Summarize the following court judgment. etitions Nos. 503	516	 532	 534	 535	 537	 538 39	 541 45	 543 45	 553	554	 555	 565	 574	 586	 556 57	 592 94	 604 06	 676	 600	 533	 1414 and 1423 of 1983. (Under article 32 of the Constitution of India) WITH Special Leave Petition (Criminal) No. 196 of 1983 From the Judgment and Order dated the 6th December	 1982 of the Allahabad High Court in Criminal Appeal No. 1357/82. AND Writ Petition Nos. 286	 345 48	 428	 429 of 1983. (Under article 32 of the constitution of India) Advocates For The Petitioners N.M. Ghatate and Mr. S.V. Deshpande in WP. R.C. Kohli	 A.C. in WPs. 516 and 586. R.K. Garg	 R. Sathish and V.K. Pandita	 in WPs. 534 and 565. A.N. Bardaiyar and B.B. Sinha in WP. A.K. Srivastava	 A.C. in WP. O.P. Verma in WPs. 538 539. Mrs. K.Hingarani in WPs. 541 42. B.S. Varshney and C.L. Sahu in WPs. 543 45. L.K. Gupta in WP. Raju Ramachandran in WP.555. 9 Miss Kailash Mehta and Mrs. Naresh Bakshi in WPs. 5652 600. Arun Madan	 A.C. in WPs. 556 557. V.D. Khanna in WPs. 604 06. S.N. Mehta	 A.C. in WP.676. Anil Kumar Gupta and Brij Bhushan in WP. D.K. Garg in WP. 1414	 1697 98 and 286. Aruneshwar Gupta in WP. S.K.Mehta	 P.N. Puri and M.K. Dua in S.L.P. No. 196/83. Solmon Khurshid and L.R. Singh in WPs. 345 48. Miss Lalita Kohli	 A.C. in WP. Petitioner in Person in WP. Nemo in WPs. 534	574	529 94 and 428. Advocates For the Respondents: K.Parasaran Soliciter General	 for State of Maharashtra and U.O.I. K.G. Bhagat Additional Soliciter General	 N.C. Talukdar	 Anil Dev Singh	 C.V. Subba Rao and Miss A. Subhashini M.N. Shorff for State of Maharashtra. A.V. Rangam for State of Tamil Nadu. Swaraj Kaushal for State of Karnatka. Harbans Singh and D.D. Sharma for State of Punjab. R.N. Poddar for State of Haryana. Dalveer Bhandari for State of U.P. B.B. Singh for State of Bihar. 10 Ram Jethmalani for State of Karnatka and for interveners. Miss Rani Jethmalani and Shrikant Bhat	 in WP. Nos. 532	 534 and 535 of 1983. Chandrakant Lecturer in the Department of Forensic Medicine	 All India Institute of Medical Sciences	 intervenor in person in WP. No. 503. The Judgment of the Court was delivered by CHANDARCHUD	 C.J. : In this batch of Writ Petitions	 the petitioners were sentenced to death for the offence of murder under section 302 of the Penal Code. They have nothing in common except that they committed murders and have been sentenced to death. The sentence of death imposed upon them has become final in the sense that the Special Leave Petitions	 Appeals	 Review Petitions and Mercy Petitions filed by them have been dismissed	 some of these more than once. The main question which has been raised by the petitioners in these writ petitions relates to the validity of the mode of execution of the death sentence. Section 354(5) of the Code of Criminal Procedure provides that: When any person is sentenced to death	 the sentence shall direct that he be hanged by the neck till he is dead The petitioners challenge the constitutional validity of this provision on the ground that hanging a convict by rope is a cruel and barbarous method of executing a death sentence	 which is violative of Article 21 of the Constitution That article provides that: No person shall be deprived of his life or personal liberty except according to procedure established by law. The validity of death sentence which Section 302 prescribes for the offence of murder was upheld by this Court in Bachan Singh. 11 The ratio of that decision is that the normal sentence for murder is life imprisonment and that the sentence of death can be imposed in a very exceptional class of cases	 described in that judgment as the 'rarest of rare cases '. Which kind of cases would precisely fall within that category is in the very nature of things difficult to define and even to describe. But	 all the same	 a studied attempt was made by this Court in Machhi Singh to identify	 though not to crystalize	 the area of those rarest of rare cases in which death sentence can justifiably be imposed. Shri Garg 's criticism of that judgment that it virtually overrules Bachan Singh and Jagmohan Singh is wide off the mark. In Machhi Singh	 the learned Judges have but formulated broad guidelines to assist the Courts in deciding the vexed question as to whether the death sentence is at all called for. Evidently	 the judgment does not enlarge the scope of the rule in Bachan Singh by broadening the narrow field of cases which call for the death sentence. But	 Machhi Singh is by the way. The validity of the death sentence for the offence of murder having been upheld by this Court after a careful and prolonged discussion	 there is no justification for reopening that question	 though such a suggestion was made half heartedly before us	 towards the conclusion of the arguments. The question that	 in the circumstances mentioned in Bachan Singh	 it is permissible to impose the sentence of death must be treated as concluded and not any longer open to argument. There has to be finality to litigation	 criminal as much as civil	 if law is not to lose its credibility. No one of course can question that law is a dynamic science	 the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends. Life is not static. The purpose of law is to serve the needs of life. Therefore law cannot be static. But	 that is not to say that Judgments rendered by this Court after a full debate should be reconsidered every now and then their authority doubted or diluted. That would be doing disservice to law since certainty over a reasonably foreseeable period is the hallmark of law. The learned Solicitor General has raised a preliminary objection to these Writ Petitions on the ground that the question 12 which is sought to be argued by the petitioners is concluded by the judgment rendered by a Constitution Bench of this Court in Bachan Singh. It is urged that since the question is not res integra	 it is not open to the petitioners to raise it	 nor indeed any reason or justification for this Court to entertain it. Learned counsel for the petitioners	 led by Shri R.K. Garg	 answer this objection by contending that the only question which arose in Bachan Singh was whether it is constitutionally permissible to prescribe the sentence of death. It is urged on behalf of the petitioners that the question as regards the validity of section 354(5) of the Code of Criminal Procedure was neither argued in Bachan Singh nor considered by the Court. The objection taken by the learned Solicitor General is not without substance but for reasons which we will presently indicate	 we do not propose to accept it. At page 196 of the Report in Bachan Singh	(1) the main arguments of the 'Abolitionists ' which were	 "substantially adopted" by counsel for the petitioners therein are reproduced in clauses (a) (b) and (c). Under Clause (c)	 the argument is reproduced thus: "Execution by whatever means and for whatever offence is cruel	 inhuman and degrading punishment"	 by which is obviously meant 'execution of death sentence '. The argument mentioned in clause (a) to the effect that the death penalty is unconstitutional because it is irreversible is considered at pages 196 and 197 of the Report. The argument mentioned in clause (b) as to whether death penalty serves any penological purpose at all is considered at page 197. Though the arguments mentioned in clauses (a) and (b) at page 196 of the Report have been specifically considered under separate heads as stated above	 the argument mentioned in clause (c) at page 196 relating to the execution of death sentence has not been considered under a separate head. The discussion of the	 argument whether death penalty	 serves any penological purpose	 is concluded at the end of the third line on page 222. The heading "Regarding (c)" should have appeared in the Report after the said third line and before the fresh paragraph which beings thus: "We will now consider the issue whether the impugned limb of the provision in section 302	 Penal Code	 contravenes Article 21 of the Constitution". That this should have been so is clear from the fact that after considering the particular argument at pages 222 and 223	 Justice Sarkaria who spoke for the majority concludes: 13 "Under the successive Criminal Procedure Code 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 the 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". Bhagwati	 J.	 who dissented from the majority considered the question of the constitutional validity of the death sentence	 both from the substantive and the procedural points of view. At page 286	 the learned Judge says that "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". After extracting quotation from Dostoyevsky and Canns which bear upon the execution of death sentence	 the learned Judge observes: "There can be no stronger words to describe the utter depravity and inhumanity of death sentence". After making this observation Bhagwati	 J.	 proceeds thus: "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 vs Japan	 the Japanese Supreme Court held that execution by hanging does not correspond to cruel punishment ' inhibited by Article 36 of the Japanese Constitution. But whether amongst all the 14 methods of execution	 hanging is the most humane or in 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." (emphasis ours). Thereafter	 the learned Judge refers to the description of the method of hanging given by warden Duffy of San Quentin	 a high security prison in America and the description given in 1927 by a surgeon who witnesses a double execution and records his conclusion by saying that the passages extracted by him established beyond doubt that "the execution of sentence of death by hanging does involve intense physical pain and suffering	 through it may be regarded by some as more humane than electrocution or application of lethal gas." This discussion will show that both the majority and the minority in Bachan Singh considered the question of the validity of the death sentence from the procedural aspect also	 with special reference to the method of hanging prescribed by law for executing the death sentence. While upholding the validity of death sentence	 the majority did not overlook and	 in fact	 took into consideration the circumstance that the mode prescribed by the Criminal Procedure Code for executing the death sentence is hanging. On the other hand	 while striking down the validity of death sentence Bhagwati	 J.	 was influenced by the consideration that the mode of hanging prescribed by law for executing the death sentences was itself cruel and barbarous. Though this is the true position	 the reason why we are not inclined to uphold the preliminary objection taken by the learned Solicitor General is that the question as regards the constitutional validity of section 354 (5) of the Code of Criminal Procedure was neither raised squarely by the petitioners in Bachan Singh nor considered directly by the Court. If we may so put it	 the question as regards the validity of section 354 (2) of the Code was not directly and substantially in issue in Bachan Singh. The questions which arose for consideration in that case are formulated in the majority judgment at page 169 as Questions I and II. The majority referred to the mode of execution of the death sentence only incidentally. The question whether the particular mode of executing the death sentence prescribed by section 354 (5) of the Code violates the provisions of Article 21 was not considered specifi 15 cally by the majority as in independent issue. Considering the judgment of Bhagwati	 J.	 also as a whole it would appear that the principal reason for which the learned Judge struck down the death sentence is its irrevocability	 its arbitrariness and its lack of purpose. One of us was a party to the decision in Bachan Singh and if recollections do not fail so soon and are permissible aids to the understanding of a decision it would not be right to say that the question as regards the constitutional validity of section 354 (5) of the Code was either directly put in issue in that case or was argued upon or was considered by the Court as an independent reason bearing upon the validity of the death sentence. The question which the petitioners have raised in these writ petitions is important not only from the legal and constitutional point of view but also from the sociological point of view. It will not be proper to side track that question and refuse to examine it fully because of the incidental consideration which it received in Bachan Singh. Accordingly	 we reject the preliminary objection raised by the learned Solicitor General and proceed to examine the question raised by the petitioners on its own merits	 on the basis that the question is still open to argument. The petitioners	 who have been sentenced to death for acts of outrageous brutality	 have presented their case with an air of injured innocence. Their claim is that no matter what pain and suffering they may have inflicted upon their victims and their families	 no pain or suffering whatsoever shall be caused to them while executing the death sentence. It is urged on their behalf by Shri R.K. Garg and the other learned counsel that even if it may be lawful to impose the death sentence in an exceptional class of cases	 it is impermissible to execute that sentence even in those cases	 since it is inhuman and cruel to take human life under any circumstances	 even under a decree of a Court. That is the fundamental premise of the petitioners ' contention. Secondly it is urged that the method prescribed by section 354(5) of the Code for executing the death sentence is inhuman	 barbarous and degrading and therefore that method cannot be employed for executing the death sentence. It is the constitutional obligation of the State to provide for a humane and dignified mode of executing the death sentence	 which will not involve torture or cruelty of any kind. It is urged that if the State fails to discharge that obligation	 no death sentence can be executed	 howsoever justifiably it may have been imposed. The Code of Criminal Procedure prescribes only one method of executing the 16 death sentence	 namely	 by hanging and if that method violates the mandate of Article 21	 the sentence must remain unexecuted	 since the Court cannot substitute any other method of execution for the only method prescribed and envisaged by law. Finally	 it is argued that the burden is on the State to prove that the method of execution of the death sentence prescribed by section 354(5) of the Code is a humane and civilized method and that it does not involve pain	 cruelty or degradation of any kind. This is so because	 the burden to establish that any particular act	 challenged as unconstitutional	 is just and fair always lies on the State. Therefore	 it is not for the petitioners to show that any other method of executing the death sentence would be less painful	 cruel or degrading. According to the petitioners	 the State must fail if it does not discharge the burden which lies heavily upon it. The petitions cannot be dismissed on the ground that the petitioners have failed to establish that the method prescribed by section 354(5) involves unnecessary pain	 torture or cruelty; or that other methods of executing the death sentence are either not cruel or painful or are less cruel and painful than the method prescribed by section 354(5) of the Code. These arguments require careful consideration	 uninfluenced by the circumstance that the demand for civilized	 humane and painless treatment is made by those who have been found guilty of subjecting their victims to uncivilized and inhuman acts involving great torture and suffering. The retribution involved in the theory "Tooth for tooth ' and 'an eye for eye ' has no place in the scheme of civilized jurisprudence and we cannot turn a deaf ear to the petitioners ' claim for justice on the ground that the enormity of their crimes has resulted in grave injustice to the victims of these crime. We are concerned to ensure due compliance with constitutional mandates	 no matter the occasion. If it were not so	 smugglers who are detained under the laws of detention shall have to be denied the protection of Article 22 of the Constitution on the ground that they are guilty of acts which sabotage the economy of the country. Justice has to be done dispassionately in accordance with the constitutional attitudes whether it is a murderer or a smuggler who asks for it. Law cannot demand its pound of flesh. At one stage we were inclined to decide the main question argued by the petitioners without considering the rival contentions as to the burden of proof. We thought that whether the burden lies on the petitioners to show that the method prescribed by section 354(5) of the Code is constitutionally impermissible or whether the 17 burden lies on the State to prove that the particular method is permissible within the frame work of the Constitution	 we should pronounce upon the legality of that method on the basis of the data which has been placed before us by the both sides. The question of burden of proof ceases to have the same importance when the entire evidence is before the Court	 each side having placed before it such material as it considers necessary to support its case. But then	 the fact that parties have produced their respective data before the Court does not absolve the Court from considering the question whether	 on the basis of the entire material before it	 the burden can be said to have been discharged by the party on whom it lies. Besides	 counsel engaged themselves into quite some argument over the question of burden of proof and since that question is of importance and arises frequently	 it is just as well that we decide it. We propose to decide that question before adverting to the other contentions raised on behalf of the petitioners. It is urged by Shri Jethmalani who appears on behalf of the Government of Karnataka	 as also on behalf of the Bar Council of India who were allowed to intervene in these proceedings	 that every statute carries with it a strong presumption of constitutionality and a heavy burden lies upon those who challenge that statute to displace that presumption. In support of this submission	 the learned counsel relies principally on the decision of a seven Judge Bench of this Court in Madhu Limaye vs Sub Divisional Magistrate	 Monghyr	 which	 he says	 was not noticed in Bachan Singh. The learned Attorney General (the Solicitor General became the Attorney General during the hearing of these petitions) also argued that the decisions of this Court have almost uniformly taken the view that the burden to displace the presumption of constitutionality lies on the person who challenges the statute as unconstitutional. Most of the important decisions which have a bearing on the question of burden of proof have been noticed in the majority and minority judgments in Bachan Singh. Sarkaria J	 speaking for the majority	 has summed up the position thus: "With regard to onus	 no hard and fast rule of universal application in all situations	 can be deduced from the decided cases. In some decisions such as 18 Saghir Ahmed vs State of Uttar Pradesh and Khyerbari Tea Co. vs State of Assam & Ors 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 clause 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. " As an instance of the contrary trend	 Sarkaria	 J.	 has cited the judgment of Krishna Iyer	 J.	 in B. Banerji vs Anita Pan	 which reiterates the ratio in Ram Krishna Dalmia to the following effect: ". there is always a presumption 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. " 19 Referring to the judgment of this Court in R.M.D. Chamarbaugwala and to the first proposition in Chapter III of Seervai 's Constitutional Law (Page 54 2nd Edition; page 118	 3rd Edition) Krishna Iyer. J. observed: "We have to remember the comity of the constitutional instrumentalities and raise the presumption that the legislature understands and appreciates the needs of the people and is largely aware of the frontiers of and limitations upon its power. 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. " Sarkaria	 J.	 has finally referred to the Seven Judge Bench decision of this Court in Pathumma vs State of Kerala	 in while Fazal Ali	 J.	 speaking for himself	 Beg	 C.J.	 Krishna Iyer and Jaswant Singh. JJ.	 declared the law in the following terms: "It is obvious that the Legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court will	 therefore	 interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the 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. In the case of Mohd. Hanif Quareshi vs The State of Bihar	 while adverting to this aspect Das	 C J. 20 as he then was	 speaking for the Court observed as follows: "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. " As we have said at the outset	 these decisions have been discussed in the majority and minority judgments in Bachan Singh. The decision of a Bench of seven Judges on which Shri Jethmalani has placed strong reliance is the one reported in Madhu Limaye. The question which arose for consideration in that case was whether the provisions of section 144 and Chapter VIII of the Code of Criminal Procedure could be said to be in the interests of public order in so far as the right of freedom of speech and expression	 the right of assembly	 and the right to form associations and unions are concerned and in the interests of the general public in so far as they curtailed the freedom of movement throughout the territory of India. The petitioners and the interveners therein invoked the American doctrine of preferred position for the fundamental rights	 particularly the right to freedom of speech and expression. Hidayatullah	 C.J.	 who spoke for six learned Judges (Bhargava. J. dissenting on another point) reviewed the preferred position doctrine and concluded that it did not any longer have the support of the Supreme Court of the United States and therefore. in America	 "unreasonableness of the law has to be established"	 The learned Chief Justice proceeded to say: "In this Court the preferred position doctrine has never found ground although vague expressions such as 'the most cherished rights '	 'the inviolable freedoms '	 sometimes occur. But this is not to say that any one Fundamental Right is superior to the other or that 21 Article 19 contains a hierarchy. Pre constitution laws are not to be regarded as unconstitutional. We do not start with the presumption that	 being a pre constitution law	 the burden is upon the State to establish its validity. All existing laws are continued till this Court declares them to be in conflict with a fundamental right and	 therefore	 void. The burden must be placed on those who contend that a particular law has become void after the coming into force of the Constitution by reason of Article 13(1) read with any of the guaranteed freedoms. " These decisions on the question of burden of proof must be divided into two categories: those which deal with the violation of the equality clause in Article 14 of the Constitution and those others with deal with the violation of the guarantees contained in Article 19. The leading decision on the former category of cases is Ram Krishna Dalmia in which Das	 C.J.	 formulated six principles as emerging out of an analysis of the cases under Article 14. The passage at page 297 of the Report in which these principles are set out has become a classic and a part of it has already appeared in this judgment as a quotation extracted by Krishna Iyer	 J.	 in B. Banerji vs Anita Pan. It may bear repetition to say that according to the learned Chief Justice	 "there is always a presumption 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. " The concluding words of the second of these two principles show that the said principle is limited in its application to cases arising under Article 14. The question of discrimination arises under Article 14 and not under Article 19 of the Constitution. Any case	 even a locus classicus	 is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations	 factual and legal	 but care must be taken to see that this is not done mechanically	 that is	 without a close examination of the rationale of the decision which is cited as a precedent Human mind	 trained even in the strict discipline of law	 is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly identical situations. In Ram Krishna Dalmia	 the 22 Court was dealing with a challenge to section 3 of the and the notification issued by the Central Government under that section appointing a Commission of Inquiry to inquire into and report on the affairs of certain companies. The Act was challenged on the ground that it conferred an arbitrary power on the Government to issue notifications appointing Commissions of Inquiry	 while the notification was challenged on the ground that the petitioners and their companies were arbitrarily singled out for the purpose of hostile and discriminatory treatment and subjected to a harassing and oppressive inquiry. The principles enunciated by the learned Chief Justice on behalf of the Court have to be understood in the context of these facts	 the context being that the case before the Court involved considerations limited and germane to the application of Article 14. Apart from certain other questions which are not relevant for our purpose	 the entire discussion of the facts and law in that judgment revolves round the provisions of the Article. Indeed	 Article 14 is the king pin of the decision in Ram Krishna Dalmia. It is wrong to treat the principles enunciated by the learned Chief Justice as of universal application and	 in that process	 to apply them to cases arising under other articles of the Constitution	 particularly Articles 19 and 21. The principle which underlies Article 14 is that equals must be treated equally	 that is to say	 that "laws must operate equally on all persons under like circumstances". Article 14	 though apparently absolute in its terms	 permits the State to pass a law which makes a classification	 so long as the classification is based on intelligible differentia having a real nexus with the object which is sought to be achieved by the law. In the generality of cases under Article 14	 the challenge is based on the allegation that the impugned provision is discriminatory since it singles out the petitioner for hostile treatment	 from amongst persons who	 being situated similarly	 belong to the same class as the petitioner. It is plain that in matters of this nature	 the petitioner has to plead and prove that there are others who are situated similarly as him and that he is singled out and subjected to unfavourable treatment. As observed by Shah J. in Western U.P. Electric Power and Supply Co. Ltd. vs State of U.P.: "Article 14 of the Constitution ensures equality among equals: its aim is to protect persons similarly 23 placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced	 some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law. " Whether there are other persons who are situated similarly as the petitioner is a question of fact. And whether the petitioner is subjected to hostile discrimination is also a question of fact. That is why the burden to establish the existence of these facts rests on the petitioner. To cast the burden of proof in such cases on the State is really to ask it to prove the negative that no other persons are situated similarly as the petitioner and that	 the treatment meted out to the petitioner is not hostile. Thus	 there is a fundamental distinction between cases arising under Article 14 and those which arise under Articles 19 and 21 of the Constitution. In a challenge based on the violation of Articles 19 and 21	 the petitioner has undoubtedly to plead that	 for example	 his right to free speech and expression is violated or that he is deprived of his right to life and personal liberty. But once he shows that	 which really is not a part of the "burden of proof"	 it is for the State to justify the impugned law or action by proving that	 for example	 the deprivation of the petitioner 's right to free speech and expression is saved by clause (2) of Article 19 since it is in the nature of a reasonable restriction on that right in the interests of matters mentioned in clause (2)	 or that	 the petitioner has been deprived of his life or personal liberty according to a just	 fair and reasonable procedure established by law. In cases	 arising under Article 19	 the burden is never on the petitioner to prove that the restriction is not reasonable or that the restriction is not in the interests of matters mentioned in clause (2). Likewise	 in cases arising under Article 21	 the burden is never on the petitioner to prove that the procedure prescribed by law which deprives him of his life or personal liberty is unjust	 unfair or unreasonable. That is why the ratio of cases which fall under the category of the decision in Ram Krishna Dalmia must be restricted to those arising under Article 14 and cannot be extended to cases arising under Article 19 or Article 21 of the Constitution. 24 Saghir Ahmed vs The State of U.P. is a typical instance of a case arising under Article 19 of the Constitution. The U.P. Road Transport Act	 1951 which was passed prior to the First Amendment Amendment to the Constitution which introduced clause (6) in Article 19	 was challenged in that case on the ground that it conflicted with the fundamental right of the petitioner guaranteed under Article 19 (1) (g) of the Constitution. Dealing with the question of burden of proof Mukherjea	 J.	 who spoke for the Constitution Bench	 stated the position thus: "With regard to the second point also we do not think that the learned Judges have approached the question from the proper stand point. There is undoubtedly a presumption in favour of the constitutionality of a legislation. But when the enactment on the face of it is found to violate a fundamental right guaranteed under Article 19 (1) (g) of the Constitution	 it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in clause (6) of the article. If the respondents do not place any material before the Court to establish that the legislation comes within the permissible limits of clause (6)	 it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community." (Page 726) When the enactment on the face of it is violation of a fundamental right guaranteed by Article 19	 the petitioner is absolved even of that modicum of an obligation to show that a right guaranteed to him by Article 19 is violated. When the face of the law is not so clear	 the petitioner does have to discharge the obligation of proving the fact of deprivation. But	 that only and nothing more. A similar question arose in Khyerbari Tea Co. Ltd. vs The State of Assam	 where the Assam Taxation (on Goods carried by road or on Inland Waterways) Act	 1961 was challenged on the ground that it placed unreasonable restrictions on the freedom of trade guaranteed by Article 301 and infringed the provision of Article 19 (1) (g) of the Constitution. The Act was upheld by a Constitution Bench of this Court by a majority of 4 to 1	 25 Gajendragadkar J.	 who spoke for the majority	 relied on the decision in Saghir Ahmed and said: "It is true that on several occasions	 this Court has generally observed that a presumption of constitutionality arises where a statute is impeached as being unconstitutional	 but as has been held in the case of Saghir Ahmed in regard to the fundamental right under Article 19 (1) (g)	 as soon as the invasion of the right is proved	 it is for the State to prove its case that the impugned legislation falls within clause (6) of Article 19. The position may be different when we are dealing with Article 14	 because under that Article the initial presumption of constitutionality may have a larger sway inasmuch as is may place the burden on the petitioner to show that the impugned law denied equality before the law	 or equal protection of the laws. We may in this connection refer to the observations made by this Court in the case of Hamdard Dawakhana vs Union of India. Another principle which has to be borne in mind in examining the constitutionality of a statute	 it was observed	 is that it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is	 therefore	 in favour of the constitutionality of an enactment. It is significant that all the decisions to which reference is made in support of this statement of the law are decisions under Article 14 of the Constitution. Mr. Setalvad has fairly conceded that in view of the decision of this Court in the case of Saghir Ahmed	 it would not be open to him to contend that even after the invasion of the fundamental right of a citizen is proved under Article 19 (1) (g)	 the onus would not shift to the State. In our opinion	 the said decision is a clear authority for the proposition that once the invasion of the fundamental right under Article 19 (1) is proved	 the State must justify its case under clause 26 (6) which is in the nature of an exception to the main provisions contained in Article 19 (1). The position with regard to the onus would be the same in dealing with the law passed under article 304(b). In fact	 in the case of such a law	 the position is some what stronger in favour of the citizen	 because the very fact that a law is passed under Article 304(b) means clearly that it purports to restrict the freedom of trade. That being so	 we think that as soon as it is shown that the Act invades the right of freedom of trade	 it is necessary to enquire whether the State has proved that the restrictions imposed by way of taxation are reasonable and in the public interest within the meaning of Article 304(b). This enquiry would be of a similar character in regard to clause (6) of Article 19". (pp 1003 4). (emphasis supplied). The observations made by Gajendragadkar J	 in regard to the position arising under Article 304(b) are apposite to cases under article 21. Article 304(b) provides that	 notwithstanding anything in article 301 or article 303	 the Legislature of a State may by law "impose such reasonable restrictions on the freedom of trade	 commerce or intercourse with or within that State as may be required in the public interest". According to the learned Judge	 in the case of a law passed under Article 304(b) the position on the question of burden of proof is somewhat stronger in favour of the citizen	 because the very fact that the law is passed under that Article means clearly that it purports to restrict the freedom of trade. By analogy	 the position is also somewhat stronger in favour of the petitioners in cases arising under Article 21	 because the very fact that	 in defence	 a law is relied upon as prescribing a procedure for depriving a person of his life or personal liberty means clearly that the law purports to deprive him of these rights. Therefore	 as soon as it is shown that the Act invades a right guaranteed by Article 21	 it is necessary to enquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law	 that is to say	 by a procedure which is just	 fair and reasonable. Another decision in the same category of cases is Mohd. Faruk vs State of Madhya Pradesh	 in which the State Government 27 issued a notification cancelling the confirmation of the Municipal bye laws in so far as they related to the permission to the slaughtering of bulls and bullocks. Dealing with the challenge of the petitioner to the notification on the ground that it infringed his fundamental right under Article 19(1)(g) of the Constitution Shah	 J.	 who spoke for the Constitution Bench	 observed: "When the validity of a law placing restriction upon the exercise of fundamental rights in article 19(1) is challenged	 the onus of proving to the satisfaction of the Court that the restriction is reasonable lies upon the State. Imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition	 but when the exercise of a fundamental right is prohibited	 the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the general public interest lies heavily upon the State." (pp. 160 161) When	 in a matter arising under Article 21	 the person aggrieved is found to have been totally deprived of his personal liberty or is being deprived of his right to life	 burden of proving that the procedure established by law for such deprivation is just	 fair and reasonable lies heavily upon the State. This discussion will be incomplete without a close examination of the decisions of this Court in B. Banerjee vs Anita Pan and Pathumma vs State of Kerala	 which have been referred to by Sarkaria	 J.	 in Bachan Singh as evidencing a "contrary trend" according to which	 even in regard to cases under Article 19	 there is an initial presumption in favour of the constitutionality of the statute and the burden of rebutting that presumption lies on the person who asserts that the statute is unconstitutional. In B. Banerjee	 a three Judge Bench of this Court had to consider the question whether sub section (3A) which was introduced in section 13 of the West Bengal Premises Tenancy Act	 1956 was violative of Article 19(1)(f) of the Constitution. By the newly introduced subsection	 the transferee of a property cannot file an eviction suit against his tenant for a period of three years from the date of transfer	 on the grounds mentioned in clauses (f) and (ff) of section 13(1) of the Act. We have already extracted the relevant passage from the judgment of Krishna Iyer	 J.	 who spoke for the Court in 28 that case. The learned Judge said that presumption had to be raised that the legislature understands and appreciates the needs of the people and that some courts had gone to the extent of holding that because of the presumption of constitutionality which every statute carries with it	 the law will not be declared unconstitutional unless the case is so clear as to be free from doubt. The learned Judge added	 citing Seervai	 that "to doubt the constitutionality of a law is to resolve it in favour of its validity". With great respect	 the judgment in B. Banerjee overlooks the binding decisions in Saghir Ahmed	 Khyerbari Tea Co. and Mohd. Faruk which are directly in point. Not only are binding decisions not referred to in the judgment but	 in support of the view propounded by the Court	 Krishna Iyer	 J.	 has cited the decision in Ram Krishna Dalmia which	 as we have stated earlier	 must be limited in its application to cases arising under Article 14 of the Constitution. To apply mechanically the decisions under Article 14 to cases arising under Article 19 is to ignore the significant distinction between the nature of the rights conferred by the two articles and their purport and content. B. Banerjee cannot therefore be regarded as an authority for the proposition contended for by the learned Attorney General. Evidently	 the landlord 's contention that a beneficent provision	 aimed at the protection of tenants harassed by motivated transfers of properties	 was unconstitutional evoked a stern response. That is understandable. But	 in the process of highlighting the need for social welfare legislation in the area of landlord tenant relationship	 the distinction between Article 14 and Article 19 in so far as it bears upon the question of burden of proof failed to receive any attention. The Bar too would seem not to have drawn the attention of the Court to that distinction and to the judgments which we have discussed a little earlier. Pathumma is a seven Judge Bench decision on the question whether the restrictions imposed by the Kerala Agriculturists (Debt Relief) Act	 1970 violate Article 19(1)(f) and Article 14. The appellants therein challenged section 20 of the Act particularly	 which entitles agricultural debtors to recover properties sold in execution of decrees passed against them	 Fazal Ali	 J.	 who spoke four out of the seven learned Judges	 refers at the outset of the judgment to the "approach which a Court has to make and the principles by which it has to be guided in such matters". After stating that the Courts must interpret the Constitution: 29 "against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of the society	 the increasing needs of the nation	 the burning problems of the day and the complex issues facing the people which the legislature in its wisdom	 through beneficial legislation	 seeks to solve". the learned Judge observes that since that the legislature is in the best position to understand and appreciate the needs of the people	 the Courts have recognised that there is "always" a presumption in favour of constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same. In support of this proposition	 the learned Judge relied upon the decision of this Court in Mohd. Hanif Quareshi vs The State of Bihar	 in which Das	 C.J.	 restated the two propositions which were enunciated in Ram Krishna Dalmia. We find it difficult to read the observations made by Fazal Ali	 J. on behalf of the four learned Judges as an authority on the question of burden of proof in cases arising under Article 19 of the Constitution. It is true that section 20 of the Kerala Act of 1970 was challenged on the ground that it violates Article 19 (1) (f) but it must be emphasised that it was also challenged on the ground that sub sections (3) and (6) thereof were violative of Article 14. The observations made by the learned Judge and the statement of law contained in his judgment would certainly apply to cases arising under Article 14	 for reasons which we have already discussed. It is reasonable to suppose that if	 by the use of the word "always"	 it was intended to lay down rules as to burden of proof in regard to cases arising under Article 19 also	 some reference would have been made by the learned Judge to the Constitution Bench decisions in Saghir Ahmed	 Khyerbari Tea Co. and Mohd. Faruk. The fact that these decisions have not been referred to supports the inference that the observations made by the learned Judge at the outset of the judgment are of a general nature	 not intended to apply to cases arising under Article 19 of the Constitution. The Court	 as we have said	 was also dealing with a challenge under Article 14 and the weighty observations made by the learned Judge would apply to the arguments arising under that provision. In support of the principles set out by him	 Fazal Ali	 J.	 relied upon the decision of a Constitution Bench of this Court in 30 Mohd	 Hanif Quareshi. In that case	 laws passed by the States of Bihar	 U.P. and Madhya Pradesh	 banning the slaughter of certain animals were challenged by the petitioners on the ground that those laws violated the fundamental rights guaranteed to them by Articles 14	 19 (1) and 25 of the Constitution. The Court	 speaking through Das	 C.J.	 first disposed of the preliminary question raised by Pandit Thakurdas Bhargava that since the impugned Acts were passed in discharge of the obligation laid on the State by the Directive Principle contained in Article 48	 no grievance could be made that those laws violated the fundamental rights conferred on the petitioners by Chapter III of the Constitution. The Court rejected the preliminary objection and turned to the second question as to whether the laws passed by the Legislatures of the three States violated the provisions of Article 25(1) of the Constitution. After rejecting that contention also	 the Court took up for consideration the argument of the petitioners as regards "the denial of the equal protection of the law" to them. The petitioners ' argument was that the impugned Acts prejudicially affected only the Muslim Kasais who kill cattle but not others who kill goats and sheep and therefore those Acts were violative of Article 14 of the Constitution. It is while dealing with this contention that the learned Chief Justice made observations which have been extracted by Fazal Ali	 J. The observations made by the learned Chief Justice regarding the presumption of constitutionality and the burden being upon the person who attacks it are specifically made in the context of Article 14 as in Ram Krishna Dalima. We are therefore of the opinion that the principles stated by Fazal Ali	 J. on the question of burden of proof in Pathumma may apply to cases arising under Article 14 but not to those	 arising under Articles 19 and 21 of the Constitution. In fact	 in Laxmi Khandsari vs State of U.P.	 Fazal Ali	 J.	 sitting with Kaushal	 J.	 said that "It is no doubt well established" that when a citizen complains of the violation of a fundamental right conferred by Article 19	 the onus is on the State to prove "by acceptable evidence	 inevitable consequences or sufficient materials" that the restriction is reasonable. Bhagwati	 J.	 in his dissenting opinion in Bachan Singh has expressed the view that the observations made by Krishna Iyer	 J.	 in B. Banerjee and by Fazal Ali	 J.	 in Pathumma cannot apply to cases arising under Articles 19 and 21 of the Constitution. We respectfully agree with that view. 31 The seven Judge Bench decision in Madhu Limaye	 on which Shri Jethmalani relies	 involved a challenge to section 144 and Chapter VIII of the Code of Criminal Procedure on the ground that those provisions violated clauses (a)	 (b)	 (c) and (d) of Article 19 of the Constitution. We have already extracted the passage from the judgment delivered in that case by Hidayatullah	 C.J.	 on which the learned counsel relies. That passage shows that the Court was considering the argument advanced by the petitioners that the preferred position doctrine	 which was said to be in vogue in America	 was applicable in India. The argument was that	 according to that doctrine	 any law restricting the freedom of speech and expression	 religion or assembly must be taken on its face to be invalid till it was proved to be valid. Holding that the doctrine did not have the support of even the American Supreme Court any longer and that the unreasonableness of the law had to be established	 the learned Chief Justice observed: "We do not start with the presumption that being a pre constitution law	 the burden is upon the State to establish its validity		. Therefore	 according to the learned Chief Justice	 "the burden must be placed on those who contend that the particular law has become void after coming into force of the Constitution by reason of Article 13(1) read with any of the guaranteed freedoms". (emphasis supplied in both the quotations). These observations may at first blush seem to support Shri Jethmalani 's contention but	 as we have stated earlier	 it is wrong to extend the observations made in one context to an entirely different context. The question which was considered in Madhu Limaye was whether certain provisions of the Code of Criminal Procedure	 which is a pre Constitution law	 are violative of the Constitution. The Contention was that the Code of Criminal Procedure is a pre constitution Law and therefore the State must justify the constitutionality of that law. That argument was rejected with the observation that "we cannot start with the presumption that a pre Constitution law is unconstitutional therefore the burden lies upon the State to establish its validity". The specific observation on the question of burden to the effect that the burden lies on those who challenge the constitutionality of a law	 is also made expressly in regard to the provisions of Article 13 (1) of the Constitution which provides that the laws which were in force before the commencement of the Constitution shall	 in so far as they are inconsistent with the provisions of Part III	 be void to the extent of such inconsistency. Shri Jethmalani is right that Madhu Limaye was not noticed in 32 Bachan Singh	 but we are unable to accept his contention that the decision is an authority for the proposition that the same rule of burden of proof must apply to all constitutional challenges	 whether under Article 14	 19 or 21 of the Constitution. We must hark back to Bachan Singh with which we began the discussion of the question as regards the burden of proof. Sarkaria	 J. observed in the majority judgement that "with regard to the onus	 no hard and fast rule of universal application in all situations could be deduced from the decided cases". We have made a modest attempt to show that cases arising under Article 14 are covered by a rule as to burden of proof which is different from the rule which applies to cases arising under Articles 19 and 21 of the Constitution. In that sense	 it is true to say that there is no hard and fast rule of universal application which can be applied a like to all situations. We have also dealt with the two decisions in B. Banerjee and Pathumma which the Court had evidently in mind when it spoke of a 'contrary trend" which was discernible in the later decisions of the Court. After referring to the Indian and the American cases bearing on the subject	 the majority recorded its conclusion by saying that "the State has discharged its burden" to establish that death penalty serves as a deterrent	 by producing the necessary data. We are referring to this aspect of the decision in Bachan Singh in order to show that the judgment of the majority proceeded on the basis that the burden of proving the constitutionality of section 302 was on the State and the State had successfully discharged that burden. Thus	 Bachan Singh is an authority for proposition that in cases arising under Article 21 of the Constitution	 if it appears that a person is being deprived of his life or has been deprived of his personal liberty	 the burden rests on the State to establish the constitutional validity of the impugned law. That disposes of the question of burden of proof. In the light of this discussion	 we must proceed to examine the question whether the State has discharged the burden of proving that the provisions of section 354(5) of the Code of Criminal Procedure are in conformity with the mandate of Article 21. Consistently with the conclusion which we have recorded on the question of burden of proof	 we must hold that the burden does not lie on the petitioners to prove that the procedure prescribed by the aforesaid provision for taking life is unjust	 unfair or unreasonable. The impugned statue	 on the face of it	 provides for a procedure for extinguishing 33 life. Therefore	 not even the initial obligation to show the fact of deprivation of life or liberty rests on the petitioners. The State must establish that the procedure prescribed by section 354(5) of the Code for executing the death sentence is just	 fair and reasonable. That burden includes the obligation to prove that the said procedure is not harsh	 cruel or degrading. Has the State discharged this heavy onus ? We have already set out the grounds on which the petitioners challenge the constitutionality of section 354(5) of the Code of Criminal Procedure which provides that "When any person is sentenced to death	 the sentence shall direct that he be hanged by the neck still he is dead". Stated briefly	 the contention of the petitioners is that section 354(5) of the Code is bad because: 1. It is impermissible to take human life even under the decree of a Court since it is inhuman to take life under any circumstances; 2. By reason of the provision contained in Article 21	 it is impermissible to cause pain or suffering of any kind whatsoever in the execution of any sentence	 much more while executing a death sentence; 3. The method of hanging prescribed by section 354 (5) for executing the death sentence is barbarous	 inhuman and degrading; and 4. It is the constitutional obligation of the State to provide for humane and dignified method for executing the death sentence	 which does not involve torture of any kind. If the method prescribed by section 354(5) does not meet this requirement	 no death sentence can be executed since	 no other method for executing that sentence is prescribed by or is permissible under the law. These arguments are answered by the learned Attorney General by contending that a sentence lawfully imposed by a Court can and has to be executed	 though by causing the least pain and suffering and by avoiding torture of degradation of any kind; that the method prescribed by section 354(5) for executing the death sentence 34 is a humane and dignified method which involves the least amount of pain and cruelty; that no other method of executing the death sentence is quicker or less painful; that Article 21 does not postulate that no pain or suffering whatsoever shall be caused in the execution of a sentence lawfully imposed by a Court	 including the sentence of death	 and that	 since the method of hanging prescribed by section 354(5) does not suffer from any constitutional infirmity	 the question of the Court substituting that method by any other method does not arise for consideration. While supporting these arguments of the Attorney General	 Shri Ram Jethmalani added that unless	 on the face of it	 the method prescribed by a law for executing a sentence is revolting to the conscience	 the Courts must surrender their discretion to the legislative judgment when the challenge to the constitutionality of the law is based on considerations which the Court is not equipped to evaluate by manageable judicial standards. According to the learned counsel	 the Court 's evaluation of the method of hanging prescribed by law shall have to be inevitably subjective	 almost to the point of being legislative in character	 which must be avoided at all costs. The legislature has recognised means at its command for self education like the Law Commissions	 the expression of public opinion	 the result of scientific investigations	 the sociological advance and	 last but not the least	 the unfettered freedom available to the legislators to discuss matters of moment on the floor of the House and to keep them under constant scrutiny. "Hands off the Hanging" is the sum and substance of Shri Jethmalani 's argument. New dimensions were added to these arguments by the other learned counsel. For example	 Shri Salman Khurshid advocated that instead of putting out life for ever by executing the death sentence	 persons sentenced to death should be deprived of their eye sight by blinding them so that	 if and when they are reformed	 they could be given back their sight by transplantation or by whatever method medicine may discover for restoring the eye sight. In the meanwhile	 says counsel	 justice shall have been done. First	 as to Shri Jethmalani 's argument that we should leave to the legislative wisdom the question as to how best the death sentence should be executed and that we should not project our subjective views into the decision of that question. We find it impossible to accept this argument. Matters of policy are certainly 35 for the legislature to consider and therefore	 by what mode or method the death sentence should be executed	 is for the legislature to decide. As stated in Grega vs Georgia	 in a democratic society legislatures	 not Courts	 are constituted to respond to the moral values of the people. But the function of the legislature ends with providing what it considers to be the best method of executing the death sentence. Where the function of the legislature ends	 the function of the judiciary begins. It is for the Courts to decide upon the constitutionality of the method prescribed by the legislature for implementing or executing a sentence. Whether that method conforms to the dictates of the Constitution is a matter not only subject to judicial review but it constitutes a legitimate part of the judicial function. As Judges	 we cannot abdicate the obligation imposed upon us by the Constitution and throw our hands in despair with the consolation that after all	 the chosen representatives of the people have willed that hanging is the best method of executing the death sentence. We respect the judgment of the people 's representatives to the extent	 but only to the extent	 that as a matter of policy they considered that the method of hanging provided by section 354(5) of the Code is the least objectionable method for executing the death sentence. But	 what the policy judgment of the legislature leaves outstanding for the Court 's consideration is the question whether the particular method prescribed by law for executing the death sentence is in consonance with the Constitution. This latter question is manifestly for the Courts to decide. The decision of that question inevitably involves a value judgment based upon a comparative evaluation of alternate methods for executing the death sentence but	 more than any such comparative evaluation	 our plain and primary duty is to examine whether	 even if the method selected by the legislature is the least objectionable	 it is still open to the objection that in involves undue torture	 degradation and cruelty as	 for example	 by causing more pain than is strictly necessary or by bringing about a lingering death or because the particular method is liable	 frequently	 to fail in its mechanism. Our task will end with pointing out why	 if at all	 the method at present provided by law is contrary to the mandate of the Constitution	 even if it be less objectionable than any other commonly accepted method of executing the death sentence. We will not legislate by directing the since	 if at all	 the provision contained in section 354(5) is unconstitutional	 the death sentence imposed upon the petitioners shall be executed 36 by the method of electrocution or gas chamber or lethal injection or shooting or guillotine and the like. Nor can we direct	 as canvassed by Shri Khurshid	 that the petitioners be temporarily blinded. That would be legislating. To pronounce upon the constitutionality of a law is not legislating	 even if such pronouncement involves the consideration of the evolving standards of the society. 'Cruelty ' and 'torture ' are not static concepts. That is why	 the chopping off of limbs which was not considered cruel centuries ago or	 is not considered cruel in some other parts of the world to day	 is impossible to conceive as a punishment by applying the contemporary standards of the Indian society. What might not have been regarded as degrading or inhuman in days by gone may be revolting to the new sensitivities which emerge as civilization advances. The impact and influence of the awareness of such sensitivities on the decision of the law 's validity is an inseparable constituent of the judicial function. This Court is not a third Chamber of the legislature. It has no such extra territorial ambitions and it does not aspire to do the job of 'out riders '	 to use an expression Lord Devlin. It is simply the highest Court of law and justice in a country governed by a written Constitution	 which	 it is its primary and exclusive function to interpret. The care which we must take is that while interpreting the laws and the Constitution	 we ought not to be swayed by passing passions or by populist sentiments. We must do our duty by the Constitution	 unaffected by extraneous considerations and guided solely by the obligation to be fair and just	 almost to a fault. The State seeks to discharge its burden by relying upon the Reports of Commissions which are based on results of scientific investigation into the mechanics of the hanging process	 the opinions of text book writers	 the predilection of sociologists	 the proclivities of reformers and	 of course	 juristic exposition of the complex issue "to hang or not to hang". To some of these we must now turn. In the year 1949 the Government of United Kingdom appointed a Commission to report upon the various facets of the capital punishment. The Commission submitted its report in September 1953 after extensive research into the questions referred to it and after interviewing experts	 visiting jails and examining the merits and demerits of hanging as a method for executing the death sentence. Chapter 13 of the Royal Commission 's Report deals with 37 the "methods of execution". In paragraph 700 of that Chapter the Commission records that it heard evidence on the existing method of hanging from various witnesses	 including Prison Commissioners and Prison officials	 one Mr. A. Pierepoint	 "the most experienced executioner in this country"	 and under sheriffs responsible for execution in London and Lancashire. The Commission inspected execution chambers in England and Scotland and was given demonstrations of the procedure at an execution. They also received evidence about executions in the United States by means of electrocution and lethal gas. During their visit to the United States	 they took the opportunity of inspecting the electric chair in two prisons. Lastly	 they questioned medical witnesses about possible new methods of execution. In paragraph 703 of the Report the Commission notes that public opinion was disturbed by evidence that the task of hanging was sometimes bungled. In 1885 a condemned murderer had to be reprieved after three unsuccessful attempts had been made to hang him. There were also other untoward occurrences: Occasionally	 a man might be given too short a drop and die slowly of strangulation	 or too long a drop and be decapitated. A Committee was therefore appointed in U.K. in 1886 to report on the best way of ensuring "that all executions may be carried out in a becoming manner without risk of failure or miscarriage in any respect". This Committee made recommendations about the length of drop	 improvements in the apparatus and preliminary tests and precautions which were designed to ensure speedy and painless death by dislocation of the vertebrae without decapitation. The improved system of hanging now in vogue came into being as a result of the recommendations of this Committee. The Home Office informed the Commission that "There is no record during the present century of any failure or mishap in connection with an execution	 and	 as now carried out	 execution by hanging can be regarded as speedy and certain". In paragraph 704 of the Report	 the Commission says that it was "on the score of humanity" that execution by hanging was defended by witness after witness. The Prison Officers held the system of hanging to be as humane as circumstances permit	 while the Prison Medical Officers said "We cannot conceive any other method which could be more humane	 efficient of expeditious than judicial hanging. The Prison Chaplains called it "simple	 humane 38 and expeditious". The British Medical Association told the Commission that "hanging is probably as speedy and certain as any other method could be adopted. The Royal Medico Psychological Association	 after stating that the method of execution ought to be "certain	 humane	 simple	 instantaneous and expeditious"	 said: "On the information available to the Association	 the method of hanging fulfils these criteria more satisfactorily than any other so far proposed or in practice". A knowledgeable witness told the Commission that the method of hanging was "certain	 painless	 simple	 humane and expeditious". In paragraph 705 of the Report	 the Commission refers to the interesting development that the method of execution whose special merit was originally thought to be that it was peculiarly degrading and therefore deterrent	 was defended before it on the ground that it was uniquely humane. The reason for this surprising inversion is that as a result of the recommendations made by the Committee which was appointed in 1886	 "a method originally barbarous. . has been successfully humanised". In Paragraph 708	 the Commission proceeds to examine the question whether there is any seemly and practicable method of execution which is as painless as hanging or even more speedy	 or which	 even though it may have no advantage over hanging in those respects	 is free from the degrading associations of that method. If capital punishment were being introduced for the first time	 the Commission considered it unlikely that hanging would be chosen as a method for executing the death sentence. The Commission	 however	 found that no useful propose would be served by making experiments unless the necessity was urgent or the utility evident. And this applied with special force to a subject which was highly charged emotionally and was exceptionally controversial. In paragraph 709	 the Commission refers to five methods of execution of the death sentence which were then in vogue in the different parts of the world. Electrocution was in vogue in 23 States of U.S.A.; Guillotine in France and Belgium; Hangiug in England	 Scotland	 the Commonwealth countries and 10 States of U.S.A.; and lethal gas in 8 States of U.S.A. Shooting was in vogue in the State of Utah in America which allowed a choice between hanging and shooting. Besides	 shooting was used in almost every 39 country as a method of execution of persons sentenced to death for offences against the Military Code. Rejecting Guillotine and shooting as methods for executing the death sentence for the reason that the former produces mutilation and the latter is inefficient	 uncertain and unacceptable as a standard method of civil executions	 the Commission examined the mechanics of hanging in paragraphs 711 to 716 of its Report. Paragraph 714	 which is relevant for our purpose	 shows that a valuable memorandum was submitted to the Commission by the Coroner for the Northern District of London	 at whose instance many post mortem examinations following upon hanging were made by the late Sir Bernard Spilsbury	 a distinguished man of medicine who had figured as a witness in many important trials	 and other highly qualified pathologists. The Coroner	 Mr Bentley Purchase	 had access to the records of such post mortem examinations. The memorandum showed that the effective cause of death in 58 executions at two prisons was "fracture dislocation of cervical vertebrae with laceration or crushing of the cord" and that any such dislocation causes immediate unconsciousness	 there being no chance of later recovery of consciousness since breathing is no longer possible. The beating of the heart thereafter for any time upto 20 minutes is a purely automatic function. In the words of the Corner: "I have no doubt of the efficacy and immediate and painless finality of the present method of judicial execution". After examining the mechanics of the methods of electrocution and lethal gas in paragraphs 717 to 722	 the Commission considers the question as to whether electrocution or lethal gas was preferable to hanging on considerations of "humanity	 certainty and decency"	 The Commission observes in paragraph 724 that the requirements of humanity are essentially two: (1) that the preliminaries to the acts of execution should be as quick and as simple as possible	 and free from anything that unnecessarily sharpens the poignancy of the prisoner 's apprehension	 and (2) that the act of execution should produce immediate unconsciousness passing quickly in into death. Paragraph 725 contains a comparative table showing the length of time taken by the preliminaries in electrocution	 lethal gas and hanging. On the basis of that comparative analysis	 the Commission records its conclusion in paragraph 726 that	 there was 'no room for doubt ' that in the matter of time taken by the preliminaries	 hanging was superior to 40 either electrocution or lethal gas. In all the three methods the prisoner had to be restrained in some way or the other prior to the execution but	 in electrocution the execution is preceded by shaving and handcuffing while	 in lethal gas the prisoner has to be stripped of his clothes	 except a pair of shorts	 in order that pockets of gas may not persist in the clothes. In addition	 a stethoscope head has to be strapped to the chest under the lethal gas method. On the question of "certainty"	 the Commission observes in paragraph 729 of its Report that the equipment required for hanging is simpler than that which is required for electrocution or execution by lethal gas. The lethal chamber is a complicated piece of mechanism while the electric chair depends for its efficacy upon the supply of electricity which is usually taken from commercial sources. In fact	 in the United States	 executions by electrocutions were occasionally delayed by failure of the power. The Commission recorded its conclusion by saying that neither electrocution nor lethal chamber had any advantage over hanging	 in so far as the requirement of "certainty" is concerned. In paragraph 732	 the Commission deals with the third aspect	 namely	 "Decency" in execution of the death sentence. It says that while considering this aspect it had kept two things in mind: Firstly	 the obligation which obviously rests on every civilised State to conduct its judicial executions with decorum	 and	 secondly	 that judicial execution should be performed without brutality	 that it should avoid gross physical violence and should not mutilate or distort the body. The Commission records its conclusion by saying that in so far as the requirement of decency is concerned	 the other two methods have an advantage over hanging though	 all the three methods were now used with all the decency possible in the circumstances. The Commission records its final conclusion in paragraph 734 of the Report by saying that after weighing all the factors carefully and bearing in mind that the onus of proof was on the advocates of change	 it could not recommend that either electrocution or gas chamber should replace hanging as a method of judicial execution: In the matter of humanity and certainty	 the advantage lay with the system of hanging; in regard to. one aspect of the requirement of decency the other two methods were preferable. But	 according to the Commission	 that advantage could not be regarded as enough to turn the scale. 41 The counter affidavit filed on behalf of the Government of India by Shri P.S. Ananthanarayanan	 Under Secretary	 Ministry of Home Affairs	 shows that the Director General of Health Services	 who is the highest adviser to the Government of India in these and allied matters	 was consulted on the question whether the system of hanging which is prevalent in India for executing the death sentence should be changed. The D.G.H.S. advised as follows: "Subject: Mode of ending the life of a convict sentenced to death. Continuation this Directorate u.o. No. 31 204/55 MI	 dated the 10th April	 1956	 on the above subject. This Directorate has consulted the Administrative Medical Officers	 Chemical examiners	 other criminologists and experts	 etc.	 On the subject and the views expressed by them fall into the following groups: (1) Those who consider the present method of hanging being the best . Number 15 (2) Those favouring Electrocution . Number 17 (3) Those favouring Medication	 etc. . Number 3 Even though electrocution has been advocated as a desirable method by a considerable number of those consulted	 it is not a method without its drawbacks in that death is stated in this case not to be always instantaneous or even painless and that this method involves the setting up of a considerable mechanical outfit. From the replies received from various sources	 we also find that those who can speak with the authority of experience and knowledge have spoken with conviction regarding judicial hanging	 properly carried out	 as being the quickest and least painful method. This is also the view of the Serologist and Chemical Examiner to the Government of India	 Calcutta and the majority view of the Central Medico Legal Advisory Committee. We are inclined to agree with this view and do not recommend any change in the present method of execution by judicial hanging in the present state of scientific knowledge. " 42 Paragraph 16 of the counter affidavit says that the D.G.H.S. held to the same view as recently as in February 1982. The 35th Report of the Law Commission of India on Capital Punishment	 dated September 30	 1967 deals with "Execution of Sentences" in Chapter XV. The Commission observes in paragraph 1097 of the Report that though hanging continued to be the most prevalent method for executing the death sentence	 the course of events showed that it was being slowly abandoned. Thus	 while in 1930	17 States in U.S.A. used to employ that method	 only 6 retained it in 1967. Again	 while it was in force in Yugoslavia before 1950	 it was replaced by the firing squad in that year. In paragraph 1098	 the Law Commission deals briefly with the Report of the Royal Commission of England while in paragraph 1099	 it discusses the Report of the Canadian Committee on the same subject. It would appear from what the Law Commission has stated in this paragraph that the Canadian Committee considered four different methods of execution	 namely	 hanging	 electrocution	 gas chamber and lethal injection. The last mentioned method was believed to ensure instantaneous and painless death	 but it could only be accomplished by an intravenous injection requiring skill and the Canadian Committee considered that it would not be reasonable to expect a medical doctor to perform a task so repugnant to the traditions of the medical profession. Moreover	 an intravenous could not be administered unless the condemned person was entirely acquiescent. The Canadian Committee appears to have noted that hangings in Canada were not conducted with the same degree of precision as in U.K.	 as a result of which it was difficult to know how the death was caused and whether the loss of consciousness had supervened instantaneously. Holding on the basis of the evidence before it that hanging was regarded generally as an obsolete	 if not a barbarous method	 the Committee recommended that hanging should be replaced by electrocution. In paragraphs 1101 to 1148 (pages 339 to 345)	 the Law Commission of India extracts the views which were expressed before it as to the ideal method for executing the death sentence. Noting in paragraph 1149 that there was a considerable body of opinion which would like hanging to be replaced by something "more humane and more painless"	 the Commission says in paragraph 1150 that to a certain extent the matter was one of medical opinion. The 43 general view expressed before the Commission was that a method which is certain	 humane quick and decent should be adopted for executing the death sentence. The society owed it to itself that the agony at the exact point of execution should be kept to the minimum. But the Commission felt that it was difficult to express any positive opinion as to which of the three methods hanging	 electrocution and gas chamber satisfied these tests most	 particularly when electrocution and gas chamber were untried in India. In paragraph 1151	 the Commission records its conclusion by saying: "We do not therefore recommend a change in the law on this point. " In other words	 the recommendation of the Commission was that death sentence should be executed by the method of hanging prescribed in section 354(5) of the Criminal Procedure Code	 since there were no circumstances justifying its substitution by any other method and since	 no other method was shown to be more satisfactory. In February 1978	 Dr. Hira Singh	 Prison Adviser to the National Institute of Social Defence	 submitted his opinion to the Ministry of Home Affairs	 Government of India	 as follows: "In ancient days the execution of death sentence was often attended by cruel forms of torture and suffering inflicted on the offender. With the passage of time	 however	 the methods of execution have undergone various changes. The old practices such as beheading	 drawing	 stoning	 impaling	 precipitation from a height	 etc.	 have been gradually replaced in all civilised countries by new methods of hanging	 electrocution	 gas chamber and shooting. These changes have occurred mainly on the premise that death penalty means simply the deprivation of life and as such should be made as quicker and less painful as possible. The old methods were considered inhuman. According to the study on Capital Punishment published by the United Nations in 1962	 hanging remains the most frequent method of execution in various coun 44 tries including the United Kingdom and generally throughout the Commonwealth. In the United States it is no doubt losing ground in favour of electrocution and lethal gas. The modern method of hanging differs from its traditional form as it involves an abrupt and immediate severance of the cervical vertebrae. The whole process is carried out with care and skill so as to avoid any bungling and untoward incident. The State Jail Manuals contain elaborate instructions on the arrangement for execution	 inspection of gallows	 testing of equipment and the manner of execution. " The Prison Adviser thereafter sets out guidelines contained in the Model Prison Manual which have to be followed while executing the death sentence by the method of hanging. In paragraph 3 of his opinion he says that the chances of a mishap in the electrocution process cannot be eliminated altogether and that in the United States	 there have been occasions when the current failed to reach the chair when the switch was engaged. After describing the procedure which is adopted in the methods of electrocution	 gas chamber and shooting	 he says that there are cases on record where executions by shooting were bungled by nervous firing squads. Dr. Hira Singh concludes: "The question of introducing electric chair in place of hanging as a mode of execution may be examined from the administrative as well as humanitarian view points. It is often argued that death by hanging takes lesser time to execute than the other modes	 though it may not be invariably true. In any case electric chair has in no way proved to be more efficient in reducing pain or suffering inflicted on the offender. In hanging the body is liable to be disfigured but in electrocution also the leg is some times slightly burnt. Above all electrocution involves much costlier equipment and operational preciseness than hanging. In view of such considerations there seems to be no particular advantage in switching over to the electric chair in the execution of death sentence even if such a system may outwardly look to be more sophisticated. " The opinion of the Prison Adviser is at Annexure V to the counter affidavit of Shri P.S. Ananthanarayanan. 45 We had allowed one Dr. Chandrakant of the All India Institute of Medical Sciences	 New Delhi	 to intervene in these proceedings. We may	 with some advantage	 refer to his written submissions. Dr. Chandrakant did his M.B.B.S. in 1970 and was in the Army Medical Corps for a period of five years. He holds a Diploma in Oto rhino Laryngology and the degree of M.D. in Forensic Medicine and Toxicology. It appears that he has also done a three year degree course of LL.B. from the Allahabad University. He is presently working as a Lecturer in the Department of Forensic Medicine of the Institute	 in which capacity he is required to conduct Medico legal autopsies. He claims that he has conducted approximately 1100 medico legal autopsies uptil now. According to him	 hanging is the best method for executing the death sentence since by that method	 death ensues instantaneously due to a combination of shock	 asphyxia and crushing of Spinal Medulla. He says that there are misconceived notions about judicial hanging due to improvised and faulty mechanism of the process involved in suicidal hangings and due to lack of knowledge of the anatomical structure of the neck and human body	 Dr. Chandrakant describes the human anatomy and says that in hanging	 whenever there is injury to Medulla	 to Pons or Medulla oblongata	 all the three vital centres called as "Tripod of life" are affected which causes instantaneous death. Dr. Chandrakant has given a brief description of about 15 different methods which have been followed at one time or the other for executing the death sentence. In a book called "Hanging through the ages (History of Capital Punishment)" by George R. Scott (Torchstream Books	 London)	 the entire history of the technique of hanging has been traced. The author says at page 211 that the introduction of an improved	 technique of hanging has served to expedite the process of hanging	 giving less pain to the prisoner and that	 "the long drop" and other improvements have achieved a great deal though	 despite everything that has been done	 accidents are inevitable. In "Kenny 's Outlines of Criminal Law	 (19th Ed. 1966) edited by J.W. Cecil Turner, it is stated at page 618, foot note 5 that: Hanging does not operate now through suffocation	 but by a `long drop '	 invented by Prof. Haughton of Dublin	 which dislocates the vertebrae and is calculated to produce an instantaneous and painless death." 46 In "New Horizons in Criminology" by Harry Elmer Barnes and Negley K. Teeters (3rd Ed. 1966)	 it is stated: "Society has resorted to many different methods in executing criminal and other allegedly dangerous persons. Drowning	 stoning to death	 burning at the state and beheading have all been used in the past. Of all the modern methods of administering the death penalty	 hanging has been the most widely used. We read of hangings in the earliest historic literature and throughout the world even today it is still the most widely used. 		 In a publication called `Capital Punishment ' under the auspices of the United Nations	 Department of Economic and Social Affairs	 New York	 1962	 it is stated in paragraph 57 of the chapter called `The Execution ' that in earlier times	 a great variety of methods of execution was known to the law	 the carrying out of a sentence of death being sometimes attended by `cruel forms of torture intended in certain cases to aggravate the suffering. The publication says: .`On grounds of humanity and of the respect due to the human person the modern law has in general dropped these practices. The death penalty means nowadays	 simply the deprivation of life. The differences which today exist regarding the methods of carrying out the death sentence are attributable to the efforts made to render death quicker and less painful". The same paragraph mentions that hanging has generally been abandoned in the United States. According to the issue of `Time ' magazine dated January 24	 1983	 only four States of America still prescribe hanging as a method for executing the death sentence. Paragraph 59 of U.N. publication says that "Hanging remains the most frequent method in use". It lists over 25 countries of the world in which the method of hanging is used for executing the death sentence. In so far as the judicial exposition of this subject is concerned	 attention may be drawn to the latest decision of this Court in Bachan Singh in which the majority said that under the successive Criminal Procedure Codes which have been in force in India for about 100 years	 the sentence of death is to be carried out by the method of hanging. The founding fathers of the Constitution	 some of whom were distinguished jurists (in the proper sense of that term)	 cannot be assumed to be ignorant of the provision contained in section 354(5) of the Code. And	 despite the fact that the death sentence has to be carried out by the mode prescribed in that 47 section	 they recognised the existence and validity of that sentence. The majority accepted the proposition that by reason of the provision contained in Article 21	 no person can be deprived of his life or personal liberty except in accordance with fair	 just and reasonable procedure established by law. Applying that postulate	 it observed that the framers of the Constitution did not consider that either the death sentence or the traditional mode of its execution prescribed by section 354(5) of the Code was a degrading punishment which would defile the dignity of the individual within the contemplation of the Constitution. These observations are significant	 with the caveat that the question as regards the validity of section 354(5) of the Code was not directly in issue in Bachan Singh. This then is the data on which reliance is or can be placed by the Union of India for discharging the burden which rests upon it for proving that the method of hanging prescribed by section 354(5) of the Code does not violate the guarantee contained in Article 21 of the Constitution. Though it must be conceded that the various learned counsel for the petitioners led by Shri R.K. Garg and Dr. N.M. Ghatate have argued their respective cases with great fervour	 industry and tenacity	 the writ petitions furnish no data or reasons whatsoever as to why the method of the hanging is violative of Article 21. Mostly	 the prayer clauses of petitions simply contain a request that the system of hanging should be declared to be violative of Articles 14	 19 and 21 of the Constitution. Articles 14 and 19 were hardly even mentioned in the arguments on the main point and	 rightly so. The arguments advanced in regard to the violation of Article 21 went far beyond the scope of the averments in the writ petitions but that is not unprecedented in this Court. Moreover	 in a matter involving the question of life and death	 technicalities cannot be allowed to defeat justice. We could have asked the petitioners to amend their petitions but rather than doing so	 we decided to hear a full dressed argument on the validity of section 354(5) of the Code	 regardless of the paucity of pleadings	 especially since the writ petitions do not involve any challenge under Article 14 of the Constitution. We have heard the petitioners ' counsel at length on every conceivable aspect of the question involved in these petitions. We have proceeded to this judgment	 on a careful consideration of the diverse submissions made before us. 48 Dr. Ghatate	 who began the arguments on behalf of the petitioners	 contended that the method of hanging involves pain	 degradation and suffering wherefor that method violates Article 21 and cannot be used for executing the death sentence. In support of this argument	 he drew our attention to certain passages in the dissenting judgment of Bhagwati	 J.	 in Bachan Singh. At page 285 of the Report	 the learned Judge has extracted a passage from a decision of the California Supreme Court in which it is said that	 "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 the absence of citation	 we are unable to trace the decision or to see the context in which the California Supreme Court made the particular observation. We do not know who these "Penologists and medical experts" are and where they have expressed agreed opinions attributed to them. It is not even clear whether the California Court was dealing with the validity of death penalty or with the methods of executing that penalty and	 if the latter	 whether it has condemned every method of the execution and not the method of hanging only. The purport of the passage seems to indicate that the question under inquiry was that death sentence is a `cruel unusual punishment '. As we have shown	 the expert evidence before the Royal Commission of U.K. was quite to the contrary	 especially in regard to the improved technique of hanging which came into operation after the recommendations of the Committee appointed in 1886 were implemented. At page 287 of the Report Bhagwati	 J.	 has made certain observations which also Dr. Ghatate has pressed into service. We have already extracted those observations while dealing with the preliminary objection of the learned Solicitor General. The sum and substance of the particular passage is that "hanging is undoubtedly accompanied by intense physical torture and pain". In support of this conclusion	 the learned Judge quotes Warden Duffy of San Quentin	 a high security prison in U.S.A		 who had described with particularity the procedure which obtains at the hangings of prisoners. After extracting a statement of Warden Duffy at page 288	 the learned Judge says: "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 49 have been made. " Our difficulty again is the absence of citation of the descriptive hassage which appears at page 288 of the Report. We do not know where	 and in which year	 Warden Duffy gave the particular description of the hanging process. The process described by him is apparently similar to the one which is now regarded as outmoded and is no longer in use. Besides	 Warden Duffy was a stern opponent of the capital punishment. In a series of articles under the caption "San Quentin is my Home" which appeared in the Saturday Evening Post	 March 25 May 13	 1950	 he denounced the capital sentence by pointing out	 inter alia	 how every known method of executing that sentence is fraught with pain and suffering. We will have occasion to call attention to what he has to say about the Gas Chamber too. But evidence before us shows that the mechanics of the method of hanging has undergone significant improvement over the years and if the expression is not inapt in the context	 hanging has been almost perfected into a science. The chances of a mishap are minimal now though	 the chances of an accident can never be eliminated totally	 If that could be done	 the word "accident" will not appear in the dictionary of wise men. In regard to the improvements effected in the method of hanging	 we will only draw attention to the findings of the Royal Commission and the opinion expressed by other experts to which we have already referred. Finally	 Dr. Ghatate relies upon an account given in 1927 by a Surgeon who witnessed a double execution	 which has been extracted in the judgment of Bhagwati	 J.	 at page 288 of the Report. It appears from the Surgeon 's account that `one of the supposed corpses ' gave a gasp which the Surgeon was	 very naturally	 horrified to hear. Two bodies not completely dead were then raised to the scaffold again. In his account the Surgeon has stated that though dislocation of the neck is the ideal aimed at in hanging	 that had proved rather an exception in his own post mortem findings which showed that in the majority of instances	 the cause of death was strangulation and asphyxia. Relying on this account Bhagwati	 J.	 concludes: "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." With great respect	 our difficulty is the same as in regard to the two earlier passages extracted by the learned Judge	 one from the California Supreme Court judgment and the other from Warden Duffy. We 50 do not know who the Surgon is and from where the quotation is extracted. Besides	 as we have repeatedly said	 there has been a significant improvement in the mechanism of hanging. Old experiences are not to be discarded out of hand but they cannot be applied to new situations without a critical examination of their relevance to those situations. Otherwise	 technical sciences	 particular the medical science	 shall have made their remarkable advance in vain. We have given our anious and respectful consideration to the passages extracted and the observations made by our learned Brother Bhagwati. The fact that these are contained in a majority judgment is no justification for ignoring them. In a matter as socially sensitive as this	 it is improper to overlook the opposing point of view	 whether it is expressed in a minority judgment or elsewhere. Bhagwati	 J.	 says in the last passage extracted by us from his judgment that the method of hanging is perhaps regarded by some as more humane than electrocution or the application of lethal gas. Dr. Ghatate has his own point of view. He contends that electrocution is the quickest and the simplest method of executing the death sentence	 in which there is no scope for failure of the apparatus. He has two alternative submissions to make: One	 falling electrocution	 administration of lethal injection should be adopted as a method for executing the death sentence and	 two	 failing lethal injection	 shooting by a firing squad should be resorted to. We assume that the learned counsel has obtained his client 's instructions on the use of these alternative methods	 particularly shooting. Truly	 we are not concerned to determine the merits and demerits of these alternative methods of execution which are canvassed by the learned counsel and some of which are in vogue in some other parts of the world. If the method prescribed by section 354(5) of the Code is violative of Article 21	 the matter must rest there because. as contended by Dr. Ghatate himself	 the Court cannot substitute any other method of execution for the method prescribed by law and which alone is permissible under the law. However	 an understanding of the process involved in the competing methods used for executing the death sentence and their comparative assessment is not altogether pointless. If it can be demonstrated clearly that some other method has a real and definite advantage over the method of hanging	 the question will naturally arise as to why the State does not adopt that method. An arbitrary rejection 51 of a method proved to be simpler	 quicker and more humane than hanging may not answer the constitutional prescription. The Royal Commission mentions in paragraph 717 of its Report that during their visit to America	 they inspected the electric chairs in the Sing Sing Prison	 New York and the District of Columbia Jail	 Washington	 and that they received evidence about the use of the electric chair in other States. The Commission has given the following account of the method of electrocution based primarily on the information obtained by them in Washington: "The execution takes place at 10 a.m. At midnight on the preceding night the condemned man is taken from the condemned cell block to a cell adjoining the electrocution chamber. About 5.30 a.m.	 the top of his head and the calf of one leg are shaved to afford direct contact with the electrodes. (The prisoner is usually handcuffed during this operation to prevent him from seizing the razor.) At 7.15 a.m.	 the death warrant is read to him and about 10 O 'clock he is taken to the electrocution chamber. Three officers strap the condemned man to the chair	 tying him around the waist	 legs and wrists. A mask is placed over his face and the electrodes are attached to his head and legs. As soon as this operation is completed (about two minutes after he has left the cell	) the signal is given and the switch is pulled by the	 electrician; the current is left on for two minutes	 during which there is alternation of two or more different voltages. When it is switched off	 the body slumps forward in the chair. The prisoner does not make any sound when the current is turned on	 and unconsciousness is apparently instantaneous. He is not	 however	 pronounced dead for some minutes after the current is disconnected. The leg is sometimes slightly burned	 but the body is not otherwise marked or mutilated. " In paragraph 7 8	 the Commission says: "No case of mishap was recorded in Washington	 but it seems that in some other States there have been occasions when the current failed to reach the chair when the switch was engaged. Some States install an emergency 52 generator in order that an execution may not be delayed by failure of the commercial. " Lest it be thought that the Report of the Royal Commission	 having been given 30 years back	 the description of the process of electrocution contained therein may not apply to the modern conditions	 we may draw attention to the cover story on the death penalty which appended in the issue of `Time ' magazine	 dated Jan. 24	 1983. The write up. which is predominantly in favour of abolition of the death sentence	 contains a vivid description of the methods of electrocution	 gas chamber and lethal injection which are used in some of the States in America. The cover story	 "An Eye for an eye"	 gives the following description of electrocution at page 12 of the issue; "The chair is bolted to the floor near the back of a 12 ft. by 18 ft. room. You sit on a seat of cracked rubber secured by rows of copper tacks. Your ankles are strapped into half moon shaped foot cuffs lined with canvas. A 2 in wide greasy leather belt with 28 buckle holes and worn grooves where it has been pulled very tight many times is secured around your waist just above the hips. A cool metal cone encircles your head. You are now only moments away from death. But you still have a few seconds left. Time becomes stretched to the outermost limits. To your right you see the mahogany floor divider that separates four brown church type pews from the rest of the room. They look odd in this beige Zen like chamber. There is another door at the back through which the witnesses arrive and sit in the pews. You stare up at two groups of fluorescent lights on the ceiling. They are on. The paint on the ceiling is peeling. You fit in neat and snug. Behind the chair 's back leg on your right is a cable wrapped in gray tape. It will sluice the electrical current to three other wires : two going to each of your feet	 and the third to the cone on top of your head. The room is very quiet. During your brief walk here	 you looked over shoulder and saw early morning light creeping over the Berkshire Hills. Then into this silent tomb. 53 The air vent above your head in the ceiling begins to hum. This means the executioner has turned on the fan to suck up the smell of burning flesh. There is little time left. On your right you can see the waist high	 one way mirror in the wall. Behind the mirror is the executioner	 standing before a gray marble control panel with gauges	 switches and a foot long lever of wood and metal at hip level. The executioner will pull this lever four times. Each time 2	000 volts will course through your body	 making your eyeballs first bulge	 then burst	 and than broiling your brains . " Electrocution was first introduced in the New York State prison at Auburn on August 6	 1890. The initial victim was one William Kemmler whose challenge to the validity of the method of electrocution as a cruel and unusual punishment was rejected by the U.S. Supreme Court. Though this method is now advocated as a humanitarian move	 in reality	 its original introduction appears to have been the result of the effort of an electrical company to market its products. Though it is generally believed that death by electrocution is entirely painless	 a distinguished French scientist	 L.G.V. Rota	 disputes this contention. Labelling this method of executing the death sentence as a form of torture	 Rota contends that a condemned victim may be alive for several minutes after the current has passed through his body without a physician being certain whether death has actually occurred or not. He adds that some persons have greater physiological resistance to the electric current than others	 and that	 no matter how weak the person	 death cannot supervene instantly. Another attack on the pain of death in electrocution was made by Nicola Tesla	 the electrical wizard. The opposite view is 54 expressed by Robert G. Elliott in `Agent of Death ' (New York: Dutton	 1940). Robert Elliott	 one time executioner for several eastern States	 who officiated at 387 executions maintains that electrocution is painless. Power seldom fails in countries like America	 U.S.S.R.	 and Japan. Even then	 the failure of electrical energy supplied by commercial undertakings has been considered in America as an impediment in the use of the electric chair. With frequent failures of electrical power in our country	 the electric chair will become an instrument of torture. One can well imagine the consequences of the use of the electric chair in the city of Calcutta or	 for the matter of that	 in the capital City of Delhi. For technical reasons	 even the Supreme Court complex is not spared from frequent load shedding during working hours. Lawyers	 litigants and Judges have now trained themselves to suffer the inconvenience arising from failure of electricity. But	 it would be most unfair to expect a prisoner condemned to death to get into the electric chair twice or thrice	 for the reason that the electric current failed during the process of electrocution. It is not our intention to blame anyone for the power crisis because it would seem that it is partly due to natural causes and is not man made. But facts are facts must be faced. Execution by lethal gas is discussed by the Royal Commission in paragraphs 719 to 722 of its Report. The Commission says in paragraph 719 that they did not inspect any lethal gas chamber during their visit to America	 but they were supplied with written evidence about execution by lethal gas. They also had the advantage of hearing evidence from one Mr. Philip Allen	 the then Deputy Chairman of the Prison Commission and of receiving a report from the English Neurologist	 Dr. Macdonald Critchley	 both of whom had inspected the lethal chamber at St. Quentin Prison	 California	 of which the famous Clinton Duffy was a warden. In paragraph 720 of the Report	 the Royal Commission says: "The lethal chamber is very elaborate in comparison with the apparatus needed for other methods of execution. It is expensive to install and requires a complicated series of operations to produce the gas and to dispose of it afterwards". The description of the gas chamber method given by the Royal Commission is like this: The chamber is required to be hermetically sealed to prevent leakage of cyanide gas	 the doors leading to the 55 chamber are required to be connected with an electrically controlled panel	 the prisoner 's arms	 legs and abdomen are tied to the chair with leather straps	 a pound of sodium cyanide pellets is placed in a trap in the seat of the chair and three pints of sulphuric acid and six pints of water mixed in a lead container are placed in a position to receive the cyanide pellets. A rubber hose is connected to the head of a stethoscope which is strapped to the prisoner 's chest. The entire clothing of the prisoner is removed except for shorts. Finally	 a leather mask covers the prisoner 's face. After the prisoner is pronounced dead	 Amonia gas is forced into the chamber until the indicators within the chamber show that all cyanide gas has been neutralised. The Amonia gas is then removed by a specially constructed exhaust fan. Paragraph 721 of the Royal Commission 's Report shows that the length of time taken by this method of execution is about 45 minutes. In paragraph 722 the Commission says that when this method was first employed	 it was thought that the gas had a suffocating effect which would cause acute distress	 if not actual pain	 before the prisoner became unconscious. According to the Commission	 it seems to be now generally agreed that unconsciousness ensues very rapidly in the gas chamber method. Clinton Duffy	 warden of San Quentin Prison	 California	 says that the operation of the gas chamber execution includes "funnels	 rubber gloves	 graduates	 towels soap	 pliers	 scissors	 fuses and a mop: in addition	 sodium cyanide eggs	 sulphuric acid	 distilled water	 and amonia". Coming to the method of shooting by a firing squad	 we have already extracted an opinion which shows that there are chances of bungling in that method. But a more serious objection to which this method is open is that it is the favourite past time of military regimes which trample upon human rights with impunity. They shoot their citizens for sport. Shooting is an uncivilised method of 56 extinguishing life and it is enough to say in order to reject in that the particular method is most recklessly and want only used for liquidating opposition and smothering dissent in countries which do not respect the rule of law. Lastly	 murders by shooting are becoming a serious menace to law and order in our country. Shooting by the State in order to kill for executing the order of a Court of law will unwittingly confer respectability on the 'shoot to kill	 tactics which are alarmingly growing in proportion. What remains now to consider is the system of lethal injection. The Royal Commission has discussed that method in paragraphs 735 to 749 of its Report. Lethal injection is by and large an untried method. But that is not its most serious defect. The injection is required to be administered intravenously	 which is a delicate and skilled operation. The Prison Medical Officers who were interviewed by the Royal Commission doubted whether the system of lethal injection was more humane than hanging (See paragraph 739 of the Report). The British Medical Association told the Commission that no medical practitioner should be asked to take part in bringing about the death of a convicted murderer and that the Association would be most strongly opposed to any proposal to introduce a method of execution which would require the services of a medical practitioner	 either in carrying out the actual process of killing or in instructing others in the technique of that process. The Commission expressed its conclusion in paragraph 749 by saying that it could not recommend that	 in the present circumstances	 lethal injection should be substituted for hanging since they were not satisfied that executions carried out by the administration of lethal injections would bring about death more quickly	 painlessly and decently in all cases. The Commission	 however	 recommended	 unanimously and emphatically	 that the question should be periodically examined	 especially in the light of the progress made in the science of anaesthetics. We may lastly refer to the affidavit filed by one Dr. N.P. Singh who was allowed to intervene on behalf of the National Association of Critical Care Medicine (India)	 New Delhi. He says in his affidavit that society has come to realise that death by hanging is not a merciful and pleasant way of putting a patient to a terminal end: "As members of the medical profession and the Association	 we feel that a patient may be put to sleep by any sleep inducing injection (barbiturates) and subsequently	 the above mentioned electrocution 57 and gas chamber methods may be applied as the patient 's sense would have been dulled by the drug injection". This system certainly has the merit of naivete and novelty but	 on the face of it	 the system is impracticable and would appear to involve complications and torture to an uncommon degree. We may in this behalf draw attention to an article "The Death Penalty: Moral argument and capricious practice" by Andrew Rutherford	 a senior Lecturer in Law at the Southampton University	 which appeared in 'The Listener ' of July 7	 1983	 published by the British Broadcasting Corporation. In that article	 the writer refers to an incident to the effect that in 1982 December	 a prisoner was put to death in Texas by means of an injection of sodium pentothol. The incident led the American Medical Association to declare: "The use of a lethal injection as a means of terminating the life of a convict is not the practice of medicine". The writer proceeds to say that there is not likely to be any great enthusiasm for the method of electrocution as well	 since in April 1983	 it took three 30 seconds shots of 1	900 volts before a man in Alabama was pronounced dead. It is clear from this narrative that neither electrocution	 nor lethal gas	 nor shooting	 nor even the lethal injection has any distinct or demonstrable advantage over the system of hanging. Therefore	 it is impossible to record the conclusion with any degree of certainty that the method of hanging should be replaced by any of these methods. But	 for due compliance with the mandate of Article 21	 it is not enough to find that none of the other methods of execution has a real advantage over the method of hanging. The other methods may have some of the vices of being impracticable	 complicated	 slow and uncertain. That is only one side of the picture because	 the circumstance that the other methods are not feasible does not establish of its own force that the method of hanging is free from blame. The weakness of defence cannot establish the plaintiff 's case. In other words	 though hanging may not suffer in comparison with the other methods	 what we must determine is whether	 hanging as a method of executing the death sentence	 considered in isolation	 that is to say	 without comparison with the other methods	 offends against the cannons of Article 21. There is a responsible body of scientific and legal opinion which we have discussed	 which holds the view that hanging by rope 58 is not a cruel mode of executing the death sentence. That system is in operation in large parts of the civilised world. That was the only method of executing the death sentence which was known to the Constituent Assembly and yet it did not express any disapproval of that method	 though it touched upon the question of death sentence while dealing with the President 's power of pardon under Article 72 (1) (c) of the Constitution. Having given our most anxious consideration to the central point of inquiry	 we have come to the conclusion that	 on the basis of the material to which we have referred extensively	 the State has discharged the heavy burden which lies upon it to prove that the method of hanging prescribed by section 354(5) of the Code of Criminal Procedure does not violate the guarantee contained in Article 21 of the Constitution. The material before us shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner 's apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. The system of hanging	 as now used	 avoids to the full extent the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop. The system is consistent with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation of brutality of any kind. At the moment of final impact when life becomes extinct	 some physical pain would be implicit in the very process of the ebbing out of life. But	 the act of hanging causes the least pain imaginable on account of the fact that death supervenes instantaneously. 'Imaginable '	 because in the very nature of things	 there are no survivors who can give first hand evidence of the pain involved in the execution of a death sentence. Dead men tell no tales. The question as regards the factor of pain has therefore to be judged on the basis of scientific investigations and by applying the test of reason. The conclusion that the system of hanging is as painless 59 as is possible in the circumstances	 that it causes no greater pain than any other known method of executing the death sentence and that it involves no barbarity	 torture or degradation is based on reason	 supported by expert evidence and the findings of modern medicine. On the question of pain involved in a punishment	 the concern of law has to be to ensure that the various steps which are attendant upon or incidental to the execution of any sentence	 more so the death sentence	 do not constitute punishments by themselves. If a prisoner is sentenced to death	 it is lawful to execute that punishment and that only. He cannot be subjected to humiliation	 torture or degradation before the execution of that sentence	 not even as necessary steps in the execution of that sentence. That would amount to inflicting a punishment on the prisoner which does not have the authority of law. Humaneness is the hall mark of civilised laws. Therefore	 torture	 brutality	 barbarity	 humiliation and degradation of any kind is impermissible in the execution of any sentence. The process of hanging does not any of these	 directly	 indirectly or incidentally. Accordingly	 we hold that the method prescribed by section 354(5) of the Code of Criminal Procedure for executing the death sentence does not violate the provision contained in Article 21 of the Constitution. There is one point which still remains to be considered and that is the point made by Shri R.K. Garg. He contends that it is inhuman to kill under any circumstances	 even under a judgment of a Court and	 therefore	 no death sentence can be executed at all by means fair or foul. The fact that the method prescribed by law for executing the death sentence is humane makes no difference for	 according to him	 Article 21 imposes a total prohibition on the taking of human life	 which would include the execution of death sentence. It is impossible to accept this contention. The argument	 in truth and substance	 is aimed at the validity of the death sentence itself and	 indeed	 much of what Shri Garg said is directed at showing the invalidity of section 302 of the Penal Code rather than the invalidity of section 354(5) of the Code of Criminal Procedure. We are unable to appreciate how it is unlawful	 in the abstract and in the absolute	 to execute a lawful order. If it is lawful to impose the sentence of death in appropriate cases	 it would be lawful to 60 execute that sentence in an appropriate manner. Article 21	 undoubtedly	 has as much relevance on the passing of a sentence	 as on the manner of executing it. Therefore	 a two fold consideration has to be kept in mind in the area of sentencing. Substantively	 the sentence has to meet the constitutional prescription contained	 especially	 in Articles 14 and 21. Procedurally	 the method by which the sentence is required by law to be executed has to meet the mandate of Article 21. The mandate of Article 21 is not that the death sentence shall not be executed but that it shall not be executed in a cruel	 barbarous or degrading manner. If we were to accept the argument of Shri Garg	 the imposition of death sentence would become an exercise in futility: pass the sentence of death if you may but	 it shall not be executed in any manner	 under any circumstances. A Constitution so carefully conceived as ours cannot be construed to produce such a startling result. Indeed	 the argument	 if carried to its logical conclusion will make it impossible to execute any sentence whatsoever	 particularly of imprisonment	 because every sentence of imprisonment necessarily involves pain and suffering to a lesser or greater degree. Painless punishment is a contradiction in terms. The constraints of Bachan Singh deserve to be preserved but that means that it is only a rare degree of malevolence which invites and justifies the imposition of death sentence. Granting that the sentence of death is constitutionally valid	 not even the sophisticated sensitivities can justly demand that those upon whom the extreme penalty of law is imposed because of the magnitude of their crime	 should not be made to suffer the execution of that sentence	 unaccompanied by torture or degradation of any kind. If the larger interests of the community as opposed to the interests of an individual require that the death sentence should be imposed in an exceptional class of cases	 the same societal interests would justify the execution of that sentence	 though in strict conformity with the requirements of Article 21. Though Article 21 was the focal point of this case	 almost everyone of the learned counsel appearing on behalf of the petitioners drew inspiration from the Eighth Amendment to the United States Constitution which provides that "Excessive bail shall not be required	 nor excessive fines imposed	 nor cruel and unusual punishments inflicted. " 61 The prohibition against cruel and unusual punishment dates back to the Magna Carta though it found recognition in the English Law by its adoption in the English Declaration of Rights in 1688. The purpose of this enactment was to check the barbarous punishments which were common during the regime of the Stuarts	 like pillory	 disemboweling	 decapitation and drawing and quartering. As a result of the English reform movement which was started in the seventeenth century by the European humanists	 these punishments gradually fell into disrepute. The fundamental principal underlying the prohibition against cruel and unusual punishments was incorporated into the Bill of Rights in 1791. The early development of law in America shows that the prohibition against cruel and unusual punishments concerned itself with unusual cruelty only	 the emphasis being upon "unnecessary cruelty and pain". In Kemmler	 death by electrocution was held not necessarily cruel. In O 'Neil vs Vermont Justice Field	 in his dissenting opinion	 enlarged the concept of unusual punishment to cover penalties "which shock the sense of justice". In Trop vs Dulles a sharply divided Court held that divesture of citizenship was constitutionally forbidden. Chief Justice Warren	 speaking for three Justices	 observed that the content of the Eighth Amendment was not static and that it "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society". According to the learned Chief Justice	 the Eighth Amendment whose "basic concept is nothing less than the dignity of man"	 ensures "the principle of civilized treatment". After the decision in Troop	 the American Supreme Court has formulated a sophisticated definition of the Eighth Amendment clause in a series of important cases called the "18 Key cases". A resume of those cases can be found in 'Substantive Criminal Law ' by Prof. M. Cherif Bassiouni (Ed. 1978	 pp. 44 45). It shows that even a second electrocution after the failure of the first attempt	 provided it is not an intentional effort to inflict unnecessary suffering	 was held not violative of the Eighth Amendment (Louisiana vs Resweber. It was observed in that case that: "the cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of 62 punishment	 not the necessary suffering involved in any method employed to extinguish life humanely. No one can deny that some suffering and anguish is bound to result to the condemned man at the time of execution of his death sentence. But it is not wholly inappropriate to observe that having had the opportunity to avoid that suffering and anguish	 he chose the path of risking it in favour of earning some other benefit. His minimal suffering is real	 but so we believe was the suffering of his victims and even so will be the suffering of the victims of those other criminals who believe that they can commit crimes of great atrocity with relative impugnity". It is this 'relative impunity ' which attracts the rule in Bachan Singh. Though the Eighth Amendment has thus a dynamic content which has been evolved over the years as public moral perceptions changed from time to time	 several concurring opinion show that in America	 capital punishment is not considered to be violative of the Eighth Amendment. In the words of Chief Justice Earl Warren	 "the death penalty has been employed throughout our history	 and	 in a day which it is still widely accepted	 it cannot be said to violate the constitutional concept of cruelty". What the Eighth Amendment prohibits is "something inhuman and barbarous and something more than the mere extinguishment of life". The suffering necessarily involved in the execution of death sentence is not banned by the Eighth Amendment though the cruel form of execution is. No sustenance can therefore be derived from the Eighth Amendment to the argument that either the death sentence or the method of executing that sentence by hanging is violative of Article 21 on the ground that death sentence is barbarous or that the method of hanging is cruel	 inhuman or degrading. Hanging as a mode of execution is not relentless in its severity. As Judges we ought not to assume that we are endowed with a divine insight into the needs of a society. On the contrary	 we should heed the warning given by Justice Frankfurter: "As history amply proves	 the judi 63 ciary is prone to misconceive the public good by confounding private notions with constitutional requirements". For these reasons the challenge to the constitutionality of section 354(5) of the Code of Criminal Procedure fails and the writ petitions are dismissed. Orders whereby the executions of death sentence were stayed are hereby vacated except in W.P. (Crl.) No. 503 of 1983 which will be listed on 27th September	 1983	 for being heard on merits. SLP (Crl.) No. 196 of 1983 is dismissed. SABYASABHI MUKHARJI	 J. I respectfully agree with the conclusions of my learned brother	 the Chief Justice. I would like	 however	 to state that in the judgment	 my learned brother has observed: "Therefore	 as soon as it is shown that the Act invades a right guaranteed by Article 21	 it is necessary to enquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law	 that is to say	 by a procedure which is just	 fair and reasonable. " I respectfully agree that as soon as it is shown that a Statute or Act in question invades a right guaranteed by Article 21	 it is necessary to enquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law. I	 however	 respectfully at present would not express my opinion whether in all such cases	 the State has a further initial burden to prove that the procedure established by law is just	 fair and reasonable. With this observation	 I respectfully agree with all the other conclusions and observations made by my brother	 the learned Chief Justice. H.L.C. Petitions dismissed.

The petitioners who had been sentenced to death for the offence of murder were awaiting execution of the sentence. Their plea was that hanging by rope is a cruel and barbarous method of executing of the sentence and section 354(5) Cr. P.C. which prescribes that method is violative of article 21 of the Constitution The respondents raised a preliminary objection that the question had already been concluded by the decision in Bachan Singh vs State of Punjab	 [1983]1 S.C.R. 145. The objection was overruled. Counsel for petitioners contended that section 354(5)	 Cr. P.C. is bad because it is impermissible to take human life even under the decree of a court since it is human to take life under any circumstances; that by reason of the provision contained in article 21	 it is impermissible to cause pain or suffering of any kind whatsoever in the execution of any sentence	 much more so while executing a death sentence; that the method of hanging prescribed by section 354(5) for executing the death sentence is barbarous	 inhuman and degrading; that it is the constitutional obligation of the State to provide for a humane and dignified method for executing the death sentence	 which does not involve torture of any kind; and that if the method prescribed by section 354(5) does not meet this requirement	 no death sentence can be executed since no other method for executing that sentenced is prescribed by or is permissible under the law. Counsel also referred to the judgment in Machhi Singh vs State of Punjab	 and suggested that it virtually overrules Bachan Singh. 2 Counsel for respondents contended that a sentence lawfully imposed by a court can and has to be executed	 though by causing the least pain and suffering and by avoiding torture or degradation of any kind; that the method prescribed by section 354(5)	 Cr. P.C. for executing the death sentence is a humane and dignified method involving the least amount of pain and cruelty; that no other method of executing the death sentence is quicker or less painful; and that article 21 does not postulate that no pain or suffering whatsoever shall be caused in the execution of a sentence lawfully imposed by a court	 including the sentence of death. Counsel further submitted that unless on the face of it	 the method prescribed by for executing law a sentence is revolting to conscience	 courts must surrender their discretion to legislative judgment when the challenge to the constitutionality of the law is based on considerations which the court is not equipped to evaluate by manageable judicial standards	 and contended that the court 's evaluation of the method of hanging prescribed by law shall have to be inevitably subjective	 almost to the point of being legislative in character	 which must be avoided at all costs. Dismissing the petitions	 HELD: 1. The method prescribed by section 354(5)	 Cr. P.C. for executing the death sentence does not violate the provision contained in article 21 of the Constitution. [59 E] (a) The material placed before the Court shows that hanging by rope is not a cruel mode of executing the death sentence: the system consists of a mechanism which is easy to assemble; preliminaries to the act are quick and simple and are free from anything that would unnecessarily sharpen the poignancy of the prisoner 's apprehension; the chances of accident during the course of hanging can safely be excluded; the method is quick and certain and eliminates the possibility of a lingering death; unconsciousness supervenes almost instantaneously after the process is set in motion and death follows as a result of dislocation of the cervical vertebrae. The system of hanging	 as now used	 avoids to the full extent the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop. The mechanics of the method of hanging have undergone significant improvement over the years and hanging has been almost perfected into a science. The system is consistent with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation or brutality of any kind. At the moment of final impact when life becomes extinct	 some physical pain would be implicit in the very process of the ebbing out of life. But	 the act of hanging causes the least pain imaginable on account of the fact that death supervenes instantaneously. The conclusion that the system of hanging is as painless as is possible in the circumstances	 that it causes no greater pain than any other known method of executing the death sentence and that it involves no barbarity	 torture or degradation is based on reason	 supported by expert evidence and the findings of modern medicine. [58 C H	 59 A] Report of the Royal Commission on Capital Punishment (U.K.)	 September	 1953; 35th Report of the Law Commission of India on Capital Punishment	 3 September 30	1967; George R. Scott: Hanging Through the Ages (Torchstream Books	 London); J W. Cecil Turner (Ed.) Kenny 's Outlines of Criminal Law	 19th Ed.	 1966; Harry Elmer Barnes and Negley K. Teeters: New Horizons in Criminology	 3rd Ed.	 1966; U.N. Department of Economic and Social Affairs: Capital Punishment	 (New York	 1962); and Bachan Singh; 	 referred to. (b) On the question of pain involved in a punishment	 the concern of law has to be to ensure that the various steps which are attendant upon or incidental to the execution of any sentence	 more so the death sentence	 do not constitute punishments by themselves. Humaneness is the hall mark of civilized laws. If a prisoner is sentenced to death	 it is lawful to execute that punishment and that only. He cannot be subjected to barbarity	 humiliation	 torture or degradation before the execution of that sentence	 not even as necessary steps in the execution of that sentence. The process of hanging does not involve any of these directly	 indirectly or incidentally.[59 B D] (c) Hanging by rope was the only method of executing the death sentence which was known to the Constituent Assembly and yet it did not express any disapproval of that method	 though it touched upon the question of death sentence while dealing with the President 's power of pardon under article 72(1)(c) of the Constitution. [58 B] (d) The system of hanging by rope is in operation in large parts of the civilized world and there is a responsible body of scientific and legal opinion which holds that hanging by rope is not a cruel mode of executing the death sentence. [57 H	 58 A] (e) Hanging as a mode of execution is not relentless in its severity. Judges ought not to assume that they are endowed with a divine insight into the needs of a society; they should heed the warning that	 as history amply proves	 the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements. [62 G H	 63 A] (f) The Court is not required to determine the merits and demerits of the alternative methods of execution which are in vogue elsewhere because the Court cannot substitute any other method of execution for the method prescribed by law. However	 an understanding of the process involved in the competing methods used for executing the death sentence is not altogether pointless because if some other method has a real and definite advantage over a the method of hanging	 arbitrary rejection of that method by the state may not answer the constitutional prescription. However	 neither electrocution	 nor lethal gas	 nor shooting	 nor even the lethal injection has any distinct or demonstrable advantage over the system of hanging. The general belief that death by electrocution is entirely painless is not free from doubt. That apart	 failure of electrical energy. supplied by commercial undertakings has been considered in America as an impediment in the use of the electric chair. With frequent failures of electric power in our country	 the electric chair will become an instrument of torture. Lethal injection is by and large an untried 4 method. The injection is required to be administered intravenously which is a delicate and skilled operation. The Royal Commission on Capital Punishment (U.K.) was not satisfied that executions carried out by the administration of lethal injections would bring about death more quickly	 painlessly and decently in all cases. Shooting by a firing squad	 apart from being unreliable	 is an uncivilised method of extinguishing life. It is the favourite pastime of military regimes which trample upon human rights with impunity. It is most recklessly and wantonly used for liquidating opposition and smothering dissent in countries which do not respect the rule of law. Murders by shooting are becoming a serious menace to law and order in our country. Shooting by the State in order to kill for executing the order of a court will unwittingly confer respectability on the 'shooting to kill ' tactics which are alarmingly growing in proportion	 The suggestion that a death convict may be put to sleep by a sleep inducing injection before applying other methods such as electrocution or gas chamber	 is not only impracticable but would appear to involve complications and torture to an uncommon degree. [50 F H	 57 E	 B	 G H	 56 A B	 56 G	 57 A] (g) Matters of policy are certainly for the legislature to consider and therefore	 by what mode or method the death sentence should be executed	 is for the legislature to decide. But the function of the legislature ends with providing what it considers to be the best method of executing the death sentence. Where the function of the legislature ends	 the function of the judiciary begins. It is for the courts to decide upon the constitutionality of the method prescribed by the legislature for implementing or executing a sentence. Whether that method conforms to the directs of the constitution is a matter not only subject to judicial review but it constitutes a legitimate part of the judicial function. The question whether the particular method prescribed by law for executing the death sentence is in consonance with the Constitution inevitably involves a value judgment based upon a comparative evaluation of alternate methods for executing the death sentence. But more than any such comparative evaluation	 the court 's plain and primary duty is to examine whether	 even if the method selected by the legislature is the least objectionable	 it is still open to the objection that it involves under torture	 degradation or cruelty. The Court 's task will end with pointing out why	 if at all	 the method at present provided by law is contrary to the mandate of the constitution. To pronounce upon the constitutionality of the law is not legislating	 even if such pronouncement involves the consideration of the evolving standards of the society. [35 A C; E F] 2. (a) The contention that it is inhuman to kill under any circumstances and that article 21 imposes a total prohibition on the taking of human life has to be rejected. If the argument were to be accepted	 the imposition of death sentence would become an exercise in futility. Indeed	 if carried to its logical conclusion	 the argument will make it impossible to execute any sentence whatsoever	 particularly of imprisonment because of every sentence of imprisonment necessarily involves pain and suffering to a lesser or greater degree. A constitution so carefully conceived as ours cannot be construed to produce such a startling result. Painless punishment is a contradiction in 5 terms. If it is lawful to impose the sentence of death in appropriate cases	 it would be lawful to execute that sentence in an appropriate manner. The mandate of article 21 is not that the death sentence shall not be executed but that it shall not	 be executed in a cruel	 barbarous or degrading manner. When the sentence of death is constitutionally valid	 not even the sophisticated sensitivities can justly demand that those upon whom	 the extreme penalty of law is imposed because of the magnitude of their crime should not be made to suffer the execution of that sentence	 unaccompanied by torture or degradation of any kind. If the larger interests of the community as opposed to the interests of an individual require that a death sentence should be imposed in an exceptional class of cases	 the same societal interests would justify the execution of that sentence	 though in strict conformity with the requirements of article 21. [59 G	 60 C D	 59 H	 60B F G] (b) The argument that either death sentence is barbarous or that the method of hanging is cruel	 inhuman or degrading cannot draw any sustenance from the Eighth Amendment Clause of the U.S. Constitution. The American Supreme Court has formulated a sophisticated definition of that clause which has a dynamic content. Several concurring opinions show that	 in America	 capital punishment is not considered to be violative of the Eighth Amendment. What the Eighth Amendment prohibits is "something inhuman and barbarous and something more than the mere extinguishment of life". The suffering necessarily involved in the execution of death sentence is not banned by the Eighth Amendment though the cruel form of execution is. [62 F G	 D E] Kemmler; 	 ; O ' Neil vs Vermont	 144 U	S. 323; Trop vs Dulles	 ; ; and Louisiana vs Resweber	 ; ; referred to. (a) There has to be finality to litigation	 criminal as well as civil	 if law is not to lose its credibility. No one of course can question that law is a dynamic science	 the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends. But	 that is not to say that judgments rendered by this Court after a full debate should be reconsidered every now and then and their authority doubted or diluted. That would be doing disservice to law since certainty over a reasonably foreseeable period is the hall mark of law. [11 F G] The question that	 in the circumstances mentioned in Bachan Singh	 it is permissible to impose the sentence of death for the offence of murder must be treated as concluded and not any longer open to argument. In Machhi Singh	 the learned Judges have but formulated broad guidelines to assist the Courts in deciding the vexed question as to whether the death sentence is at all called for. Evidently	 the judgment does not enlarge the scope of the rule in Bachan Singh by broadening the narrow field of cases which call for the death sentence. The constraints of Bachan Singh deserve to be preserved but that means that it is only a rare degree of malevolence which invites and justifies the imposition of death sentence. [11 B D] 6 Bachan Singh vs State of Punjab ; ; and Machhi Singh vs State of Punjab	[1983]; 3 S.C.C. 470 referred to. (b) Both the majority and the minority in Bachan Singh considered the question of the validity of the death sentence from the procedural aspect also	 with special reference to the method of hanging prescribed by law for executing the death sentence. Nevertheless	 the question whether the particular mode of executing the death sentence prescribed by sec. 354(5) Cr. P.C.	 violates the provisions of article 21 of the Constitution was not directly and substantially in issue in Bachan Singh and it was not considered specifically by the majority as an independent issue. It would not be proper to sidetrack that the question and refuse to examine it fully because of the incidental consideration which it received in Bachan Singh.[14 D	 H	 15 C D] (c) The retribution involved in the theory 'tooth for tooth ' and 'an eye for eye ' has no place in the scheme of civilized jurisprudence and the court cannot turn a deaf ear to the petitioners ' claim for justice on the ground that the enormity of their crimes has resulted in grave injustice to the victims of those crimes. The court is concerned to ensure due compliance with constitutional mandates	 no matter the occasion. Justice has to be done dispassionately in accordance with the constitutional attitudes whether it is a murdered or a smuggler who asks for it. Law cannot demand its pound of flesh.[16 E G] Per Chandrachud	 C.J. and Pathak	 J. (Sabyasachi Mukharji	J. reserving his opinion on the point) In cases arising under article 21 of the Constitution	 if it appears that a person is being deprived of his life or has been deprived of his personal liberty	 the burden rests on the State to establish the constitutional validity of the impugned law. [32 F] There is a fundamental distinction between cases arising under article 14 and those which arise under articles 19 and 21. In the generality of cases under article 14	 the challenge is based on the allegation that the impugned provision is discriminatory since it singles out the petitioner for hostile treatment from amongst persons who	 being situated similarly	 belong to the same class as the petitioner and the petitioner has to plead and prove that there are others who are situated similarly as him and that he is singled out and subjected to unfavourable treatment. Whether there are other persons who are situated similarly as the petitioner and whether he is subjected to hostile discrimination are questions of fact and the burden to establish the existence of these facts rests on the petitioner. In a challenge based on the violation of article 19 or article 21 the petitioner has undoubtedly to plead that	 for example	 his right to free speech and expression is violated or that he is deprived of his right to life or personal liberty. But once he shows that	 which really is not a part of the burden of proof	 it is for the State to justify the impugned law or action by proving that	 for example	 the deprivation of the petitioner 's right to free speech and expression is saved by cl. (2) of article 19 since it is in the 7 nature of a reasonable restriction on that right in the interests of matters mentioned in cl. (2)	 or that	 the petitioner has been deprived of his life or personal liberty according to a just	 fair and reasonable procedure established	 by law. In cases arising under article 19	 the burden is never on the petitioner to prove that the restriction is not reasonable or that the restriction is not in the interests of matters mentioned in cl. Likewise	 in cases arising under article 21	 the burden is never on the petitioner to prove that the procedure prescribed by law which deprives him of his life or personal liberty is unjust	 unfair or unreasonable. As soon as it is shown that the Act invades a right guaranteed by article 21 it is necessary to inquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law	 that is to say by a procedure which is first	 fair and reasonable. [23 D H] Any case	 even a locus classicus is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations; factual and legal	 but care must be taken to see that this is not done mechanically	 that is without a close examination of the rational of the decision which is cited as a precedent. Human mind	 trained even in the strict discipline of law	 is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly identical situations.[21 G H] Saghir Ahmed vs State of U.P.	 ; 	 Khyerbari Tea Co. vs State of Assam	 ; ; Western U.P. Electric Power & Supply Co. Ltd. vs State of U.P.	 ; ; Mohd. Faruk vs State of M.P.	 ; ; Laxmi Khandsari vs State of U.P.	 ; ; and Bachan Singh vs State of Punjab	 ; ; referred to. Ram Krishna Dalmia vs Justice S.R. Tendolkar	 ; ; Mohd	 Hamif Quareshi vs State of Bihar; ; ; Madhu Limaye vs Sub Divisional Magistrate	 ; ; and Pathumma vs State of Kerala	 ; explained and distinguished. B Baneriji vs Anita Pan	 ; ; decided per incurium. In the instant case the impugned statute	 on the face of it	 provides for a procedure for extinguishing life. Therefore	 not even the initial obligation to show the fact of deprivation of life or liberty rests on the petitioners. The State must establish that the procedure prescribed by section 354(5)	 Cr. P. C. for executing the death sentence is just	 fair and reasonable. [33 A B] Per Sabyasachi Mukharji	 J. As soon as it is shown that a Statute or Act in question invades a right guaranteed by article 21	 it is necessary to enquire whether the State has proved that the prisoner has been deprived of his life or personal liberty according to procedure established by law. However	 at present I would not express my 8 opinion whether in all such cases	 the State has a further initial burden to prove that procedure established by law is just	 fair and reasonable. [63 E L]