital Punishment set up in the United Kingdom where it
has been said: "Not that murderers in general are incapable
of reformation, the evidence plainly shows the contrary.
Indeed, as we shall see later" (in paragraphs 651-652) "the
experience of countries without capital punishment indicates
that the prospects of reformation are at least as favourable
with murderers as with those who have committed other kinds
of serious crimes." The hope of reforming even the worst
killer is based on exeperience as well as faith and to
legitimate the death penalty even in the so called
exceptional cases where a killer is said to be beyond
reformation, would be to destroy this hope by sacrificing it
at the altar of superstition and irrationality. I would not
therefore, speaking for myself, be inclined to recognise any
exception, though Justice Krishna Iyer has done so in

Rajendra Prasad
's case, that death panalty may be legally
permissible where it is found that a killer is such a
monster or beast that he can never be-reformed. Moreover, it
may be noted, as pointed out by Albert Camus, that in
resorting to this philosophy of elimination of social
monsters, we would be approaching some of the worst ideas of
totalitarianism or the selective racism which the Hitler
regime propounded. Sir Ernest Gowers, Chairman of the Royal
Commission on Capital Punishment also emphasized the
disturbing implications of this argument favouring
elimination of
a killer who is a social monster and uttered the following
warning A "If it is right to eliminate useless and dangerous
members of the community why should the accident of having
committed a capital offence determine who should be
selected. These ar. Only a tiny proportion and not
necessarily the most dangerous.... It can lead to Nazism."
This theory that a killer who is believed to be a social
monster or beast should be eliminated in defence of the
society cannot therefore be accepted and it cannot provide
a justification for imposition of death penalty even in this
narrow class of cases.

I will now turn to examine the constiutional validity
of death penalty with reference to the second goal of
punishment, namely, denunciation by the community or
retribution. The argument which is sometimes advanced in
support of the death penalty is that every punishment is to
some exetent intended to express the revulsion felt by the
society against the wrong doer and the punishment must,
therefore, be commensurate with the crime and since murder
is one of the gravest crimes against society, death penalty
is the only punishment which fits such crime and hence it
must he held to be reasonable. This argument is founded on
the denunciatory theory of punishment which apparently
claiming to justify punishment, as the expression of the
moral indignation of the society against the wrong doer,
represents in truth and reality an attempt to legitimise the
feeling of revenge entertained by the society against him.
The denunciatory theory was put forward as an argument in
favour of death penalty by Lord Denning before the Royal
Commission on Capital Punishment:

"The punishment inflicted for grave crimes should
adequately reflect the revulsion felt by the great
majority of citizens for them. It is a mistake to
consider the objects of punishment as being deterrent
or reformative or preventive and nothing else. The
ultimate justification of any punishment is not that it
is a deterrent but that it is the emphatic denunciation
by the community of a crime, and from this point of
view there are some murders which in the present state
of opinion demand the most emphatic denunciation of
all, namely, the death penalty.. The truth is that some
crimes are so outrageous that it, irrespective of
whether it is a deterrent or not."
The Royal Commission on Capital Punishment seemed to agree
with Lord Denning's view about this justification for the
death penalty and observed.".. 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." Though garbed in highly euphemistic language
by labelling the sentiment underlying this observation as
reprobation and not revenge, its implication can hardly be
disguised that the death penalty is considered necessary not
because the preservation of the society demands it, but
because the society wishes to avenge itself for the wrong
done to it. Despite its high moral tone and phrase, the
denunciatory theory is nothing but an echo of what Stephen
said in rather strong language: "The criminal law stands to
the passion of revenge in much the same relation as marriage
to the sexual appetite." The denunciatory theory is a
remnant of a primitive society which has no respect for the
dignity of man and the worth of the human person and seeks
to assuage its injured conscience by taking revenge on the
wrong doer. Revenge is an elementary passion of a brute and
betrays lack of culture and refinement. The manner in which
a society treats crime and criminals affords the surest
index of its cultural growth and development. Long ago in
the year 1910 Sir Winston Churchill gave expression to this
social truth when he said in his inimitable language:

"The mood and temper of the public with regad to
the treatment of crime and the criminals is one of the
most unfailing tests of civilization of any country. A
calm dispassionate recognition of the right of accused,
and even of the convicted, criminal against the State,
a constant heart searching by all charged with the duty
of punishment tireless efforts towards the discovery of
curative and , regenerative processes, unfailing faith
that there is a treasure if you can only find it in the
heart of every man-these are the symbols, which, in
treatment of crime and the criminals, mark and measure
the stored-up strength of a nation and are sign and
proof of the living virtue in it.-

A society which is truly cultured-a society which is reared
on a spiritual foundation like the Indian society-can never
harbour a
feeling of revenge against a wrong doer. On the contrary,
it would A try to reclaim the wrong doer and find the
treasure that is in his heart. The wrong doer is as much as
part of the society as anyone else and by exterminating him,
would the society not injure itself ? If a limb of the human
body becomes diseased, should we not try to cure it instead
of amputating it ? Would the human body not be partially
disabled: would it not be rendered imperfect by the .
amputation ? Would the amputation not leave a scar on the
human body ? Would the human body not cease to be what it
was intended by its maker? But if the diseased limb can be
cured, would it not be so much better that the human body
remains intact in all its perfection. Similarly the society
also would benefit if one of its members who has gone astray
and done some wrong can be reformed and regenerated. It will
strengthen the fabric of the society and increase its inner
strength and vitality. Let it not be forgotten that no human
being is beyond redemption. There is divinity in every human
being, if only we can create conditions in which it can
blossom forth in its full glory, and effulgence. It can
dissolve the dross of criminality and make God out of man.
"Each soul", said Shri Ramakrishna Paramhansa, "is
potentially divine" and it should be the endeavour of the
society to reclaim the wrong doer and bring out the divinity
J in him and not to destroy him in a fit of anger or
revenge. Retaliation can have no place in a civilised
society and particularly in the Land of Buddha and Gandhi.
The law of Jesus must prevail over the lex tallionis of
Moses, "Thou shalt not kill" must penologically over power
"eye for an eye and tooth for a tooth." The society has made
tremendous advance in the last few decades and today the
concept of human rights has taken firm root in our soil and
there is a tremendous wave of consciousness in regard to the
dignity and divinity of man. To take human life even with
the sanction of the law and under the cover of judicial
authority, is retributive barbarity and violent futility:

travesty of dignity and violation of the divinity of man. So
lang as the offender can be reformed through the
rehabilitatory therapy which may be administered to him in
the prison or other correctional institute and he can be
reclaimed as a useful citizen and made conscious of the
divinity within him by techniques such as meditation, how
can there be any moral justification for liquidating him out
of existence ? In such a case, it would be most unreasonable
and arbitrary to extinguish the flame of life within him,
for no social purpose would be served and no consti-
tutional value advanced by doing so. I have already pointed
out that death penalty runs counter to the reformatory
theory of punishment and I shall presently discuss the
deterrent aspect of death penalty and show that death
penalty has not greater deterrent effect than life
imprisonment. The only ground on which the death penalty may
therefore be sought to be justified is reprobation which as
already pointed out, is nothing but a different name for
revenge and retaliation. But in a civilised society which
believes in the dignity and worth of the human person, which
acknowledges and protects the right to life as the most
precious possession of mankind, which recognises the
divinity in man and describes a his kind as "Amaratsaya
Putra" that is "children of Immortality", it is difficult to
appreciate now retaliatory motivation can ever be
countenanced as a justificatory reason. This reason is
wholly inadequate since it does not justify punishment by
its results, but it merely satisfies the passion for revenge
masquerading as righteousness.

I may point that in holding this view I am not alone,
for I find that most philosophers have rejected retribution
as a proper goal of punishment. Plato wrote:
"He who desires to inflict rational punishment
does not retaliate for a past wrong which cannot be
undone; he has regard to the future, and is desirous
that the man who is punished, and he who sees him
punished, may be deterred from doing wrong again. He
punishes for the sake of prevention...."

Even in contemporary America, it is firmly settled that
retribution has no proper place in our criminal system. The
New York Court of Appeals pointed out in a leading judgment
in People v. Oliver:

"The punishment or treatment of offenders is
directed toward one or more of three ends: (I) to
discourage and act as a deterrent upon future criminal
activity. (2) to confine the offender so that he may
not harm society; and (3) to correct and rehabilitate
the offender. There is no
place in the scheme for punishment for its own sake,
the product simply of vengeance or retribution."

Similarly, the California Supreme Court has held that "to
conclude that the Legislature was motivated by a desire for
vengeance" would be "a conclusion not permitted in view of
modern theories of penology."

The same view has been adopted in official studies of
capital punishment. The British Royal Commission on Capital
Punishment concluded that "modern penological thought
discounts retribution in the sense of vengeance. "The
Florida Special Commission on capital punishment, which
recommended retention of the death penalty on other grounds,
rejected "vengeance or retaliation" as justification for the
official taking of life."

The reason for the general rejection of retribution as
a purpose of the criminal system has been stated concisely
by Professors Michael and Wechsler:

"Since punishment consists in the infliction of
pain it is, apart from its consequence, an evil:

consequently it is good and therefore just only if and
to the degree that it serves the common good by
advancing the welfare of the person punished or of the
rest of the population-Retribution is itself unjust
since it requires some human beings to inflict pain
upon others, regardless of its effect upon them or upon
the social welfare."

The Prime Minister of Canada Mr. Pierre Trudeaux, addressing
the Canadian Parliament, pleading for abolition of death
penalty, posed a question in the same strain:

"Are we as a society so lacking in respect for
ourselves, so lacking in hope for human betterment, so
socially bankrupt that we are ready to accept state
vengeance as our penal philosophy"

It is difficult to appreciate how a feeling of vengeance
whether on the individual wronged or the society can ever be
regarded as a healthy sentiment which the State should
foster. It is true that when a heinous offence is committed
not only the individual who suffers
as a result of the crime but the entire society is oppressed
with a feeling of revulsion, but as Arthur Koestler has put
it in his inimitable style in his "Reflections on Hanging":

"Though easy to dismiss in reasoned argument on
both moral and logical grounds, the desire for
vengeance has deep, unconscious roots and is roused
when we feel strong indignation or revulsion-whether
the reasoning mind approves or not. This psychological
fact is largely ignored in abolitionist propaganda-yet
it has to be accepted as a fact. The admission that
even confirmed abolitionists are not proof against
occasional vindictive impulses does not mean that such
impulses should be legally sanctioned by society, any
more than we sanction some other unpalatable instincts
of our biological inheritance. Deep inside every
civilized being there lurks a tiny Stone Age man,
dangling a club to robe and rape, and screaming an eye
for an eye. But we would rather not have that little
fur-clad figure dictate the law of the land."

I have no doubt in my mind that if the only justification
for the death penalty is to be found in revenge and
retaliation, it would be clearly arbitrary and unreasonable
punishment falling foul of
Articles 14
and
21.

I must then turn to consider the deterrent effect of
death penalty, for deterrence is undoubtedly an important
goal of punishment.

The common justification which has been put forward on
behalf of the protagonists in support of capital punishment
is that it acts as a deterrent against potential murderers.
This is, to my mind, a myth, which has been carefully
nurtured by a society which is actuated not so much by logic
or reason as by a sense of retribution. It is really the
belief in retributive justice that makes the death penalty
attractive but those supporting it are not inclined to
confess to their instinct for retribution but they try to
bolster with reasons their unwillingness to abandon this
retributive instinct and seek to justify the death penalty
by attribution to it a deterrent effect. The question
whether the death penalty has really and truly
a deterrent effect is an important issue which has received
careful attention over the last 40 years in several
countries including the United States of America. Probably
no single subject in criminology has been studied more.
Obviously, no penalty will deter all murders and probably
any severe penalty will deter many. The key question
therefore is not whether death penalty has a deterrent
effect but whether death penalty has a greater deterrent
effect than life sentence. Does death penalty deter
potential murderers better than life imprisonment ? I shall
presently consider this question but before I do so let me
repeat that the burden of showing that death penalty is not
arbitrary and unreasonable and serves a legitimate
penological goal is on the State. I have already given my
reasons for taking this view on principle but I find that
the same view has also been taken by the Supreme Judicial
Court of Massachusettes in "Commonwealth v. O'Neal (No.2)(1)
where it has been held that because death penalty impinges
on the right to life itself, the onus lies on the State to
show a compelling State interest to justify capital
punishment and since in that case the State was unable to
satisfy this onus, the Court ruled that death penalty for
murder committed in the course of rape or attempted rape was
unconstitutional. The Supreme Judicial Court of
Massachusttes also reiterated the same view in opinion of
the Justices 364 N.E. 2d 184 while giving its opinion
whether a Bill before the House of Representatives was
compatible with
Article 26
of the Constitution which
prohibits cruel or unusual punishment. The majority Judges
stated hat
Article 26 "
forbids the imposition of a death
penalty in this Commonwealth in the absence of a showing on
the part of the Commonwealth that the availability of that
penalty contributes more to the achievement of a legitimate
State purpose-for example, the purpose of deterring criminal
conduct than the availability in like cases of the penalty
of life imprisonment." It is therefore clear that the burden
rests on the State to establish by producing material before
the Court or otherwise, that death penalty has greater
deterrent effect than life sentence in order to justify its
imposition under the law. If the State fails to discharge
this burden which rests upon it, the Court would have to
hold that death penalty has not been shown to have greater
deterrent effect and it does not therefore serve a rational
legislative purpose.
The historical course through which death penalty has
passed in the last 150 years shows that the theory that
death penalty acts as a greater deterrent than life
imprisonment is wholly unfounded. Not more than a century
and a half ago, in a civilised country like England, death
penalty was awardable even for offences like shop lifting,
cattle stealing and cutting down of trees. It is interesting
to note that when Sir Samuel Romully brought proposals for
abolition of death penalty for such offences, there was a
hue and cry from lawyers, judges, Parliamentarians and other
so called protectors of social order and they opposed the
proposals on the grounds that death penalty acted as a
deterrent against commission of such offences and if this
deterrent was removed, the consequences would be disastrous.
The Chief Justice said while opposing abolition of capital
punishment for shop-lifting:

"Where terror of death which now, as the law
stood, threatened the depredator to be removed, it was
his opinion the consequence would be that shops would
be liable to unavoidable losses from depredations and,
in many instances, bankruptcy and ruin must become the
lot of honest and laborious tradesmen. After all that
had been said in favour of this speculative humanity,
they must all agree that the prevention of crime should
be the chief object of the law; and terror alone would
prevent the com mission of that crime under their
consideration."

and on a similar Bill, the Lord Chancellor remarked:

"So long as human nature remained what it was, the
apprehension of death would have the most powerful co
operation in deterring from the commission of crimes;
and he thought it unwise to withdraw the salutary
influence of that terror."

The Bill for abolition of death penalty for cutting down a
tree was opposed by the Lord Chancellor in these terms:

"It did undoubtedly seem a hardship that so heavy
a punishment as that of death should be affixed to the
cutting down of a single tree, or the killing or
wounding of a cow.
But if the Bill passed in its present state a person
might root up or cut down whole acres of plantations or
destroy the whole of the stock of cattle of a farmer
without being subject to capital punishment."

Six times the House of Commons passed the Bill to abolish
capital punishment for shop lifting and six times the House
of Lords threw out the Bill, the majority of one occasion
including all the judicial members, one Arch Bishop and six
Bishops. It was firmly believed by these opponents of
abolition that death penalty acted as a deterrent and if it
was abolished, offences of shop-lifting etc would increase.
But it is a matter of common knowledge that this belief was
wholly unjustified and the abolition of death penalty did
not have any adverse effect on the incidence of such
offences. So also it is with death penalty for the offence
of murder. It is an irrational belief unsubstantiated by any
factual data or empirical research that death penalty acts
as a greater deterrent than life sentence and equally
unfounded is the impression that the removal of death
penalty will result in increase of homicide. The argument
that the rate of homicide will increase if death penalty is
removed from the statute book has always been advanced by
the established order out of fear psychosis, because the
established order has always been apprehensive that if there
is any change and death penalty is abolished, its existence
would be imperilled. This argument has in my opinion no
validity because, beyond a superstitious belief for which
there is no foundation in fact and which is based solely on
unreason and fear, there is nothing at all to show that
death penalty has any additionally deterrent effect not
possessed by life sentence. Arthur Koestler tells us an
interesting story that in the period when pick-pockets were
punished by hanging in England, other thieves exercised
their talents in the crowds sorrounding the scaffold where
the convicted pick-pocket was being hanged. Statistics
compiled during the last 50 years in England show that out
of 250 men hanged, 170 had previously attended one or even
two public executions and yet they were not deterred from
committing the offence of murder which ultimately led to
their conviction and hanging. It is a myth nurtured by
superstition and fear that death penalty has some special
terror for the criminal which acts as a deterrent against
the commission of the crime. Even an eminent judge like
Justice Frank Furter of the Supreme Court of the United
States expressed the same opinion when he said in the course
of his
examination before the Royal Commission on Capital
Punishment:

"I think scientifically the claim of deterrence is
not worth much."

The Royal Commission on Capital Punishment, after four years
of investigation which took it throughout the continent and
even to the United States, also came to the same conclusion:

"Whether the death penalty is used or not and
whether executions are frequent or not, both death
penalty states and abolition states show rates which
suggests that these rates are conditioned by other
factors than the death penalty."

and then again, it observed in support of this conclusion:

"The general conclusion which we have reached is
that there is no clear evidence in any of the figures
we have examined that the abolition of capital
punishment has led to an increasing homicide rate or
that its reintroduction has led to a fall."

Several studies have been carried out in the United States
of America for the purpose of exploring the deterrent effect
of death penalty and two different methods have been
adopted. The first and by far the more important method
seeks to prove the case of the abolitionists by showing that
the abolition of capital punishment in other countries has
not led to an increase in the incidence of homicide. This is
attempted to be shown either by comparing the homicide
statistics of countries where capital punishment has been
abolished with the statistics for the same period of
countries where it has been retained or by comparing
statistics of a single country in which capital punishment
has been abolished, for periods before and after abolition
or where capital punishment has been reintroduced, then for
the period before and after its reintroduction. The second
method relates to comparison of the number of executions in
a country in particular years with the homicide rate in the
years succeeding. Now, so far as the comparison of homicide
statistics of countries which have abolished capital
punishment with the statistics of countries which have
retained it, is concerned, it may not yield any definitive
inference, because in most cases abolition or retention of
death
penalty may not be the only differentiating factor but there
may be other divergent social, cultural or economic factors
which may affect the homicide rates. It is only if all other
factors are equal and the only variable is the existence or
non-existence of death penalty that a proper comparison can
be made for the purpose of determining whether death penalty
has an additional deterrent effect which life sentence does
not possess, but that would be an almost impossible
controlled experiment. It may however be possible to find
for comparison a small group of countries or States,
preferably contiguous and closely similar in composition of
population and social and economic conditions generally, in
some of which capital punishment has been abolished and in
others not. Comparison of homicide rates in these countries
or States may afford a fairly reliable indication whether
death penalty has a unique deterrent effect greater than
that of life sentence. Such groups of States have been
identified by Professor Sellin in the United States of
America and similar conditions perhaps exist also in
Newzealand and the Australian States. The figures of
homicide rate in these States do not show any higher
incidence of homicide in States which have abolished death
penalty than in those which have not. Professor Sellin
points out that the only conclusion which can be drawn from
these figures is that there is no clear evidence . Of any
influence of death penalty on the homicide rates of these
States. In one of the best known studies conducted by him,
Professor Sellin compared homicide rates between 1920 and
1963 in abolition States with the rates in neighboring and
similar retention States. He found that on the basis of the
rates alone, it was impossible to identify the abolition
States within each group. A similar study comparing homicide
rates in States recently abolishing the death penalty and
neighboring retention States during the 1960's reached the
same results. Michigan was the first State in the United
States to abolish capital punishment and comparisons between
Michigan and the bordering retention states of Ohio and
Indiana States with comparable demographic characteristics
did not show any significant differences in homicide rates.
Professor Sellin therefore concluded: "You cannot tell from
.... the homicide rates alone, in contiguous, which are
abolition and which are retention states; this indicates
that capital crimes are dependent upon factors other than
the mode of punishment."

Students of capital punishment have also studied the
effect of abolition and reintroduction of death penalty upon
the homicide
rate in a single state. If death penalty has a significant
deterrent effect? abolition should produce a rise in
homicides apart from the general trend and reintroduction
should produce a decline. After examining statistics from 11
states, Professor Sellin concluded that "there is no
evidence that the abolition of capital punishment generally
causes an increase in criminal homicides, or that its
reintroduction is followed by a decline. The explanation of
changes in homicide rates must be sought elsewhere."

Some criminologists have also examined the short term
deterrent effects of capital punishment. One study compared
the number of homicides during short periods before and
after several well-publicized executions during the twenties
and thirties in Philadelphia. It was found that there were
significantly more homicides in the period after the
executions than before-the opposite of what the deterrence
theory would suggest other studies have also shown that in
those localities where capital punishment is carried out,
the incidence of homicide does not show any decline in the
period immediately following well-publicized executions
when, if death penalty had any special deterrent effect,
such effect would be greatest. Sometimes, as Bowers points
out in his book on "Executions in America" the incidence of
homicide is higher. In short, there is no correlation
between the ups and downs of the homicide rate on the one
hand and the presence or absence of the death penalty on the
other.

I may also refer to numerous other studies made by
jurists and sociologists in regard to the deterrent effect
of death penalty Barring only one study made by Ehrlich to
which I shall presently refer, all the other studies are
almost unanimous that death penalty has no greater deterrent
effect than life imprisonment. Dogan D. Akman, a Canadian
Criminologist, in a study made by him on the basis of data
obtained from the records of all Canadian penitentiaries for
the years 1964 and 1965 observed that the threat of capital
punishment has little influence on potential assaulters. So
also on the basis of comparison of homicide and execution
rates between Queensland and other Australian States for the
period 1860-1920, Barber and Wilson concluded that the
suspension of capital punishment from 1915 and its abolition
from 1922 in Qneensland did not have any significant effect
on the murder rate. Chambliss, another Criminologist, also
reached the same conclusion in his Article on "Types of
Deviance and the Effectiveness of Legal Sanctions" (1967)
Wisconsin
Law Review 703 namely, that "given the preponderance of evi-
dence, it seems safe to conclude that capital punishment
does not act as an effective deterrent to murder." Then we
have the opinion of Fred J. Cook who says in his Article on
"Capital Punishment: Does it Prevent Crime ?" that
"abolition of the death penalty may actually reduce rather
than encourage murder." The European Committee on Crime
Problems of the Council of Europe gave its opinion on the
basis of data obtained from various countries who are
Members of the Council of Europe that these data did not
give any "positive indication regarding the value of capital
punishment as a deterrent". I do not wish to burden this
judgment with reference to all the studies which have been
conducted at different times in different parts of the world
but I may refer to a few of them, namely "Capital Punishment
as a Deterrent to Crime in Georgia" by Frank Gibson, "The
Death Penalty in Washington State" by Hayner and Crannor,
Report of the Massachusett Special Commission Relative to
the Abolition of the Death Penalty in Capital Cases, "The
use of the Death Penalty-Factual Statement" by Walter
Reckless, "Why was Capital Punishment resorted in Delaware"

by Glenn W. Samuelson, "A Study in Capital Punishment" by
Leonard o. Savitz, "The Deterrent Influence of the Death
Penalty" by Karl F. Schuessler, "Murder and the Death
Penalty" by E.H. Sutherland, "Capital Punishment: A case for
Abolition" by Tidmarsh, Halloran and Connolly, "Can the
Death Penalty Prevent Crime" by George B. Vold and "Findings
on Deterrence with Regard to Homicide" by Wilkens and
Feyerherm. Those studies, one and all, have taken the view
that "statistical findings and case studies converge to
disprove the claim that the death penalty has any special
deterrent value" and that death penalty "fails as a
deterrent measure". Arthur Koestler also observes in his
book on "Reflections on Hanging" that the figures obtained
by him from various jurisdictions which have abolished
capital punishment showed a decline in the homicide rate
following abolition. The Report made by the Department of
Economic and Social Affairs of the United Nations also
reaches the conclusion that "the information assembled
confirms the now generally held opinion that the abolition
or ..suspension of death penalty does not have the immediate
effect of appreciably increasing the incidence of crime."

These various studies to which I have referred clearly
establish beyond doubt that death penalty does not have any
special deterrent effect which life sentence does not posses
and that in any event there is no evidence at all to suggest
that death penalty has any such special deterrent effect.
There is unfortunately no empirical study made in India
to assess, howsoever imperfectly, the deterrent effect of
death penalty. But we have the statistics of the crime of
murder in the former States of Travancore and Cochin during
the period when the capital punishment was on the statute
book as also during the period when it was kept in abeyance.
These figures have been taken by me from - the Introduction
of Shri Mohan Kumar Mangalam to the book entitled "Can the
State Kill its Citizen" brought out by Shri Subramaniam:

Statistics of murder cases during the period when Capi-
tal Punishment was kept in abeyance.

Year Travancore Cochin Total for Travan-
core & Cochin
1945 111 cases 22 133
1946 135 cases 13 148
1947 148-cases 26 174
1948 160 cases 43 203
1949 114 cases 26 140
1950 125 cases 39 164
Total 793 169 962

Statistics of murder cases during the period when capi-
tal punishment was in vogue.

1951 141 cases 47 188
1952 133 cases 32 165
1953 146 cases 54 200
1954 114 cases 57 171
1955 99 cases 30 129
1956 97 cases 17 114
Total 730 237 967
These figures show that the incidence of the crime murder
did not A increase at all during the period of six years
when the capital punishment was in abeyance. This is in line
with the experience of ether countries where death penalty
has been abolished.

I must at this stage refer to the study carried out by
Ehrlich on which the strongest reliance has been placed by
Sarkaria, J. in the majority judgment. Ehrlich was the first
to introduce regression analysis in an effort to isolate the
death penalty effect, if it should exist, uncontaminated by
other influences on the capital crirme rate. His paper was
catapulated into the centre of legal attention even before
it was published, when the Solicitor General of the United
States cited it in laudatory terms in his brief in Fowler v.
North Cerolina(l) and delivered copies of it to the court.
The Solicitor General called it an "important empirical
support for the a priori logical belief that use of the
death penalty decrease the number of murders." In view of
the evidence available upto that time, Ehrlich's claim was
indeed formidable both in substance and precision. The
conclusion he reached was: "an additional execution per -
year.. may have resulted in . seven or eight fewer murders."
The basic data from which he derived this conclusion were
the executions and the homicide rates as recorded in the
United States during the years 1933 to 1969, the former
generally decreasing, the latter, especially during the
sixties, sharply increasing. Ehrlich considered
simultaneously with the execution and homicide rates, other
variables that could affect the capital crime rate and
sought to isolate the effect of these variables through the
process of regression analysis. It is not necessary for the
purpose of the present judgment to explain this process of
mathematical purification or the various technical
refinements of this process, but it is sufficient to point
out that the conclusion reached by Ehrlich was that death
penalty had a greater - deterrent effect than the fear of
life imprisonment. Ehrlich's study because it went against
all the hitherto available evidence, received extra ordinary
attention from the scholarly community.

First, Peter Passell and John Taylor attempted to
replicate Ehrlich's findings and found that they stood
scrutiny only under an unusually restrictive set of
circumstances. They found, for example that the appearance
of deterrence is produced only when
the regression equation is in logarathmic form and in the
more conventional linear regression frame work, the
deterrent effect disappeared. They also found that no such
effect emerged when data for the years after 1962 were
omitted from the analysis and only the years 1953-61 were
considered. Kenneth Avio of the University of Victoria made
an effort to replicate Ehrlich's findings from Canadian
experience but that effort also failed and the conclusion
reached by the learned jurist was that "the evidence would
appear to indicate that Canadian offenders over the period
1926-60 did not behave in a manner consistent with an
effective deterrent effect of capital punishment." William
Bowers and Glenn Pierce also made an attempt to replicate
Ehrlich's results and in replicating Ehrlich's work they
confirmed the Passel-Taylor findings that Ehrlich's results
were extremely sensitive as to whether the logarithmic
specification was used and whether the data for the latter
part of 1960's were included. During 1975 the Yale Law
Journal published a series of Articles reviewing the
evidence on the deterrent effect of death penalty and in the
course of an Article in this series, Ehrlich defended his
work by addressing himself to some of the criticism raised
against his study. Hans Zeisel, Professor Emeritus of Law
and Sociology in the University of Chicago points out in his
article on The deterrent effect of death penalty; Facts v.
Faith that in this article contributed by him to the Yale
Law Journal, Ehrlich did refute some criticisms but the
crucial ones were not met. Ehrlich in this Article referred
to a second study made by him, basing it this time on a
comparison by States for the years 1940 and 1950. He claimed
that this study bolstered his original thesis but conceded
that his findings were "tentative and inconclusive". In the
mean time Passell made a State-by-State comparison for the
years 1950 and 1960 and as a result of his findings,
concluded that "we know of no reasonable way of interpreting
the cross sections (i.e. State-by State) data that would
lend support to the deterrence hypothesis."

A particularly extensive review of Ehrlich's time
series analysis was made by a team led by Lawrence Klein,
President of the American Economic Association. The authors
found serious methodological problems with Ehrlich's
analysis. They raised questions about his failure to
consider the feedback effect of crime on the economic
variables in his model, although he did consider other
feedback effects in his analysis. They found some of
Ehrlich's technical manipulations to be superfluous and
tending to obscure the accuracy of his estimates. They, too,
raised questions about
variables omitted from the analysis, and the effects of
these omissions on the findings.

Like Passell-Taylor and Bowers-Pierce, Klein and his
collaborators replicated Ehrlich's results, using Ehrlich's
own data which by that time he had made available. As in
previous replications, Ehrlich's results were found to be
quite sensitive to the mathematical specification of the
model and the inclusion of data at the recent end of the
time series.

By this time, Ehrlich's model had been demonstrated to
be peculiar enough. Klein went on to reveal further
difficulties. One was that Ehrlich's deterrence finding
disappeared after the introduction of a variable rejecting
the factors that caused other crimes to increase during the
latter part of the period of analysis. The inclusion of such
a variable would seem obligatory not only to substitute for
the factors that had obviously been omitted but also to
account for interactions between the crime rate and the
demographic characteristics of the population.

Klein also found Ehrlich's results to be affected by an
unusual construction of the execution rate variable, the
central determinant of the analysis. Ehrlich constructed
this variable by using three other variables that appeared
elsewhere in his regression model: the estimated homicide
arrest rate the estimated homicide conviction rate, and the
estimated number of homicides. Klein showed that with this
construction of the execution rate, a very small error in
the estimates of any of these three variables produced
unusually strong spurious appearances of a deterrent effect.
He went on to show that the combined effect of such slight
errors in all three variables was likely to be considerable,
and that in view of all these considerations, Ehrlich's
estimates of the deterrent effect were so weak that they
"could be regarded as evidence.. (of) a counter deterrent
effect of capital punishment." In view of these serious
problems with Ehrlich's analysis, Klein concluded: "We see
too many plausible explanations for his finding a deterrent
effect other than the theory that capital punishment deters
murder" and further observed: "Ehrlich's results cannot be
used at this time to pass judgment on the use of the death
penalty."

This is the analysis of the subsequent studies of
Passell and Taylor, Bowers and Pierce and Klein and his
colleagues made by Hans
Zeisel in his Article on "The deterrent effect of the Death
Penalty: Facts v. Faith". These studies which were
definitely more scientific and refined than Ehrlich's
demolish to a large extent the validity of the conclusion
reached by Ehrlich and establish that death penalty does not
possess an additional deterrent effect which life sentence
does not. But, according to Hans Zeisel, the final blow to
the work of Ehrlich came from a study of Brian Forst, one of
Klein's collaborators on the earlier study. Since it had
been firmly established that the Ehrlich phenomenon, if it
existed emerged from developments during the sixties, Forst
concentrated on that decade. He found a rigorous way of
investigating whether the ending of executions and the sharp
increase in homicides during this period was casual or
coincidental. The power of Forst's study derives from his
having analysed changes both over time and across
jurisdictions. The aggregate United States time series data
Ehrlich used were unable to capture important regional
differences. Moreover, they did not vary as much as cross-
state observations, hence they did not provide as rich an
opportunity to infer the effect of changes in executions on
homicides. Forst's analysis, according to Hans Zeisel, was
superior to Ehrlich's and it led to a conclusion that went
beyond that of Klein. "The findings" observed Forst "give no
support to the hypothesis that capital punishment deters
homicide" and added: "our finding that capital punishment
does not deter homicide is remarkably robust with respect to
a wide range of alternative constructions." It will thus be
seen that The validity of Ehrlich's study which has been
relied upon very strongly by Sarkaria J. in the majority
judgment is considerably eroded by the studies carried out
by leading criminologists such as Passell and Taylor, Bowers
and Pierce, Klein and his colleagues and Forst and with the
greatest respect, I do not think that Sarkaria, J. speaking
on behalf of the majority was right in placing reliance on
that study. The validity, design and findings of that study
have been thoroughly discredited by the subsequent studies
made by these other econometricians and particularly by the
very scientific and careful study carried out by Forst. I
may point out that apart from Ehrlich's study there is not
one published econometric analysis which supports Ehrlich's
results.

I may also at this stage refer once again to the
opinion expressed ed by Professor Sellin. The learned
Professor after a serious and thorough study of the entire
subject in the United States on behalf
of the American Law Institute stated his conclusion in these
terms:

"Any one who carefully examines the above data is
bound to arrive at the conclusion that the
death penalty as we use it exercises no influence
on the extent or fluctuating rate of capital
crime. It has failed as a deterrent.

(Emphasis supplied.)
So also in another part of the world very close to our
country, a Commission of Inquiry on capital punishment was
appointed by late Prime Minister Bhandarnaike of Shri Lanka
and it reported:

"If the experience of the many countries which
have suspended or abolished capital punishment is taken
into account, there is in our view cogent evidence of
the unlikelihood of this 'hidden protection'...It is,
therefore, our view that the statistics of homicide in
Ceylon when related to the social changes since the
suspension of the death penalty in Ceylon and when
related to the experience of other countries tend to
disprove the assumption of the uniquely deterrent
effect of the death penalty, and that in deciding on
the question of reintroduction or abolition of the
capital punishment reintroduction cannot be justified
on the argument that it is a more effective deterrent
to potential killers than the alternative or protracted
imprisonment."

It is a strange irony of fate that Prime Minister
Bhandarnaike who suspended the death penalty in Sri Lanka
was himself murdered by a fanatic and in the panic that
ensued death penalty was reintroduced in Sri Lanka.

The evidence on whether the threat of death penalty has
a deterrent effect beyond the threat of life sentence is
therefore overwhelmingly on one side. Whatever be the
measurement yardstick adopted and howsoever sharpened may be
the analytical instruments they have not been able to
discover any special deterrent effect. Even regression
analysis, the most sophisticated of these instruments after
careful application by the scholarly community, has failed
to detect special deterrent effect in death penalty which is
not to be found in life imprisonment. One answer which the
protagonists of
capital punishment try to offer to combat the inference
arising from these studies is that one cannot prove that
capital punishment does not deter murder because people who
are deterred by it do not report good news to their police
departments. They argue that there are potential murderers
in our midst who would be deterred from killing by the death
penalty, but would not be deterred by life imprisonment and
there is no possible way of knowing about them since these
persons do not commit murder and hence are not identified.
Or to use the words of Sarkaria, J. "Statistics of deterred
potential murderers are difficult to unravel as they remain
hidden in the innermost recesses of their mind." But this
argument is plainly a unsound and cannot be sustained. It is
like saying, for example, that we have no way of knowing
about traffic safety because motorists do not report when
they are saved from accidents by traffic safety programmes
or devices. That however cannot stop us from evaluating the
effectiveness of those programmes and devices by studying
their effect on the accident rates where they are used for a
reasonable time. Why use a different standard for evaluating
the death penalty, especially when we can measure its
effectiveness by comparing homicide rates between countries
with similar social and economic conditions in some of which
capital punishment has been abolished and in others not or
homicide rates in the same country where death penalty has
been abolished or subsequently reintroduced. There is no
doubt that if death penalty has a special deterrent effect
not possessed by life imprisonment, the number of those
deterred by capital punishment would appear statistically in
the homicide rates of abolitionist jurisdictions but
according to all the evidence gathered by different studies
made by jurists and criminologists, this is just not to be
found.

The majority speaking through Sarkaria, J. has observed
that "in most of the countries of the world including India,
a very large segment of the population including noteable
penologists, Judges, jurists, legislators and other
enlightened people believe that death penalty for murder and
certain other capital offences does serve as a deterrent and
a greater deterrent than life imprisonment." I do not think
this statement represents the correct factual position. It
is of course true that there are some penologists, judges,
jurists, legislators and other people who believe that death
penalty acts as a greater deterrent but it would not be
correct to say that they form a large segment of the
population. The enlightened opinion in the world,
as pointed out by me, is definitely veering round in favour
of A abolition of death penalty. Moreover, it is not a
rational conviction but merely an unreasoned belief which is
entertained by some people including a few penologists,
judges, jurists and legislators that death penalty has a
uniquely deterrent effect. When you ask these persons as to
what is the reason why they entertain this belief, they will
not be able to give any convincing answer beyond stating
that basically every human being dreads death and therefore
death would naturally act as a greater deterrent than life
imprisonment. That is the same argument advanced by Sir
James Fitz James Stephen, the draftsman of the
Indian Penal
Code
in support of the deterrent effect of capital
punishment. That great Judge and author said in his Essay on
Capital Punishment:

"No other punishment deters men 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 of producing some results.... 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 a commutation of a
sentence for a severest secondary punishment ? Surely
not. Why is this ? It can only be because 'all that a
man has will be given for his life'. In any secondary
punishment, however terrible, there is hope, but death
is death; its terrors - cannot be described more
forcibly."

The Law Commission in its thirty-fifth report also
relied largely on this argument for taking the view that
"capital punishment does act as a deterrent." It set out the
main points that weighed with it in arriving at this
conclusion and the first and foremost amongst them was that:

"Basically every human being dreads death", suggesting that
death penalty has therefore a greater deterrent effect than
any other punishment. But this argument is not valid and a
little scrutiny will reveal that it is wholly unfounded. In
the first place,
even Sir James Fitz James Stephen concedes that the
proposition that death penalty has a uniquely deterrent
effect not possessed by any other punishment, is one which
is difficult to prove, though according to him it is Self-
evident. Secondly, there is a great fallacy underlying the
argument of Sir James Stephen and the Law Commission. This
argument makes no distinction between a threat of certain
and imminent punishment which faces the convicted murderer
and the threat of a different problematic punishment which
may or may not influence a potential murderer Murder may be
unpremeditated under the stress of some sudden outburst of
emotion or it may be premeditated after planning and
deliberation. Where the murder is unpremeditated, as for
example, where it is the outcome of a sudden argument or
quarrel or provocation leading to uncontrollable anger or
temporary imbalance of the mind-and most murders fall within
this category-any thought of possibility of punishment is
obliterated by deep emotional disturbance and the penalty of
death can no more deter than any other penalty. Where murder
is premeditated it may either be the result of lust,
passion, jealousy hatred frenzy of frustration or it may be
a cold calculated murder for monetary or other
consideration. The former category of murder would conclude
any possibility of deliberation or a weighing of
consequences, the thought of the likelihood of execution
after capture, trial and sentence would hardly enter the
mind of the killer. So far as the latter category of murder
is concerned, several considerations make it unlikely that
the death penalty would play any significant part in his
thought. Since both the penalties for murder, death as well
as life sentence, are so severe as to destroy the future of
any one subjected to them, the crime would not be committed
by a rational man unless he thinks that there is little
chance of detection. What would weigh with him in such a
case is the uncertainty of detection and consequent
punishment rather than the nature of punishment. It is not
the harshness or severity of death penalty which acts as a
deterrent. A life sentence of twenty years would act as an
equally strong deterrent against crime as death penalty,
provided the killer feels that the crime would not go
unpunished. More than the severity of the sentence, it is
the certainty of detection and punishment that acts as a
deterrent. The Advisory Council on the Treatment of
offenders appointed by the Government of Great Britain
stated in its report in 1960 "We were impressed by the
argument that the greatest deterrent to crime is not the
fear of punishment but the
certainty Of detection." Professor Hart emphasized the same
point, refuting the argument of Sir James Fitz James Stephen
in these words:

"This (Stephen's) estimate of the paramount place
in human motivation of the fear of death reads
impressively but surely contains a suggestio falsi and
once this is detected its cogency as an argument in
favour of the death penalty for murder vanishes for
there is really no parallel between the situation of a
convicted murderer over the alternative of life
imprisonment in the shadow of the gallows and the
situation of the murderer contemplating his crime. The
certainty of death is one thing, perhaps for normal
people nothing can be compared with it. But the
existence of the death penalty does not mean for the
murderer certainty of death now. It means not very high
probability of death in the future. And, futurity and
uncertainty, the hope of an escape, rational or
irrational, vastly diminishes the difference between
death and imprisonment as , deterrent and may diminish
to vanishing point... The way in which the convicted
murderer may view the immediate prospect of the gallows
after he has been caught, must be a poor guide to the
effect of this prospect upon him when he is
contemplating committing his crime."

It is also a circumstance of no less significance bearing on
the question of detection effect of death penalty, that,
even after detection and arrest, the likelihood of execution
for the murderer is almost nil. In the first place, the
machinery of investigation of offences being what it is and
the criminal law of our country having a tilt in favour of
the accused, the killer and look forward to a chance of
acquittal at the trial. Secondly, even if the trial results
in a conviction, it would not, in all probability, be
followed by a sentence of ... , death. Whatever may have
been the position prior to the enactment of the
Code of
Criminal Procedure
, 1973, it is now clear that under section
354 sub-section (3), life sentence is the rule and it is
only in exceptional cases for special reasons that death
sentence may be awarded. The entire drift of the legislation
is against infliction of death penalty and the courts are
most reluctant to impose it save in the rarest of rare
cases. It is interesting to note that in the last 2 years,
almost every case where death penalty is confirmed by the
High Court has come up before this Court by way of petition
for
special leave, and, barring the case of Ranga and Billa, I
do not think there is a single case in which death penalty
has been affirmed by this Court. There have been numerous
cases where even after special leave petitions against
sentence of death were dismissed, review petitions have been
entertained and death sentence commuted by this Court. Then
there is also the clemency power of the President under

Article 72
and of the Governor under
Article 161
of the
Constitution and in exercise of this power, death sentence
has been commuted by the President or the Governor, as the
case may be, in a number of cases. The chances of imposition
of death sentence following upon a conviction for the
offence of murder are therefore extremely slender. This is
also evident from the figures supplied to a us by the
Government of India for the years 1974 to 1978 pursuant to
the inquiry made by us. During the course of the hearing, we
called upon the Government of India to furnish us
statistical information in regard to following three
matters, namely, (i) the number of cases in which and the
number of persons on whom death sentence was imposed and
whose death sentence was confirmed by various High Courts in
India; (ii) the number of cases in which death sentence was
executed in the various States and the various Union
Territories; and (iii) the number of cases in which death
sentence was commuted by the President of India under

Article 72
or by the Governors under
Article 161
of the
Constitution. The statistical information sought by us was
supplied by the Government of India and our attention was
also drawn to the figures showing the total number of
offences of murder committed inter alia during the years
1974-77. These figures showed that on an average about
17,000 offences of murder were committed in India every year
during the period 1974 to 1977, and if we calculate on the
basis of this average, the total number of offences of
murder during the period of five years from 1974 to 1978
would come to about 85,000. Now, according to the
statistical information supplied by the Government of India,
out of these approximately 85,000 case of murder, there were
only 288 in which death sentence was imposed by the sessions
court and confirmed by the High Courts and out of them, in
12 cases death sentence was commuted by the President and in
40 cases, by the Governors and death sentence was executed
in only 29 cases. It will thus be seen that during the
period of five years from 1974 to 1978, there was an
infinitesingly small number of cases, only 29 out of an
aggregate number of approximately 85,000 cases of murder, in
which death sentence was executed. Of course, the figures
supplied by the
Government of India did not include the figures from the
States of A Bihar, Jammu and Kashmir, West Bengal and Delhi
Administration but the figures from these three States and
from the Union Territory of Delhi would not make any
appreciable difference. It is obvious therefore that even
after conviction in a trial, there is high degree of
probability that death sentence may not be imposed by the
sessions court and even If death sentence is imposed by the
sessions court, it may not be confirmed by the High Court
and even after confirmation by the High Court, it may not be
affirmed by this Court and lastly, even if affirmed by this
Court, it may be commuted by the President of India under

Article 72
or by the Governor under
Article 161
of the
Constitution in exercise of the power of clemency. The
possibility of execution pursuant to a sentence of death is
therefore almost negligible, particularly after the
enactment of section 354 sub-section (3) of the
Code of
Criminal Procedure
1973 and it is difficult to see how in
these circumstances death penalty can ever act as a
deterrent. The knowledge that . death penalty is rarely
imposed and almost certainly, it will not be imposed takes
away whatever deterrent value death penalty might otherwise
have. The expectation, bordering almost on certainty, that
death sentence is, extremely unlikely to be imposed is a
factor that would condition the behaviour of the offender
and death penalty cannot in such a situation have any
deterrent effect. The risk of death penalty being remote and
improvable, it cannot operate as a greater deterrent than
the threat of life imprisonment. Justice Brennan and Justice
White have also expressed the same view in Furman v. Georgia
(supra), namely, that, when infrequently and arbitrarily
imposed, death penalty is not a greater deterrent to murder
than is life imprisonment.

The majority speaking through Sarkaria, J. has referred
to a few decisions of this Court in which, according to
majority Judges, the deterrent value of death penalty has
been judicially recognised. But I do not think any reliance
can be placed on the observations in these decisions in
support of the view that death penalty has a uniquely
deterrent effect. The learned Judges who made these
observations did not have any socio-legal data before them
on the basis of which they could logically come to the
conclusion that death penalty serves as a deterrent. They
merely proceeded upon an impressionistic in view which is
entertained by quite a few lawyers, judges and legislators
without any scientific investigation or empiri-
cal research to support it. It appears to have been assumed
by these learned judges that death penalty has an additional
deterrent effect which life sentence does not possess. In
fact, the learned judges were-not concerned in these
decisions to enquire and determine whether death penalty has
any special deterrent effect and therefore if they proceeded
on any such assumption, it cannot be said that by doing so
they judicially recognised the deterrent value of death
penalty. It is true that in
Jagmohan
's case (supra) Palekar
J. speaking on behalf of the court did take the view that
death penalty has a uniquely deterrent effect but I do Dot
think that beyond a mere traditional belief the validity of
which cannot be demonstrated either by logic or by reason,
there is any cogent and valid argument put forward by the
learned Judge in support of the view that death sentence has
greater deterrent effect than life sentence. The majority
judges have relied on some of the observations of Krishna
Iyer, J. but it must not be forgotten that Krishna Iyer, J.
has been one of the strongest opponents of death penalty and
he has pleaded with passionate conviction for 'death
sentence on death sentence'.

In
Dalbir Singh & Ors. v. State
of Punjab
(supra) he emphatically rejected the claim of
deterrence in most unequivocal terms: ".. the humanity of
our Constitution historically viewed (does not) subscribe to
the hysterical assumption or facile illusion that a crime
free society will dawn if hangmen and firing squads were
kept feverishly busy." It would not be right to rely on
stray or casual observations of Krishna Iyer, J. in support
of the thesis that death penalty has a uniquely deterrent
effect. It would be doing grave injustice to him and to the
ideology for which he stands. In fact, the entire basis of
the judgment of Krishna Iyer, J. in Rajendra Prasad's is
that death penalty has not deterrent value and that is only
where the killer is found to be a social monster or a beast
incapable of reformation that he can be liquidated out of
existence. Chinnappa Reddy, J. has also in Bishnu Deo Shaw's
case (supra) taken the view that "there is no positive
indication that the death penalty has been deterrent" or in
other words, "the efficacy of the death penalty as a
deterrent is unproven."

Then reliance has been placed by Sarkaria, J. speaking
on behalf of the majority on the observations of Stewart, J.
in Furman v. Georgia (supra) where the learned Judge took
the view that death penalty serves a deterrent as well as
retributive purpose. In his view, certain criminal conduct
is so atrocious that society's interest in deterrence and
retribution wholly outweighs any considerations
of reform or rehabilitation of the perpetrator and that,
despite the on conclusive empirical evidence, only penalty
of death will provide maximum deterrence. It has also been
pointed out by Sarkaria, J. that in Gregg v. Georgia (supra)
Stewart, J. reiterated the same view in regard to the
deterrent and retributive effect of death penalty. But the
view taken by Stewart, J. cannot be regarded as decisive of
the present question as to the deterrent effect of death
penalty. It is just one view like any other and its validity
has to be tested on the touchstone of logic and reason. It
cannot be accepted merely because it is the view of an
eminent judge, I find that as against the view taken by him,
there is a contrary view taken by at least two judges of the
United States Supreme Court, namely. Brennan J. and Marshall
J. who were convinced in Gregg v. Georgia (supra) that
"capital punishment is not necessary as a deterrent to crime
in our society." It is natural differing judicial
observations supporting one view or the other that these
should be particularly on a sensitive issue like this, but
what is necessary is to examine objectively and critically
the logic and rationale behind these observations and to
determine for ourselves which observations represent the
correct view that should find acceptance with us. The
majority Judges speaking through Sarkaria, J. have relied
upon the observations of Stewart, J. as also on the
observations made by various other Judges and authors for
the purpose of concluding that when so many eminent persons
have expressed the view that capital punishment is necessary
for the protection of society, how can it be said that it is
arbitrary and unreasonable and does not serve any rational
penological purpose. It has been observed by Sarkaria, J:

"It is sufficient to say that the very fact that persons of
reason, learning and light are rationally and deeply divided
in their opinion on this issue, is a ground among others,
for rejecting the petitioners' argument that retention of
death penalty in the impugned provision, is totally devoid
of reason and purpose. If, notwithstanding the view of the
Abolitionists to the contrary, a very large segment of
people, the world over, including sociologists legislators,
jurists, judges and administrators still firmly believe in
the worth and necessity of capital punishment for the
protection of society......it is not possible to hold that
the provision of death penalty as an alternative punishment
for murder is unreasonable and not in the public interest. I
find it difficult to accept this argument which proceeds
upon the hypothesis that merely because some lawyers, judges
and jurists are of the opinion that death penalty
sub-serves a penological goal and is therefore in public
interest, the court must shut its eyes in respectful
deference to the views expressed by these scholars and
refuse to examine whether their views are correct or not. It
is difficult to understand how the court, when called upon
to determine a vital issue of fact, can surrender its
judgment to the views of a few lawyers, judges and jurists
and hold that because such eminent persons have expressed
these views, there must be some substance in what they say
and the provision of death penalty as an alternative
punishment for murder cannot therefore be regarded as
arbitrary and unreasonable. It is to my mind inconceivable
that a properly informed judiciary concerned to uphold
Fundamental Rights should decline to come to its own
determination of a factual dispute relevant to the issue
whether death penalty serves a legitimate penological
purpose and rest its decision only on the circumstance that
there are sociologists, legislators, judges and jurists who
firmly believe in the worth and necessity of capital
punishment. The court must on the material before it find
whether the views expressed by lawyers, judges, jurists and
criminologists on one side or the other are well founded in
logic and reason and accept those which appear to it to be
correct and sound. The Court must always remember that it is
charged by the Constitution to act as a sentinel on the qui
vive guarding the fundamental rights guaranteed by the
Constitution and it cannot shirk its responsibility by
observing that since there are strong divergent views on the
subject, the court need not express any categorical opinion
one way or the other as to which of these two views is
correct. Hence it is that, in the discharge of my
constitutional duty of protecting and upholding the right to
life which is perhaps the most basic of all human rights, I
have examined the rival views and come to the p conclusion,
for reasons which I have already discussed, that death
penalty has no uniquely deterrent effect and does not serve
a penological purpose. But even if we proceed on the
hypothesis that the opinion in regard to the deterrent
effect of death penalty is divided and it is not possible to
say which opinion is right and which opinion is wrong, it is
obvious that, in this state of affairs, it cannot be said to
be proved that death penalty has an additional deterrent
effect not possessed by life sentence and if that be so, the
legislative provision for imposition of death penalty as
alternative punishment for murder fail, since, as already
pointed out above, the burden of showing that death penalty
has a uniquely deterrent effect and therefore serves a
penological goal is on the State and
if the State fails to discharge this burden which lies upon
it, death penalty as alternative punishment for murder must
be held to be arbitrary and unreasonable.

The majority Judges have, in the Judgment of Sarkaria,
J. placed considerable reliance on the 35th Report of the
Law Commission and I must therefore briefly refer to that
Report before I part with this point. The Law Commission set
out in their Report the following main points that weighed
with them in arriving at the conclusion that capital
punishment does act as a deterrent:

(a) Basically, every human being dreads death.

(b) Death, as a penalty, stands on a totally different
level from imprisonment for life or any other
punishment. The difference is one of quality, and
not merely of degree.

(c) Those who are specifically qualified to express an
opinion on the subject, including particularly the
majority of the replies received from State
Governments, Judges, Members of Parliament and
legislatures and Members of the Bar and police
officers-are definitely of the view that the
deterrent object of capital punishment is achieved
in a fair measure in India.

(d) As to conduct of prisoners released from jail
(after under going imprisonment for life), it
would be difficult lo come to a conclusion,
without studies extending over a long period of
years.

(e) Whether any other punishment can possess all the
advantages of capital punishment is a matter of
doubt.

(f) Statistics of other countries are inconclusive on
the subject. If they are not regarded as proving
the deterrent effect, neither can they be regarded
as conclusively disproving it.

So far as the first argument set out in clause (a) is
concerned, I have already shown that the circumstance that
every human being dreads
death cannot lead to the inference that death penalty act as
a deterrent. The statement made in clause (b) is perfectly
correct and I agree with they Law Commission that death as a
penalty stands on a totally different level from life
imprisonment and the difference between them is one of
quality and not merely of degree, but I fail to see how from
this circumstance an inference can necessarily follow that
death penalty has a uniquely deterrent effect. Clause (c)
sets out that those who are specially qualified to express
an opinion on the subject have in their replies to the
questionnaire stated their definite view that the deterrent
effect of capital punishment is achieved in a fair measure
in India. It may be that a large number of persons who sent
replies to the questionnaire issued by the Law Commission
might have expressed the view that death penalty does act as
a deterrent in our country, but mere expression of opinion
in reply to the questionnaire, unsupported by reasons,
cannot have any evidenciary value. There are quite a number
of people in this country who still nurture the
superstitions and irrational belief, ingrained in their
minds by a century old practice of imposition of capital
punishment and fostered, though not consciously, by the
instinct for retribution, that death penalty alone can act
as an effective deterrent against the crime of murder. I
have already demonstrated how this belief entertained by
lawyers, judges, legislators and police officers is a myth
and it has no basis in logic or reason. In fact, the
statistical research to which I have referred completely
falsifies this belief. Then, there are the arguments in
clauses (d) and (e) but these arguments even according to
the Law Commission itself are inconclusive and it is
difficult to see how they can be relied upon to support the
thesis that capital punishment acts as a deterrent. The Law
Commission states in clause (f) that statistics of other
countries are inconclusive on the subject. I do not agree. I
have already dealt with this argument and shown that the
statistical studies carried out by various jurists and
criminologists clearly disclose That there is no evidence at
all to suggest that death penalty acts as a deterrent and it
must therefore be held on the basis of the available
material that death penalty does not act as a deterrent. But
even if we accept the proposition that the statistical
studies are inconclusive and they cannot be regarded as
proving that death penalty has no deterrent effect, it is
clear that at the same time they also do not establish that
death penalty has a uniquely deterrent effect and in this
situation, the burden of establishing that death penalty has
an additional deterrent effect which life sentence does not
have and therefore serves a penological purpose
being on the State, it must held that the State has failed
to discharge the burden which rests upon it and death
penalty must therefore be held to be arbitrary and
unreasonable.

There was also one other argument put forward by the
Law Commission in its 35th Report and that argument was that
having regard to the conditions in India to the variety of
social up-bringing 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 Deed to maintain law and order in the
country at the present juncture, India cannot risk the
experiment of abolition of capital punishment. This argument
does not commend itself to me as it is based more on fear
psychosis than on reason. It is difficult to see how any of
the factors referred to by the Law Commission, barring the
factor relating to the need to maintain law and order, can
have any relevance to the question of deterrent effect of
capital punishment. I cannot subscribe to the opinion that,
because the social upbringing of the people varies from
place to place or from class to class or there are
demographic diversities and variations, they tend to
increase the incidence of homicide and even if they do, I
fail to see how death penalty can counter act the effect of
these factors. It is true that the level of education in our
country is low, because our developmental process started
only after we became politically free, but it would be
grossly unjust to say that uneducated people are more prone
to crime than the educated ones. I also cannot agree that
the level of morality which prevails amongst our people is
low. I firmly hold the view that the large bulk of the
people in our country, barring only a few who occupy
positions of political, administrative or economic power,
are actuated by a high sense of moral and ethical values. In
fact, if we compare the rate of homicide in India with that
in the United States, where there is greater homogeneity in
population and the level of education is fairly high, we
find that India compares very favourably with the United
States. The rate of homicide for the year 1952 was 4.7 in
the United States as against the rate of only 2.9 in India
per 1,00,000 population and the figures for the year 1960
show that the rate of homicide in the United States was 5.1
as against the rate of only 2.5 in India per 1,00,000
population. The comparative figures for the year 1967 also
confirm that the rate of homicide per 1,00,000 population in
the United States was definitely higher than that in India
because in the United States it was 6.1
while in India it was only 2.6. It is therefore obvious
that, despite the existence of the factors referred to by
the Law Commission, the conditions in India, in so far as
the rate of homicide is concerned, are definitely better
than in the United States and I do not see how these factors
can possibly justify an apprehension that it may be risky to
abolish capital punishment. There is in fact statistical
evidence to show that the attenuation of the area in which
death penalty may be imposed and the remoteness and
infrequency of abolition of death penalty have not resulted
in increase in the rate of homicide. The figures which were
placed before us on behalf of the Union clearly show that
there was no increase in the rate of homicide even though
death sentence was made awardable only in exceptional cases
under section 354 sub-section (3) of the new
Code of
Criminal Procedure
1973. I must therefore express my
respectful dissent from the view taken by the Law Commission
that the experiment of abolition of capital punishment,
would involve a certain element of risk to the law and order
situation.

It will thus be seen that death penalty as provided
under
section 302
of the Indian Penal Code read with section
354 sub-section (3) of the
Code of Criminal Procedure
, 1973
does not subserve any legitimate end of punishment, since by
killing the murderer it totally rejects the reformative
purpose and it has no additional deterrent effect which life
sentence does not possess and it is therefore not justified
by the deterrence theory of punishment. Though retribution
or denunciation is regarded by some as a proper end of
punishment. I do not think, for reasons I have already
discussed, that it can have any legitimate place in an
enlightened philosophy of punishment. It must therefore be
held that death penalty has no rational nexus with any
legitimate penological goal or any rational penological
purpose and it is arbitrary and irrational and hence
violative of
Articles 14
and
of the Constitution.

I must now turn to consider the attack against the
constitutional validity of death penalty provided under

section 302
of the Indian Penal Code read with section 354
sub-section (3) of the
Code of Criminal Procedure
, 1973 on
the ground that these sections confer an unguided and
standardless discretion on the court whether to liquidate an
accused out of existence or to let him continue to live and
the vesting of such discretion in the court renders the
death penalty arbitrary and freakish. This ground of
challenge is in my opinion well founded and it furnishes one
additional reason
why the death penalty must be struck down as violative of
Articles A 14 and 21. It is obvious on a plain reading of

section 302
of the Indian Penal Code which provides death
penalty as alternative punishment for murder that it leaves
it entirely to the discretion of Court whether to impose
death sentence or to award only life imprisonment to an
accused convicted of the offence of murder. This section
does not lay down any standards or principles to guide the
discretion of the Court in the matter of imposition of death
penalty. The critical choice between physical liquidation
and life long incarceration is left to the discretion of the
court and no legislative light is shed as to how this deadly
discretion is to be exercised. The court is left free to
navigate in an uncharted sea without any com- pass or
directional guidance. The respondents sought to find some
guidance in section 354 sub-section (3) of the
Code of
Criminal Procedure
1973 but I fail to see how that section
can be of any help at all in providing guidance in the
exercise of discretion. On the contrary it makes the
exercise of discretion more difficult and uncertain. Section
354 sub-section (3) provides that in case of offence of
murder, life sentence shall be the rule and it is only in
exceptional cases for special reasons that death penalty may
be awarded. But what are the special reasons for which the
court may award death penalty is a matter on which section
354 sub-section (3) is silent nor is any guidance in that
behalf provided by any other provision of law. It is left to
the Judge to grope in the dark for himself and in the
exercise of his unguided and unfettered discretion decide
what reasons may be considered as 'special reasons'
justifying award of death penalty and whether in a given
case any such special reasons exist which should persuade
the court to depart from the normal rule and inflict death
penalty on the accused. There being no legislative policy or
principle to guide the court in exercising its discretion in
this delicate and sensitive area of life and death, the
exercise of discretion of the Court is bound to vary from
judge to judge. What may appear as special reasons to one
judge may not so appear to another and the decision in a
given case whether to impose the death sentence or to let
off the offender only with life imprisonment would, to a
large extent, depend upon who is the judge called upon to
make the decision. The reason for this uncertainty in the
sentencing process is two-fold. Firstly, the nature of the
sentencing process is such that it involves a highly
delicate task calling for skills and talents very much
different from those ordinarily expected of lawyers. This
was pointed out clearly
and emphatically by Mr. Justice Frankfurter in the course of
the evidence he gave before the Royal Commission on Capital
Punishment:

"I myself think that the bench-we lawyers who be
come Judges-are not very competent, are not qualified
by experience, to impose sentence where any discretion
is to be exercised. I do not think it is in the domain
of the training of lawyers to know what to do with a
fellow after you find out he is a thief. I do not think
legal training has given you any special competence. I,
myself, hope that one of these days, and before long,
we will divide the functions of criminal justice. I
think the lawyers are people who are competent to
ascertain whether or not a crime has been committed.
The whole scheme of common law judicial machinery-the
rule of evidence, the ascertainment of what is relevant
and what is irrelevant and what is fair, the whole
question of whether you can introduce prior crimes in
order to prove intent-I think lawyers are peculiarly
fitted for that task. But all the questions that follow
upon ascertainment of guilt, I- think require very
different and much more diversified talents than the
lawyers and judges are normally likely to possess."

Even if considerations relevant to capital sentencing were
provided by the legislature, it would be a difficult
exercise for the judges to decide whether to impose the
death penalty or to award the life sentence. But without any
such guidelines given By the legislature, the task of the
judges becomes much more arbitrary and the sentencing
decision is bound to vary with each judge. Secondly, when
unguided discretion is conferred upon the Court to choose
between life and death, by providing a totally vague and
indefinite criterion of 'special reasons' without laying
down any principles or guidelines for determining what
should be considered To be 'special reasons', the choice is
bound to be influenced by the subjective philosophy of the
judge called upon to pass the sentence and on his value
system and social philosophy will depend whether the accused
shall live or die. No doubt the judge will have to give
'special reasons' if he opts in favour of inflicting the
death penalty, H-but that does not eliminate arbitrariness
and caprice, firstly because there being no guidelines
provided by the legislature, the reasons
which may appeal to one judge as 'special reasons' may not
appeal to another, and secondly, because reasons can always
be found for a conclusion that the judge instinctively
wishes to reach and the judge can bonafide and
conscientiously find such reason to be 'special reasons'. It
is now recognised on all hands that judicial conscience is
not a fixed conscience; it varies from judge to judge depen-
ding upon his attitudes and approaches, his predilections-
and prejudices, his habits of mind and thought and in short
all that goes with the expression "social philosophy". We
lawyers and judges like to cling to the myth that every
decision which we make in the exercise of our judicial
discretion is guided exclusively by legal principles and we
refuse to admit the subjective element in judicial decision
making. But that myth now stands exploded and it is
acknowledged by jurists that the social philosophy of the
judge plays a not inconsiderable part in moulding his
judicial decision and particularly the exercise of judicial
discretion. There is nothing like complete objectivity in
the decision making process and especially so, when this
process involves making of decision in the exercise of
judicial discretion. Every judgment necessarily bears the
impact of the attitude and approach of the judge and his
social value system. It would be pertinent here to quote
Justice Cardozo's analysis of the mind of a Judge in his
famous lectures on "Nature of Judicial Process":

"We are reminded by William James in a telling
page of his lectures on Pragmatism that every one of us
has in truth an underlying philosophy of life, even
those of us to whom the names and the notions of
philosophy are unknown or anathema. There is in each of
us a stream of y tendency, whether you choose to call
it philosophy or not, which gives coherence and
direction to thought and ' t action. Judges cannot
escape that current any more than other mortals. All
their lives, forces which they do not recognize and
cannot name, have been tugging at them- inherited
instincts, traditional beliefs, acquired convictions; -
and the resultant is an outlook on life, a conception
of ' social needs, a sense in Jame's phrase of 'the
total push and pressure of the cosmos,' which when
reasons are nicely balanced, must determine where
choice shall fall. In this mental background every
problem finds its setting. We l may try to see things
as objectively as we please. None-
theless, we can never see them with any eyes except our
own."

It may be noted that the human mind, even at infancy, is no
blank sheet of paper. We are born with predisposition and
the process of education, formal and informal, and, our own
subjective experiences create attitudes which effect us in
judging situations and coming to decisions. Jerome Frank
says in his book; "Law and the Modern Mind", in an
observation with which I find myself in entire agreement:

"Without acquired 'slants' preconceptions, life
could not go on. Every habit constitutes a pre-
judgment; were those pre-judgments which we call habits
absent in any person, were he obliged to treat every
event as an unprecedented crisis presenting a wholly
new problem, he would go mad. Interests, points of
view, preferences, are the essence of living. Only
death yields complete dispassionateness, for such
dispassionateness signifies utter indifference.. An
'open mind' in the sense of a mind containing no pre-
conceptions whatever, would be a mind incapable of
learning anything, would be that of an utterly emotion-
less human being."

It must be remembered that "a Judge does not shed the
attributes of common humanity when be assumes the ermine."
The ordinary human mind is a mass of pre-conceptions
inherited and acquired, often unrecognised by their
possessor. "Few minds are as neutral as a sheet of plain
glass and indeed a mind of that quality may actually fail in
judicial- efficiency, for the warmer tints of imagination
and sympathy are needed to temper the cold light of reason,
if human justice is to be done." It is, therefore, obvious
that when a Judge is called upon to exercise his discretion
as to whether the accused shall be killed or shall be
permitted to live, his conclusion would depend to a large
extent on his approach and attitude, his predilections and
pre-conceptions, his value system and social philosophy and
his response to the evolving norms of decency and newly
developing concepts and ideas in penological jurisprudence.
One Judge may have faith in the Upanishad doctrine that
every human being is an embodiment of the Divine and he may
believe with Mahatma Gandhi that every offender can be
reclaimed
and transformed by love and it is immoral and unethical to
kill him, while another Judge may believe that it is
necessary for social defence that the offender should be put
out of way and that no mercy should be shown to him who did
not show mercy to another. One Judge may feel that the
Naxalites, though guilty of murders, . are dedicated souls
totally different from ordinary criminals as they are
motivated not by any self-interest but by a burning desire
to bring about a revolution by eliminating vested interests
and should not therefore be put out of corporeal existence
while another Judge may take the view that the Naxalities
being guilty of cold premeditated murders are a menace to
the society and to innocent men and women and therefore
deserve to be liquidated. The views of Judges as to what may
be regarded as 'special reasons' are bound to differ from
Judge to Judge depending upon his value system and social
philosophy with the result that whether a person shall live
or die depends very much upon the composition of the bench.
which tries his case and this renders the imposition of
death penalty arbitrary and capricious.

Now this conclusion reached by me is not based merely
on theoretical or a priori considerations. On an analysis of
decisions given over a period of years we find that in fact
there is no uniform pattern of judicial behaviour in the
imposition of death penalty and the judicial practice does
not disclose any coherent guidelines for ' the award of
capital punishment. The Judges have been awarding death
penalty or refusing to award it according to their own scale
of values and social philosophy and it is not possible to
discern any consistent approach to the problem in the
judicial decisions. It is p apparent from a study of the
judicial decisions that some Judges are readily and
regularly inclined to sustain death sentences, other are .
similarly disinclined and the remaining waver from case to
case. Even in the Supreme Court there are divergent
attitudes and opinions in regard to the imposition of
capital punishment. If a case comes before one Bench
consisting of Judges who believe in the social efficacy of
capital punishment, the death sentence would in all
probability be confirmed but if the same case comes before
another Bench consisting of Judges who are morally and
ethically against the death penalty, the death sentence
would most likely be commuted to life imprisonment. The
former would find and I say this not in any derogatory or
disparaging sense, but as a consequence of psychological and
attitudinal factors operating on the
minds of the Judges constituting the Bench-'special reasons'
in the case to justify award of death penalty while the
latter would reject any such reasons as special reasons. It
is also quite possible that one Bench may, having regard to
its perceptions, think that there are special reasons in the
case for which death penalty should be awarded while another
Bench may bonafide and conscientiously take a different view
and hold that there are no special reasons and that only
life sentence should be imposed and it may not be possible
to assert objectively and logically as to who is right and
who is wrong, because the exercise of discretion in a case
of this kind, where no broad standards or guidelines are
supplied by the legislature, is bound to be influenced by
the subjective attitude and approach of the Judges
constituting the Bench, their value system, individual tone
of their mind, the colour of their experience and the
character and variety of their interests and their
predispositions. This arbitrariness in the imposition of
death penalty is considerably accentuated by the fragmented
bench structure of our Courts where benches are inevitably
formed with different permutations and combinations from
time to time and cases relating to the offence of murder
come up for hearing sometimes before one Bench, sometimes
before another sometimes before a third and so on. Prof.
Blackshield has in his Article on 'Capital Punishment in
India' published in Volume 21 of the Journal of the Indian
Law Institute pointed out how the practice of bench
formation contributes to arbitrariness in the imposition of
death penalty. It is well-known that so far as the Supreme
Court is concerned, while the number of Judges has increased
over the years, the number of Judges on Benches which hear
capital punishment cases has actually decreased. Most cases
are now heard by two judge Benches. Prof. Blackshield has
abstracted 70 cases in which the Supreme Court had to choose
between life and death while sentencing an accused for the
offence of murder and analysing these 70 cases he has
pointed out that during the period 28th April 1972 to 8th
March 1976 only eleven Judges of the Supreme Court
participated in 10% or more of the cases. He has listed
these eleven Judges in an ascending order of leniency based
on the proportion for each Judge of plus votes (i.e. votes
for the death sentence) to total votes and pointed out that
these statistics show how the judicial response to the
question of life and death varies for judge to judge." It is
significant to note that out of 70 cases analysed by Prof.
Blackshield, 37 related to the period subsequent to the
coming into force of section 354 sub-section (3) of the
Code
of Criminal Procedure
1973.
If a similar
exercise is performed with reference to cases decided by the
Supreme A Court after 8th March 1976, that being the date
upto which the survey carried out by Prof. Blackshield was
limited, the analysis will x reveal the same pattern of
incoherence and arbitrariness, the decision to kill or not
to kill being guided to a large extent by the com position
of the Bench. Take for example Rajendra Prasad's case
(supra) decided on 9th February 1979. In this case, the
death sentence imposed on Rajendra Prasad was commuted to
life imprisonment by a majority consisting of Krishna Iyer,
J. and Desai, J.A.P. Sen, J. dissented and was of the view
that the death sentence should be confirmed. Similarly in
one of the cases before us, namely,
Bachan Singh v. State of
Punjab
,(l) when it was first heard by a Bench consisting of
Kailasam and Sarkaria, JJ., Kailasam, J. was definitely of
the view that the majority decision in . Rajendra Prasad's
case was wrong and that is why 'he referred that case to
the Constitution Bench.

So also in
Dalbir Singh v. State of
Punjab
(supra), the majority consisting of Krishna Iyer, J.
and Desai, J. took the view that the death sentence imposed
on Dalbir Singh should be commuted to life imprisonment
while A.P. Sen, J. struck to the original view taken by him
in
Rajendra Prasad
's case and was inclined to confirm the
death sentence. It will thus be seen that the exercise of
discretion whether to inflict death penalty or not depends
to a considerable extent on the value system and social
philosophy of the Judges constituting the Bench.

The most striking example of freakishness in imposition
of death penalty is provided by a recent case which involved
three accused, namely, Jeeta Singh, Kashmira Singh and
Harbans Singh. These three persons were sentenced to death
by the Allahabad High Court by a judgment and order dated
20th October 1975 for playing an equal part in jointly
murdering a family of four persons. Each of these three
persons preferred a separate petition in the Supreme Court
for special leave to appeal against the common judgment
sentencing them all to death penalty. The special leave
petition of Jeeta Singh came up for hearing before a bench
consisting of Chandrachud, J. (as he then was) Krishna Iyer,
J. and N.L. Untwalia, J. and it was dismissed on 15th April
1976. Then came the special leave petition preferred by
Kashmira Singh from jail and this petition was placed for
hearing before another bench consisting of Fazal Ali, J. and
myself. We granted leave to Kashmira Singh limited to
the question of sentence and by an order dated 10th April
1977 we allowed his appeal and commuted his sentence of
death into one of imprisonment for life. The result was that
while Kashmira Singh's death sentence was commuted to life
imprisonment by one Bench, - the death sentence imposed on
Jeeta Singh was confirmed by another bench and he was
executed on 6th October 1981, though both had played equal
part in the murder of the family and there was nothing to
distinguish the case of one from that of the other. The
special leave petition of Harbans Singh then came up for
hearing and this time, it was still another bench which
heard his special leave petition. The Bench consisted of
Sarkaria and Singhal, JJ. and they rejected the special
leave petition of Harbans Singh on 1 6th October, 1978.
Harbans Singh applied for review of this decision, but the
review petition was dismissed by Sarkaria, J. and A.P. Sen,
J. On 9th May 1980. It appears that though the registry of
this court had mentioned in its office report that Kashmira
Singh's death sentence was already commuted, that fact was
not brought to the notice of the court specifically when the
special leave petition of Harbans Singh and his review
petition were dismissed. Now since his special leave
petition as also his review petition were dismissed by this
Court, Harbans Singh would have been executed on 6th October
1981 along with Jeeta Singh, but fortunately for him he
filed a writ petition in this Court and on that writ
petition, the court passed an order staying the execution of
his death sentence. When this writ petition came up for
hearing before a still another bench consisting of
Chandrachud, C.J., D.A. Desai and AN. Sen. JJ., it was
pointed out to the court that the death sentence imposed on
Kashmira Singh had been commuted by a bench consisting of
Fazal Ali, J. and myself and when this fact was pointed out,
the Bench directed that the case be sent back to the
President for reconsideration of the clemency petition filed
by Harbans Singh. This is a classic case which illustrates
the judicial vagaries in the imposition Of death penalty and
demonstrates vividly, in all its cruel and stark reality,
how the infliction of death penalty is influenced by the
composition of the bench, even in cases governed by section
354 sub-section (3) of the
Code of Criminal Procedure
1973.
The question may well be asked by the accused: Am I to live
or die depending upon the way in which the Benches are
constituted from time to time ? Is that not clearly
violative of the fundamental guarantees enshrined in

Articles 14
and
21 ?
If we study the judicial decisions given by the courts
over a number of years, we find Judges resorting to a wide
variety of factors in justification of confirmation or
commutation of death sentence and these factors when
analysed fail to reveal any coherent pattern. This is the
inevitable consequence of the failure of the legislature to
supply broad standards or guidelines which would structure
and channelise the discretion of the court in the matter of
imposition of death penalty. Of course, I may make it clear
that when I say this I do not wish to suggest that if broad
standards or guidelines are supplied by the legislature,
they would necessarily cure death penalty of the vice of
arbitrariness or freakishness. Mr. Justice Harlan pointed
out in Mc Gautha v. California(l) the difficulty of
formulating standards or guidelines for channelising or
regulating the discretion of the court in these words ":

"Those who have come to grips with the hard task
of actually attempting to draft means of channeling
capital sentencing discretion have confirmed the lesson
taught by history...To identify before the fact those
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."

But whether adequate standards or guidelines can be
formulated or not which would cure the aspects of
arbitrariness and capriciousness, the fact remains that no
such standards or guidelines are provided by the legislature
in the present case, with the result that the court has
unguided and untrammelled discretion in choosing between
death and life imprisonment as penalty for the crime of
murder and this has led to considerable arbitrariness and
uncertainty. This is evident from a study of the decided
cases which clearly shows that the reasons for confirmation
or commutation of death sentence relied upon by the court in
different cases defy coherent analysis. Dr. Raizada has, in
his monumental doctoral study entitled "Trends in
sentencing; a study of the important penal statutes and
judicial pronouncements of the High Courts and the Supreme
Court" identified a large number of decisions of this Court
where inconsis-
tent awards of punishment have been made and the judges have
frequently articulated their inability to prescribe or
follow consistently any standards or guidelines. He has
classified cases upto 1976 in terms of the reasons given by
the court for awarding or refusing to award death sentence.
The analysis made by him is quite rewarding and
illuminating.

(i) one of the reasons given by the courts in a number
of cases for imposing death penalty is that the
murder is "brutal", "cold blooded", "deliberate",
"unprovoked", "fatal", "gruesome", "wicked",
"callous", "heinous" or "violent". But the use of
these labels for describing the nature of the
murder is indicative only of the degree of the
court's aversion for the nature or the manner of
commission of the crime and it is possible that
different judges may react differently to these
situations and moreover, some judges may not
regard this factor as having any relevance to the
imposition of death penalty and may therefore
decline to accord to it the status of "special
reasons". In fact, there are numerous cases, where
despite the murder being one falling within these
categories, the court has refused to award death
sentence. For example, Janardharan whose appeal
was decided along with the appeal of Rajendra
Prasad had killed his innocent wife and children
in the secrecy of night and the murder was
deliberate and cold blooded, attended as it was
with considerable brutality, and yet the majority
consisting of Krishna Iyer, J. and D.A. Desai, J.
commuted his death sentence to life imprisonment.
So also Dube had committed triple murder and still
his death sentence was commuted to life
imprisonment by the same two learned Judges,
namely, Krishna Iyer, J. and D.A. Desai, J. It is
therefore clear that the epithets mentioned above
do not indicate any clearcut well defined
categories but are merely expressive of the
intensity of judicial reaction to the murder,
which may not be uniform in all Judges and even if
the murder falls within one of these categories,
that factor has been regarded by some judges as
relevant and by others, as irrelevant and it has
not been uniformly applied as a salient factor in
determining whether or not death penalty should be
imposed.
(ii) There have been cases where death sentence has
been A . . awarded on the basis of constructive or
joint liability arising under sections 34 and 149.
Vide:
Babu v. State of U.P.
,(
1) Mukhtiar Singh v.
State of Punjab
,(
2) Masalt v. State of U.P.
,(
3)
Gurcharan Singh v. State - of Punjab
.(4) But,
there are equally a large number of cases whether
death sentence has not been awarded because the
criminal liability of the accused was only . under
section 34 or Section 149. There are no establi-
shed criteria for awarding or refusing to award
death sentence to an accused who himself did not
give the fatal blow but was involved in the
commission of - murder along with other assailants
under section 34 or section 149.

(iii)The position as regards mitigating factors also
shows the same incoherence. One mitigating factor
which -, has often been relied upon for the
purpose of com- muting the death sentence to life
imprisonment is the youth of the offender. But
this too has been quite arbitrarily applied by the
Supreme Court. There are . cases such as
State of
U.P. v. Suman Das
,(
5) Raghubir Singh v. Sate of
Haryana
(6) and Gurudas Singh v. State of
Rajasthan(7) where the Supreme Court took into
account the young age of the appellant and refused
to award death sentence to him.
Equally there are

- cases such as
Bhagwan Swarup v. State of U.P.
(')
and Raghomani v. State of U.P.(9) where the
Supreme Court took the view that youth is no
ground for extenuation of sentence. Moreover there
is also divergence of opinion as to what should be
the age at which an offender may be regarded as a
young man deserving i of commutation. The result
is that as pointed out
by Dr. Raizada, in some situations young offenders who
have committed multiple murders get reduction in life
sentence whereas in others, "where neither the loss of
as many human lives nor of higher valued properly" is
involved, the accused are awarded death sentence.

(iv) one other mitigating factor which is often taken into
account is delay in final sentencing. This factor of
delay after sentence received great emphasis in
Ediga
Annamma v. State of Andhra Pradesh
,(
1) Chawla v. State
of Haryana
,(
2) Raghubir Singh v. State of Haryana

(supra) Bhur Singh v. State of Punjab,(
3) State of
Punjab v Hari Singh
(4) and Gurudas Singh v. State of
Rajasthan(5) and in these cases delay was taken into
account for the purpose of awarding the lesser
punishment of life imprisonment.

In fact, in
Raghubir
Singh v. State of Haryana
(supra) the fact that for 20
months the spectre of death penalty must have been
tormenting his soul was held sufficient to entitle the
accused to reduction in sentence.
But equally there are
a large number of cases where death sentences have been
confirmed, even when two or more years were taken in
finally disposing of the appeal; Vide: Rishdeo v. State
of U.P.,(6) Bharmal Mapa v. State of Bombay(7) and
other cases given by Dr. Raizada in foot-note 186 to
chapter III. These decided cases show that there is no
way of predicting. the exact period of prolonged
proceeding which may favour an accused. Whether any im-
portance should be given to the factor of delay and if
so to what extent are matters entirely within the dis-
cretion of the court and it is not possible to assert
with any definitiveness that a particular period of
delay after sentencing will earn for the accused
immunity
from death penalty. It follows as a necessary
corrolary from these vagaries in sentencing
arising from the factor of delay, that the
imposition of capital punishment becomes more or
less a kind of cruel judicial lottery. If the case
of the accused is handled expeditiously by the
prosecution, defence lawyer, sessions court, High
Court and the Supreme Court, then this mitigating
factor of delay is not available to him for
reduction to life sentence. If, on the other hand,
there has been lack of despatch, engineered or
natural, then the accused may escape the gallows,
subject of course to the judicial vagaries arising
from other causes. In other words, the more
efficient the proceeding, the more certain the
death sentence and vice-versa.

(v) The embroilment of the accused in an immoral
relationship has been condoned and in effect,
treated as an extenuating factor in
Raghubir Singh
v. State of Haryana
(supra) and Basant Laxman More
v. State of Maharashtra(l) while in
Lajar Masih v.
State of U.P.
,(2) it has been condemed and in
effect treated as an aggravating factor. There is
thus no uniformity l - of approach even so far as
this factor is concerned.

All these facors singly and cumulatively indicate not
merely that there is an enormous potential of arbitrary
award of . death penalty by the High Courts and the Supreme
Court but that, .; in fact, death sentences have been
awarded arbitrarily and freakishly. Vide: Dr. Upendra Baxi's
note on "Arbitrariness of Judicial Imposition of Capital
Punishment.

Professor Blackshield has also in his article on
"Capital Punishment in India" commented on the arbitrary and
capricious nature of imposition of death penalty and
demonstrated forcibly and almost conclusively, that
arbitrariness and uneven incidence are inherent and
inevitable in a system of capital punishment. He has taken
the decision of this Court in
Ediga Anamma v. State of
Andhra Pradesh
(supra) as the dividing line and examined the
judicial decisions given by this Court subsequent to the
decision in
Ediga
Anamma
's case, where this Court had to choose between life
and death under section 302 of the Indian Renal Code.

The
cases sub sequent to the decision in
Ediga Anamma
's case
have been chosen for study and analysis presumbly because
that was the decision in which the court for the first time
set down some working formula whereby a synthesis could be
reached between death sentence and life imprisonment and
Krishna Iyer, J. speaking on behalf of the court, formulated
various grounds which in his opinion, might warrant death
sentence as an exceptional measure.

But, despite this
attempt made in
Ediga Anamma
's case to evolve some broad
standards or guidelines for imposition of death penalty, the
subsequent decisions, as pointed out by Professor
Blackshield, display the same pattern of confusion,
contradictions and aberrations as the decisions before that
case.

The learned author has taken 45 reported decisions
given after
Ediga Anamma
's case and shown that it is not
possible to discern any coherent pattern in these decisions
and they reveal con tradictions and inconsistencies in the
matter of imposition of death penalty. This is how the
learned author has summed up his conclusion after an
examination of these judicial decisions:

"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 conclusion that, at least in
contemporary India, Mr. Justice Douglas' argument in
Furman v. Georgia is correct: that arbitrariness and
uneven incidence are inherent and inevitable in a
system of capital punishment and that therefore-in
Indian constitutional terms, and in spite of Jagmohan
Singh- the retention of such a system necessarily
violates
Article 14
's guarantee of "equality before the
law".

It is clear from a study of the decisions of the higher
courts on the life-or-death choice that judicial adhocism or
judicial impressionism dominates the sentencing exercise and
the infliction of death penalty suffers from the vice of
arbitrariness and caprice.

I may point out that Krishna Iyer, J. has also come to
the the same conclusion on the basis of his long experience
of the sentencing process. He has analysed the different
factors which have prevailed with the Judges from time to
time in awarding or refusing
to award death penalty and shown how some factors have
weighed A with one Judge, some with another, some with a
third and so on, resulting in chaotic arbitrariness in the
imposition of death penalty. I can do no better than quote
his own words in
Rajendra Prasad
's case (supra):

"Law must be honest to itself. Is it not true that
some judges count the number of fatal wounds, some the
nature of the weapon used, others count the corpses or
the degree of horror and yet others look into the age
or sex of the offendar 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
calculas. Stranger still, a good sentence of death by
the trial Court is sometimes upset by the Supreme Court

- I; 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, behavioral emphasis or social
antecedents, judicial hubris or human rights
perspectives, criminological literacy -. or fanatical
reverence for outworn social philosophers burried in
the debris of time except as part of history-this h
plurality of forces plays a part in swinging the
pendulum of sentencing justice erratically."

This passage from the judgment of the learned Judge exposes,
in language remarkable for its succinctness as well as
eloquence, the vagarious nature of the imposition of death
penalty and highlights a few of the causes responsible for
its erratic operation. I find myself totally in agreement
with these observations of the learned - Judge.

But when it was contended that sentencing discretion is
inherent in our legal system, and, in fact, it is desirable,
because no two cases or criminals are identical and if no
discretion is left to the
court and sentencing is to be done according to a rigid
predetermined formula leaving no room for judicial
discretion, the sentencing process would cease to be
judicial and would de-generate into a bed of procrustean
cruelty. The argument was that having regard to the nature
of the sentencing process, it is impossible to lay down any
standards or guidelines which will provide for the endless
and often unforeseeable variations in fact situations and
sentencing discretion his necessarily to be left to the
court and the vesting of such discretion in the court, even
if no standards or guidelines are provided by the
legislature for structuring or challenging such discretion,
cannot be regarded as arbitrary or unreasonable. This
argument, plausible though it may seem, is in my opinion not
well a founded and must be rejected. It is true that
criminal cases do not fall into set behaviouristic patterns
and it is almost impossible to find two cases which are
exactly identical. There are, as pointed out by Sarkaria, J.
in the majority judgment, "countless permutations and
combinations which are beyond the anticipatory capacity of
the human calculus". Each case presents its own distinctive
features, its peculiar combinations of events and its unique
configuration of facts. That is why, in the interest of
individualised justice, it is necessary to vest sentencing
discretion in the court so that appropriate sentence may be
imposed by the court in the exercise of its judicial
discretion, having regard to the peculiar facts and
circumstances of a given case, or else the. sentencing
process would cease to be just and rational and justice
would be sacrificed at the altar of blind uniformity. But at
the same time, the sentencing discretion conferred upon the
court cannot be altogether uncontrolled or unfettered. The
strategem which is therefore followed by the legislatures
while creating and defining offences is to prescribe the
maximum punishment and in some cases, even the minimum and
leave it to the discretion of the court to decide upon the
actual term of imprisonment. This cannot be regarded as
arbitrary or unreasonable since the discretion that is left
to the court is to choose an appropriate term of punishment
between the limits
laid down by
the legislature, having
regard to the distinctive features and the peculiar facts
and circumstances of the case. The conferment of such
sentencing discretion is plainly and indubitably essential
for rendering individualised justice. But where the
discretion granted to the court is to choose between life
and death without any standards or guidelines provided by
the legislature, the death penalty does become arbitrary and
unreasonable. The death penalty is
qualitatively different from a sentence of imprisonment.
Whether Ia sentence of imprisonment is for two years or five
years or for life, it is qualitatively the same, namely, a
sentence of imprisonment, but the death penalty is totally
different. It is irreversible; it is beyond recall or
reparation; it extinguishes life. It is the choice between -
life and death which the court is required to make and this
is left to its sole discretion unaided and unguided by any
legislative yardstick to determine the choice. The only
yardstick which may be said to have been provided by the
legislature is that life sentence shall be the rule and it
is only in exceptional cases for special reasons that death
penalty may be awarded. but it is nowhere indicated by
legislature as to what should be regarded as f 'special
reasons' justifying imposition of death penalty. The awesome
and fearful discretion whether to kill a man or to let him
live is vested in the court and the court is called upon to
exercise . this discretion guided only by its own perception
of what may be regarded as 'special reasons' without any
light shed by the legislature. It is difficult to appreciate
how a law which confers such unguided discretion on the
court without any standards or guidelines on so vital an
issue as the choice between life and death can be regarded
as constitutionally valid. If I may quote the words of
Harlan, J.:

"our scheme of ordered liberty is based, like the
common law, on enlightened and uniformly applied legal
principles, not on ad hoc notions of what is right or
wrong in a particular case"

There must be standards or principles to guide the court in
making the choice between life and death and it cannot be
left to the court to decide upon the choice on an ad hoc
notion of what it conceives to be "special reasons' in a
particular case. That is exactly what we mean when we say
that the government should be of laws and not y of men and
it makes no difference in the application of this princi-
ple, whether 'men' belong to the administration or to the
judiciary. It is a basic requirement of the equality clause
contained in
Article 14
that the exercise of discretion must
always be guided by standards or norms so that it does not
degenerate into arbitrariness and operate unequally on
persons similarly situate. Where unguided and unfettered
discretion is conferred on any authority, whether it be the
executive or the judiciary, it can be exercised arbitrarily
or
capriciously by such authority, because there would be no
standards k or principles provided by the legislature with
reference to which the exercise of the discretion can be
tested. Every form of arbitrariness, whether it be executive
waywardness or judicial adhocism is anathema in our
constitutional scheme. There can be no equal protection
without equal principles in exercise of discretion.
Therefore. the equality clause of the Constitution obligate
that whenever death sentence is imposed it must be a
principled sentence, a sentence based on some standard or
principle and not arbitrary or indignant capital punishment
It has been said that 'a Judge untethered by a text is a
dangerous instrument, and I may well add that Judge power,
uncanalised by clear principles, may be equally dangerous
when the consequence of the exercise of discretion may
result in the hanging of a human being It is obvious that if
judicial discretion is not guided by any standard or norms,
it would degenerate into judicial caprice, which, as is
evident from the foregoing discussion, has in fact happened
and in such a situation, unregulated and un-principled
sentencing discretion in a highly sensitive area involving a
question of life and death would clearly be arbitrary and
hence violative of the equal protection clause contained in

Article 14.
It would also militate against
Article 21
as
interpreted in
Maneka Gandhi
's case (supra) because no
procedure for depriving a person of his life can be regarded
as reasonable, fair and just, if it vests uncontrolled and
unregulated discretion in the court whether to award death
sentence or to inflict only the punishment of life im-
prisonment. The need for well recognised principles to
govern the 'deadly' discretion is so interlaced with fair
procedure that unregulated power not structured or guided by
any standards or principles would fall foul of
Article 21.

The respondents however contendent that the absence of
any standards or guidelines in the legislation did not
affect the constitutional validity of the death penalty,
since the sentencing discretion being vested in the court,
standards or principles for regulating the exercise of such
discretion could always be evolved by the court and the
court could by a judicial fiat lay down standards or norms
which would guide the Judge in exercising his discretion to
award the death penalty. Now it is true that there are cases
where the court lays down principles and standards for
guidance in the exercise of the discretion conferred upon it
by a statute, but that is done by the court only in those
cases where
the principles or standards are gatherable from the
provisions of the statute Where a statute confers discretion
upon a court, the statute may lay down the broad standards
or principles which should guide the court in the exercise
of such discretion or such standards or principles may be
discovered from the object and purpose of the statute, its
underlying policy and the scheme of its provisions and some
times, even from the surrounding circumstances. When the
court lays down standards or principles which should guide
it in the exercise of its discretion, the court does not
evolve any new standards or principles of its own but merely
discovers them from the statute. The standards or principles

laid down by
the court in such a case are not standards or
principles created or evolved by l' the court but they are
standards or principles enunciated by the Iegislature in the
statute and are merely discovered by the court as a matter
of statutory interpretation. It is not legitimate for the
court to create or evolve any standards or principles which
are not found in the statute, because enunciation of such
standards or principles is a legislative function which
belongs to the legislative and not to the judicial
department. Moreover, it is difficult to see how any
standards or principles which would adequately guide the -
exercise of discretion in the matter of imposition of death
penalty can be evolved by the court. Sarkaria, J. himself
has lamented the impossibility of formulating standards or
guidelines in this highly ' sensitive area and pointed out
in the majority judgment:

".. there is little agreement among penologists
and jurists as to what information about the crime and
criminal is relevant and what is not relevant for
fixing the dose of punishment for a person convicted of
a particular offence. According to Cessare Beccaria,
who is supposed to be the intellectual progenitor of
today's fixed sentencing movement, 'crime are only to
be measured by the injury done to society.' But the
20th Century sociologists do not wholly agree with this
view. In the opinion of Von Hirsch, the "seriousness of
a crime depends both on the harm done (or risked) by
the act and degree of actor's culpability." But how is
the degree of that culpability to be measured. Can any
thermometer be devised to measure its degree ?
This passage from the majority judgment provides a most
complete and conclusive answer to the contention of the
respon-
dents that the court may evolve its own standards or
principles for guiding the exercise of its discretion. This
is not a function which can be satisfactorily and adequately
performed by the court more particularly when the judicial
perception of what may be regarded as proper and relevant
standards or guidelines is bound to vary from judge having
regards to his attitude and approach, his predilections and
prejudices and his scale of values and social philosophy.

I am fortified in this view by the decision of the
Supreme Court of the United States in Furman v. Georgia
(supra). The question which was brought before the court for
consideration in that Case was whether the imposition and
execution of death penalty constituted "cruel and unusual
punishment" within the meaning of the Eighth Amendment as
applied to the States by the Fourteenth. The court, by a
majority of five against four, held that the death penalty
as then administered in the United States was
unconstitutional, because it was being used in an arbitrary
manner and such arbitrariness in capital punishment was a
violation of the Eighth Amendment prohibition against "cruel
and unusual punishment" which was made applicable to the
States by the Fourteenth Amendment. Brennan J. and Marshall,
J. took the view that the death - penalty was per se
unconstitutional as violative of the prohibition of the
Eighth Amendment. Brennan, J. held that the death penalty
constituted cruel and unusual punishment as it did not
comport with human dignity and it was a denial of human
dignity for a State arbitrarily to subject a person to an
unusually severe punishment which society indicated that it
did not regard as acceptable and which could not be shown to
serve any penal purpose more effectively than a
significantly less drastic punishment. Marshall, J. stated
that the death penalty violated the Eighth Amendment because
it was an excessive and unnecessary punishment and also
because it was morally unacceptable to the people of the
United States. The other three learned Judges namely,
Douglas, J. Stewart, J. and White, J. did not subscribe to
the view that the death penalty was per se unconstitutional
in all circumstances but rested their judgment on the
limited ground that the death penalty as applied in the
United States was unconstitutional. Douglas, J. argued that
"we deal with a system of law and of justice that leaves to
the uncontrolled discretion of judges or juries the
determination whether defendants committing these crimes
should die or be imprisoned. Under these laws no standards
govern the selection of the penalty. People live or die
dependent on the whim of one man or of twelve,"
Stewart, J. also voiced his concern about the unguided and
unregulated discretion in the sentencing process and
observed: "...the Eighth and Fourteenth Amendments cannot
tolerate the infliction of a sentence of death under legal
systems that permit this unique penalty to be so wantonly
and so freakishly imposed." The remaining four Judges,
namely, Burger, C.J. Blackmun, J. Powell, J. and Rehnquist,
J. took the opposite view and upheld the constitutional
validity of the death penalty in its entirety. It will thus
be seen that the view taken by the majority decision in this
case was that a law which gives uncontrolled and unguided
discretion to the Judge (or the jury) to choose arbitrarily
between death sentence and life imprisonment for a capital
offence violates the Eighth Amendment which inhibits cruel
and unusual punishment. Now Sarkaria, J. speaking on behalf
of the majority, has brushed aside this decision as
inapplicable in India on the ground that we "do not have in
our Constitution any provision like the Eighth Amendment nor
are we at liberty to apply the test of reasonableness with
the freedom with which the Judges of the Supreme Court of
America are accustomed to apply the 'due process' clause." I
am unable to agree with this reasoning put forward in the
majority judgment. I have already pointed out that though
there is no explicit provision in our Constitution
prohibiting cruel and unusual punishment, this Court has in

Francis Mullin
's case (supra) held that immunity against
torture or cruel and unusual punishment or treatment is
implicit in
Article 21
and therefore, if any punishment is
cruel and unusual, it would be violative of basic human
dignity which is guaranteed under
Article 21.
Moreover, in
Maneka Gandhi's case (supra) this court has by a process of
judicial interpretation brought in the procedural due
process clause of the American Constitution by reading in

Article 21
the requirement that the procedure by which a
person may be deprived of his life or personal liberty must
be reasonable, fair and just.
Douglas, J. has also pointed
out in Furman's case (supra) that "there is increasing
recognition of the fact that the basic theme of equal
protection is implicit in 'cruel and unusual' punishment. A
penalty ....should be considered 'unusually' imposed. if it
is administered arbitrarily or discriminatorily" and thus
brought in the equal protection clause for invalidating the
death penalty.
It is also significant to note that despite
the absence of provisions like the American Due Process
Clause and the Eighth Amendment, this Court speaking through
Desai, J. said in
Sunil Batra v. Delhi Administration
.(1)
"Treatment of a human being which offends human
dignity, imposes avoidable torture and reduces the man
to the level of a beast would certainly be arbitrary
and can be questioned under Article 14.. ." Krishna
Iyer, J. was more emphatic and he observed in the same
case.

"True, our Constitution has no 'due process'
clause or the VIII Amendment; but, in this branch of
law, after Cooper.. and Maneka Gandhi........... the
consequence is the same. For what is punitively
outrageous, scandalizing unusual or cruel or
rehabilitatively counter productive is unarguably
unreasonable and arbitrary and is shot down by
Article
and
19 "

It should be clear from these observations in Sunil Batra's
case to which Cbandrachud, C.J. was also a party, that
Sarkaria, J. speaking on behalf of the majority Judges, was
in error in relying on the absence of the American due
process clause and the Eighth Amendment for distinguishing
the decision in Furman's case (supra) and upholding death
penalty. The decision in Furman's case cannot, therefore, be
rejected as inapplicable in India. This decision clearly
supports the view that where uncontrolled and unregulated
discretion is conferred on the court without any standards
or guidelines provided by the legislature, so as to permit
arbitrary and uneven imposition of death penalty, it would
be violative of both
Articles 14
and
21.

It may be pointed out that subsequent to the decision
in Furman's case (supra) and as a reaction to it the
legislatures of several States in the United States passed
statutes limiting or controlling the exercise of discretion
by means of explicit standards to be followed in the
sentencing process. These 'guided discretion' statutes
provided standards typically in the form of specific
aggravating and mitigating circumstances that must be taken
into account before death sentence can be handed down. They
also provided for separate phases of the trial to determine
guilt and punishment (I) A.l.R. 1978 SC 1675.
and for automatic appellate review of death sentences. The
constitutional validity of some of these 'guided discretion'
statutes was challenged in Gregg v. Georgia (supra) and
companion cases and the Supreme Court of the United States
upheld these statutes on the ground that providing specific
sentencing guidelines to be followed in a separate post
conviction phase of the trial would free the sentencing
decision of arbitrariness and discrimination. There is
considerable doubt expressed by leading jurists in the
United States in regard to correctness of this decision,
because in their view the guide lines provided by these
statutes in the form of specific aggravating and/or
mitigating circumstances are too broad and too vague to
serve as an effective guide to discretion. In fact, while
dealing with the challenge to the constitutional validity of
a 'guided discretion' statute enacted by the Legislature of
Massachusettes, the Supreme Court of Massachusettes by a
majority held in District Attorney for the Suffolk District
v. Watson (1) that the statute providing for imposition of
death penalty was unconstitutional on the ground that it was
violative of
Article 26
of the Declaration of Rights of the
Massachusettes Constitution which prohibits infliction of
cruel or unusual punishment. Henneseey, C.J. pointed out
that in enacting the impugned statute the Legislature of
Massachusettes had clearly attempted to follow the mandate
of the Furman opinion and its progeny by promulgating a law
of guided and channelled jury discretion, but even so it
transgressed the prohibition of
Article 26
of the
Declaration of Rights of the State Constitution. The learned
Chief Justice observed: " .. it follows that we accept the
wisdom of Furman that arbitrary and capricious infliction of
death penalty is unconstitutional. However, we add that such
arbitrariness and discrimination, which inevitably persists
even under a statute which meets the demands of Furman,
offends
Article 26
of the Massachusettes Declaration of
Rights." But we are not concerned here with the question as
to whether the decision in Gregg's case represents the
correct law or the decision of the Massachusettes Supreme
Court in Watson's case. That controversy does not arise here
because admittedly neither the
Indian Penal Code
nor any
other provision of law sets out any aggravating or
mitigating circumstance or any other considerations which
must be taken into account in determining whether death
sentence should be
awarded or not. Here the sentencing discretion conferred
upon the court is totally uncontrolled and unregulated or if
I may borrow an expression from Furman's decision, it is
'standardless' and unprincipled'.

It is true that there are certain safeguards provided
in the
Code of Criminal Procedure
, 1973 which are designed
to obviate errors in the exercise of judicial discretion in
the matter of imposition of death penalty. Section 235 sub
section (2) bifurcates the trial by providing two hearings
one at the pre-conviction stage and another at the pre-
sentence stage so that at the second stage following upon
conviction, the court can gather relevant information
bearing on the question of punishment and decide, on the
basis of such information, what would be the appropriate
punishment to be imposed on the offender. Section 366 sub-
section (1) requires the court passing a sentence of death
to submit the proceedings to the High Court and when such
reference is made to the High Court for confirmation of the
death sentence, the High Court may under section 367 direct
further inquiry to be made or additional evidence to be
taken and under section 368, confirm the sentence of death
or pass any other sentence warranted by law or annual or
alter the conviction or order a new trial or acquit the
accused. Section 369 enjoins that in every reference so
made, the confirmation of the sentence or any new sentence
or order passed by the High Court, shall, when such court
consists of two or more judges, be made, passed and signed
by at least two of them. Then there is also a proviso in
section 379 which says that when the High Court on appeal
reverses an order of acquittal and convicts the accused and
sentences him to death, the accused shall have a right to
appeal to the Supreme Court. Lastly there is an over-riding
power conferred on the Supreme Court under
Article 136
to
grant, in its discretion, special leave to appeal to an
accused who has been sentenced to death. These are
undoubtedly some safeguards provided by the legislature, but
in the absence of any standards or principles provided by
the legislature to guide the exercise of the sentencing
discretion and in view of the fragmented bench structure of
the High Courts and the Supreme Court, these safeguards
cannot be of any help in eliminating arbitrariness and
freakishness in imposition of death penalty. Judicial ad
hocism or waywardliness would continue to characterise the
exercise of sentencing discretion whether the Bench be of
two judges of the High Court or of two or three judges of
the Supreme Court and arbitrary and uneven incidence of
death
penalty would continue to afflict the sentencing process
despite these procedural safeguards. The reason is that
these safeguards are merely peripheral and do not attack the
main problem which stems from lack of standards or
principles to guide the exercise of the sentencing
discretion. Stewart, J. pointed out in Gregg's case (supra),
"...the concerns expressed in Furman that the penalty of
death not be imposed in an arbitrary or capricious manner
can be met by a carefully drafted statute that ensures that
the sentencing authority is given adequate information and
guidance. As a general proposition these concerns are best
met by a system that provides for a bifurcated proceeding at
which the sentencing authority is apprised of the
information relevant to the imposition of sentence and
provided with standards to guide its use of the
information." The first requirement that there should be a
bifurcated proceeding at which the sentencing authority is
apprised of the information relevant to the imposition of
sentence is met by the enactment of section 235 sub-section
(2), but the second requirement that the sentencing
authority should be provided with standards to guide its use
of the information is not satisfied and the imposition of
death penalty under section 302 of the Indian Penal "ode
read with section 354 sub-section (3) of the
Code of
Criminal Procedure
, 1973 must therefore be held to be
arbitrary and capricious and hence violative of
Articles 14

and
21.

There is also one other characteristic of death
penalty that is revealed by a study of the decided cases and
it is that death sentence has a certain class complexion or
class bias in as much as it is largely the poor and the
down-trodden who are the victims of this extreme penalty. We
would hardly find a rich or affluent person going to the
gallows. Capital punishment, as pointed out by Warden Duffy
is "a privilege of the poor." Justice Douglas also observed
in a famous death penalty case "Former Attorney Pamsey Clark
has said: 'it is the poor, the sick, the ignorant, the
powerless and the hated who are executed'. "So also Governor
Disalle of Ohio State speaking from his personal experience
with the death penalty said:

"During my experience as Governor of Ohio, I found
the men in death row had one thing in common; they were
penniless. There were other common denominators, low
mental capacity, little or no education, few friends,
broken
homes-but the fact that they had no money was a
principal factor in their being condemned to death..."

The same point was stressed by Krishna Iyer, J. in
Rajendra
Prasad
's case (supra) with his usual punch and vigour and in
hard hitting language distinctive of his inimitable style:

"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."

"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 whom
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."

There can be no doubt that death penalty in its actual
operation is discriminatory, for it strikes mostly against
the poor and deprived sections of the community and the rich
and the affluent usually escape from its clutches. This
circumstance also adds to the arbitrary and capricious
nature of the death penalty and renders it unconstitutional
as being violative of
Articles 14
and
21.
Before I part with this topic I may point out that only
way in which the vice of arbitrariness in the imposition of
death penalty can be removed is by the law providing that in
every case where the death sentence is confirmed by the High
Court there shall be an automatic review of the death
sentence by the Supreme Court sitting as a whole and the
death sentence shall not be affirmed or imposed by the
Supreme Court unless it is approved unanimously by the
entire court sitting enbanc and the only exceptional cases
in which death sentence may be affirmed or imposed should be
legislatively limited to those where the offender is found
to be so depraved that it is not possible to reform him by
any curative or rehabilitative therapy and even after his
release he would be a serious menace to the society and
therefore in the interest of the society he is required to
be eliminated. Of course, for reasons I have already
discussed such exceptional cases would be practically nil
because it is almost impossible to predicate of any person
that he is beyond reformation or redemption and therefore,
from a practical point of view death penalty would be almost
nor-existent But theoretically it may be possible to say
that if the State is in a position to establish positively
that the offender is such a social monster that even after
suffering life imprisonment and undergoing reformative and
rehabilitative therapy, he can never be reclaimed for the
society, then he may be awarded death penalty. If this test
is legislatively adopted and applied by following the
procedure mentioned above, the imposition of death penalty
may be rescued from the vice of arbitrariness and caprice.
But that is not so under the law as it stands to-day.

This view taken by me in regard to the constitutional
validity of the death penalty under
Articles 14
and
renders it unnecessary for me to consider the challenge
under
Article 19
and I do not therefore propose to express
any opinion on that question. But since certain observations
have been made in the majority judgment of Sarkaria, J.
which seem to run counter to the decisions of this Court in
R.C Cooper v. Union of India (
1) and Maneka Gandhi
's case
(supra). I am constrained to add a few words voicing my
respectful dissent from those observations.

Sarkaria, J.
speaking on behalf of the majority judges has observed in
the present case that the 'form and object test or 'pith and
substance rule' adopted by
Kania, C.J. and Fazal Ali, J. in
A.K.. Gopalan v. State of
Madras
(supra) is the same as the 'test of direct and
inevitable effect' enunciated in R.C. Cooper's case and
Maneka Gandhi's case and it has not been discarded or
jettisoned by these two decisions.

I cannot look with
equimanity on this attempt to resucitate the obsolute 'form
and object test' or 'pith and substance rule' which was
evolved in
A.R. Gopalan
's case and which for a considerable
number of years dwarfed the growth and development of
fundamental rights and cut down their operational amplitude.
This view proceeded on the assumption that certain articles
in the Constitution exclusively deal with specific matters
and where the requirement of an Article dealing with a
particular matter in question is satisfied and there is no
infringement of the fundamental right guaranteed by that
Article, no recourse can be had to a fundamental right
conferred by another Article and furthermore, in order to
determine which is the fundamental right violated, the court
must consider the pith and substance of the legislation and
ask the question: what is the object of the legislature in
enacting the legislation; what is the subject matter of the
legislation and to which fundamental right does it relate.

But this doctrine of exclusivity of fundamental rights was
clearly and unequivocally over-ruled in R.C. Cooper's case
by a majority of the Full Court, Ray, J. alone dissenting
and so was the 'object and form test' or 'pith and substance
rule' laid down in
A.K. Gopalan
's case.
Shah, J. speaking on
behalf of the majority Judges said in R.C. Copper's case
(supra)
".. it is not the object of the authority making
the law impairing the right of a citizen, nor the form
of action that determines the protection he can claim;
it is the effect of the law and of the action upon the
right which attract the jurisdiction of the Court to
grant relief. If this be the true view, and we think it
is, in determining the impact of State action upon
constitutional guarantees which are fundamental, it
follows that the extent of protection against
impairment of a fundamental right is determined not by
the object of the Legislature nor by the form of the
action, but by its direct operation upon the
individual's rights."

"We are of the view that the theory that the
object and form of the State action determine the
extent of pro-
tection which the aggrieved party may claim is not
consistent with the constitutional scheme...."

"In our judgment, the assumption in A.K Gopalan's
case that certain articles in the Constitution
exclusively deal with specific matters and in
determining whether there is infringement of the
individual's guaranteed rights, the object and the form
of the State action alone need be considered and effect
of the laws on fundamental rights of the individuals in
general will be ignored cannot be accepted as correct."

This view taken in R.C. Cooper's case has since then been
consistently followed in several decisions of which I may
mention only a few, namely,
Shambhu Nath Sarkar v. State of
West Bengal
(1);
Haradhan Saha v. State of West Bengal
;(
2)
Khudiram Das v. State of West Bengal
(3) and Maneka Gandhi's
case (supra).

I cannot therefore assent to the proposition
in the majority judgment that R.C. Cooper's case and
Maneka
Gandhi
's case have not given a complete go by to the test of
direct and indirect effect, some times described as 'form
and object test' or 'pith and substance rule' evolved by
Kania, C.J. and Fazal Ali, J. in
A.K. Gopalan
's case and
that the 'pith and substance rule' still remains a valid
rule for resolving the question of the constitutionality of
a law assailed on the ground of its being violative of a
fundamental right. Nor can I agree with the majority
judgment when it says that it is
Article 21
which deals with
the right to life and not
Article 19
and
section 302
of the
Indian Penal Code is therefore not required to be tested on
the touchstone of any one or more of the clauses of Article

19. This approach of the majority judgment not only runs
counter to the decision in R.C. Cooper's case and other
subsequent decisions of this Court including Maneka Gandhi's
case but is also fraught with grave danger inasmuch as it
seeks to put the clock back and reverse the direction in
which the law is moving towards realisation of the full
potential of fundamental rights as laid down in R.C.
Cooper's ease and
Maneka Gandhi
's case. It is significant to
note that the doctrine of exclusi-
vity enunciated in
A.K. Gopalan
's case led to the property
rights under
Article 19(1)(f)
and
being treated as
distinct and different rights traversing separate grounds,
but this view was over turned in Kochune's case (1) where
this Court by a majority held that a law seeking to deprive
a person of his property under
Article 31
must be a valid
law and it must therefore meet the challenge of other
fundamental rights including
Article 19(1)(f).

This Court
over ruled the proposition laid down in
State of Bombay v.
Bhanji Munji
(2) that
Article 19(1)(f)
read with clause (5)
postulates the existence of property which can be enjoyed
and therefore if the owner is deprived of his property by a
valid law under
Article 31
, there can be no question of
exercising any rights' under
Article 19(1)(f)
in respect of
such property. The court ruled that even io a law seeks to
deprive a person of his property under
Article 31
, it must
still, in order to be valid, satisfy the requirement of

Article 19 (1)(f)
read with clause (5). If this be the true
position in regard to the inter-relation between
Article 19
(1) (f)
and
Article 31
, it is difficult to see why a law
authorising deprivation of the right to life under
Article
should not have to meet the test of other fundamental
rights including those set out in the different clauses of

Article 19.
But even if section 302 in so far as it provides
for imposition of death penalty as alternative punishment
has to meet the challenge of Article 19. the question would
still remain whether the 'direct and inevitable consequence'
of that provision is to affect any of the rights guaranteed
under the Article. That is a question on which I do not wish
to express any definite opinion.

It is sufficient for me to
state that the 'object and form test' or the 'pith and
substance rule' has been completely discarded by the
decision in R.C. Cooper's case and
Maneka Gandhi
's case and
it is now settled law that in order to locate the
fundamental right violated by a statute, the court must
consider what is the direct and inevitable consequence of
the statute. The impugned statute may in its direct and
inevitable effect invade more than one fundamental right and
merely because it satisfies the requirement of one
fundamental right, it is not freed from the obligation to
meet the challenge of another applicable fundamental right.

These are the reasons for which I made my order dated
May 9, 1980 declaring the death penalty provided under
section 302 of the
Indian Penal Code
read with section 354 sub-section (3) of
the
Code of Criminal Procedure
, 1973 is unconstitutional and
void as being 5 violative of
Articles 14
and
21.
I must
express my profound regret at the long delay in delivering
this judgment but. the reason is that there was a
considerable mass of material which had to be collected from
various sources and then examined and analysed and this took
a large amount of time. B
S.R. Appeal dismissed.