Summarize the following court judgment. orm at all	 some regard must be had to the plight of the victim or his or her family by making provision for payment of compensation. While it is commonly accepted that these convicted of violations of the criminal law must "pay their debt to society	 little emphasis is placed upon requiring offenders to "pay their debt" to their victims. These again are matters for the Parliament to Provide.] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 512 of 1978. Appeal by Special Leave from the Judgment and Order dated 12 9 74 of the Allahabad High Court in Criminal Appeal No. 501/74. AND CRIMINAL APPEAL NO. 513 of 1978 Appeal by Special Leave from the Judgment and Order dated 9 1 1978 Kerala High Court in Crl. A. No. 213/77 and Ref. Trial No. 3/77. AND CRIMINAL APPEAL NO. 513 of 1978 Appeal by special leave from the Judgment and Order dated 28 9 77 of the Allahabad High Court in Criminal Appeal No. 261/73 and Reference No. 6/77. R. K. Garg for the Appellant in Crl. A. No. 513/78. section K. Bagga	 Amicus Curiae for the Appellant in Crl. A.512/78 P. K. Pillai	 Amicus Curiae for the Appellant in Crl. A. No. 511/78 D. P. Uniyal and M. V. Goswami for the State of U.P. K.R. Nambiar for the State of Kerela. The Judgment of Krishna Iyer and Desai	 JJ. was delivered by Krishna Iyer	 J.; Sen	 J. gave a dissenting opinion. KRISHNA IYER	 J. THE DEADLY QUANDARY To be or not to be: that is the question of lethal import and legal moment	 in each of these three appeals where leave is confined to the 89 issue of the propriety of the impost of capital penalty against which the brutal culprits desparately beseech that their dear life be spared by the Summit Court and the incarceratory alternative be awarded instead. There is	 as here	 a judicial dimension to the quasi Hamletian dilemma when "a murder most foul" demands of sentencing justice punitive infliction of death or the lesser punishment of life imprisonment	 since the Penal Code leaves the critical choice between physical liquidation and life long incarceration to the enlightened conscience and sensitized judgment of the Court. A narration of facts is normally necessary at this early stage but we relegate it to a later part	 assuming for the nonce the monstrosity the murder in each case. Is mere shock at the horrendous killing sufficient alibi to extinguish one more life	 de hors circumstances	 individual and social	 motivational and psychical ? The crime and the criminal	 contemporary societal crisis	 opinions of builders and moulders of the nation	 cultural winds of world change and other profound factors	 spiritual and secular	 and above all	 constitutional	 inarticulately guide the Court 's faculty in reading the meaning of meanings in preference to a mechanistic interpretation of section 302 I.P.C. projected in petrified print from Macaulay 's vintage mint. We banish the possible confusion about the precise issue before us it is not the constitutionality of the provision for death penalty	 but only the canalisation of the sentencing discretion in a competing situation. The former problem is now beyond forensic doubt after Jagmohan Singh( ') and the latter is in critical need of tangible guidelines	 at once constitutional and functional. The law reports reveal the impressionistic and unpredictable notes struck by some decisions and the occasional vocabulary of horror and terror	 of extenuation and misericordia	 used in the sentencing tailpiece of judgments. Therefore	 this jurisprudential exploration	 within the framework of section 302 I.P.C.	 has become necessitous	 both because the awesome 'either/or ' of the Section spells out no specific indicators and law in this fatal area cannot afford to be conjectural. Guided missiles. with lethal potential	 in unguided hands	 even judicial	 is a grave risk where the peril is mortal though tempered by the appellate process. The core question the only question that occupies our attention	 within the confines of the Code	 is as to when and why shall capital sentence be pronounced on a murderer and why not in other cases. The penological poignancy and urgency of the solution is obvious since the human stakes are high	 and error	 even judicial error (1) Jagmohan Singh v State of Uttar Pradesh (1973) I S.C.C.20. 7 196SCI/79 90 silences for ever a living being and despatches him to that 'undiscovered country from whose bourn no traveller returns ': nor	 once executed	 can 'storied urn or animated bust back to its mansion call the fleeting breath '. The macabre irrevocability of the extreme penalty makes the sombre issue before us too important to be relegated	 as often happens	 to a farewell paragraph	 with focus on fright ful features of the crime and less stress on the crime doer and related factors. When human rights jurisprudence and constitutional protections have escalated to sublime levels in our country and heightened awareness of the gravity of death penalty is growing all over the civilised globe in our half century	 is it right to leave section 302 I.P.C. in vague duality and value free neutrality? Any academic who has monitored Indian sentencing precedents on murder may awaken to 'the overt ambivalence and covert conflict ' among judges 'concerning continued resort to the death sentence ' which	 according to Prof. Blackshield	( ') 'seems to minor the uncertainties and conflicts of values in the community itself '. This tangIed web of case law has been woven around the terse terms of section 302	 I.P.C. during the last hundred years. THE OLD TEXT AND THE NEW LIGHT Section 302. Whoever commits murder shall be punished with death	 or imprisonment for life	 and shall also be liable to fine. Such stark brevity leaves a deadly discretion but beams little legislative light on when the court shall hang the sentencee or why the lesser penalty shall be preferred. This facultative fluidity of the pro vision reposes a trust in the court to select. And 'discretionary navigation in an unchartered sea is a hazardous undertaking unless recognised and recognizable principles	 rational and constitutional	 are crystallised as 'interstitial legislation ' by the highest court. The flame of life cannot flicker uncertain! and so section 302 I.P.C. must be invested with pragmatic concreteness that inhibits ad hominem Responses of individual judges and is in penal conformance with constitutional norms and world conscience. Within the dichtomous frame work of section 302 I.P.C.	 upheld in Jagmohan Singh	 we have to evolve working rules of punishment bearing the markings of enlightened flexibility and societal sensibility. Hazy law	 where human life hangs in the balance	 injects an agonising consciousness that judicial error may (1) Prof. A. R. Blackshield	 Associate Professor of Law	 University of New South Wales: Capital Punishment in India: The Impact of the Ediga Anamma Case July 1977. 91 prove to be 'crime ' beyond punishment '. And history bears testimony to reversal of Court verdict by Discovery of Time. The tragic speech in the Commons of former Home Secretary (Chuter Ede) makes ghastly reading (1) "I was the Home Secretary who wrote on Evans ' papers. "The law must take its course. " I never said	 in 1948 that a mistake was impossible. I think Evans ' case shows	 in spite of all that has been done since	 that a mistake was possible	 and that	 in the form in which the verdict was actually given on a particular case	 a mistake was made. I hope that no future Home Secretary	 which in office or after he has left office	 will ever have to feel that although he did his best and no one could accuse him of being either careless or inefficient	 he sent a man to the gallows who was not "guilty as charged. " That is why we devote a whole judgment to what ordinarily is a brief finale at the end of a long opinion. ln Ediga Annamma(2)	 this Court did set down some working formulae whereby a synthesis could be reached as between death sentence and life imprisonment. Notwithstanding the catalogue of grounds warranting death sentence as an exceptional measure	 'life ' being the rule	 the judicial decisions have been differing (and dithering) at various levels	 with the result the need for a thorough re examination has been forced on us by counsel on both sides. Prof. Blackshield makes an acid comment: (3) "The fact is that decisions since Ediga Anamma have displayed the same pattern of confusion	 contradictions and aberrations as decisions before that case . To test this	 I have abstracted from the All India Reporter seventy cases in which the Supreme Court has had to choose between life and death under Section 302: the last twenty five reported cases before the date of Ediga Anamma	 and the next forty five (including	 of course	 Ediga Anamma itself) on or after that date." "But where life and death are at stake	 inconsistencies which are understandable may not be acceptable. The hard evidence of the accompanying "kit of cases" compels the (1) The Crusade against Capital Punishment in Great Britain by Elizabeth Orman Tuttle	 1961	 p. 96. (2) Ediga Annama vs State of Andhra Pradesh ; (3) Prof. A. R. Blackshield	 Associate Professor of Law	 University of New South Wales: Capital Punishment in India. The Impact of Ediga Annamma. Case July 1977. 92 conclusion that	 at least in contemporary India	 Mr. Justice Douglas ' argument in Furman vs Georgia(l) is correct: that arbitrariness and uneven incidence are inherent and inevitable in a system of capital punishment; and that therefore in Irritant constitutional terms	 and in spite of Jagmohan Slngh the retention of such a system necessarily violates Article 14 's guarantee of "equality before the law. " The author further observes: "One source of the confusion seems to have been an under current of disagreement as to the correctness and applicability of the argument in Ediga Anamma. But the only direct challenge has been in Bishan Dass vs State of Punjab	 AIR 1975 SC 573 (January 10	 1975: Case 52) and	 with respect	 the challenge there seems clearly misconceived. " What a study of the decisions of the higher courts on the life or death choice shows is that judicial impressionism still shows up and it is none too late to enunciate a systematised set of criteria or at least reliable beacons Ediga Annamma (supra) in terms	 attempted this systematisation: "Let us crystallise the positive indicators against death sentences under Indian Law currently. Where the murderer is too young or too old	 the clemency of penal justice helps him. Where the offender suffers from socio economic	 psychic or penal compulsions insufficient to attract a legal exception or to down grade the crime into a lesser one	 judicial com mutation is permissible. Other general social pressures	 war ranting judicial notice	 with an extenuating impact may in special cases	 induce the lesser penalty. Extraordinary features in the judicial process	 such as that the death sentence has hung over the head of the culprit excruciatingly long	 may persuade the Court to be compassionate. Like wise	 if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive (i.e. combining the "murder" provision with the "unlawful assembly" provisione again (if) the accused has acted suddenly under another 's instigation	 without premeditation	 perhaps the court may humanely opt for life	 even life where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand	 the weapons used and the manner of their use the (1) 408 U. section at 238. 93 horrendous features of the crime and hapless	 helpless state A of the victim	 and the like	 steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible	 abandoning retributive ruthlessness	 amending the deterrent creed and accepting the trend against the extreme and irrevocable penalty of putting out life. ' '(l) From what we have said and quoted and from the persistence Or forensic divarication	 it has now become necessary to have a second look at the life versus death question	 not for summarising hitherto decided cases and distilling the common factors but for applying the Constitution to cut the Gordian knot. The Suprema lex must set the perspective and illumine the meaning of subordinate statutes especially where some provisions contain obfuscatory elements	 for	 our founding fathers have not hammered out a merely pedantic legal text but handed down a constellation of human values	 cherished principles and spiritual norms which belight old codes and imperial laws and impel new interpretations and legislations to tune up the New Order. The Indian Penal Code must be sensitized by the healing touch of the Preamble and Part lII. Wrote Wheeler	 J :(2) "That court best serves the law which recognises that the rules of law which grew up in a remote generation may	 in the fullness of experience	 be found to serve another generation badly	 and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society. " Benjamin N. Cardozo	 said: (3) "If judges have woefully misinterpreted the mores of their day	 or if the mores of their day are no longer those of ours	 they ought not to tie	 in helpless submission	 the hands of their successors. " Such a solution to the death/life alternatives	 where the Code leaves the Judge in the cold	 has its limits. "Justice Homes put his view pithily when he said that judges make law interstitially	 that they are confined from molar to molecular motion. Justice Frankfurter puts (1) Ediga Annamma vs State of A. P. (1974) 4 S.C.C. 443 at 453. (2) Dwy vs Connecticut Co.	 	 99. (3) The Nature of the Judicial Process by Benjamin N. Cardozo. p. 152. 94 it more colloquially saying that judges make law at retail	 legislators at wholesale. ' '(l) Therefore	 it is no heresy to imbibe and inject the social philosophy of the Constitution into the Penal Code to resolve the tension between the Past and the Present. QUO VADIS DISCRETIONARY DEATH SENTENCE ? lndian Justice and the constitutional order are centuries ahead of the barbarities of Judge Jeffreys of 'Bloody Assizes ' fame; and ideologically away from the years of imperial butchery of Indian uprising when the Penal Code was drafted. Since Law reflects Iife	 new meanings must permeate the Penal Code. The deprivation of life under our system is too fundamental to be permitted save on the gravest ground and under the strictest scrutiny if Justice	 Dignity	 Fair Procedure and Freedom are creedally constitutional. So it is that in this bunch of appeals the court is called upon by counsel for the appellants to repel sentence by hunch and to lay down broad norms and essential principles as beacon lights which make the law of murder	 in the sentencing sector	 most restrictive and least vagarious. More illumination and closer examination of the provisions viz.	 s.302 in the larger humanist context and constitutional conspectus	 is necessitous. Legal justice must be made of surer stuff where deprivation of life may be the consequence. So we have heard a wider range of submissions and sought the	 'amicus ' services of the learned Solicitor General. An intervener (Committee for Abolition of Death Penalty	 interested in abolition of death penalty has submitted	 through Dr. L. M. Singhvi	 some material. We record our appreciation af the assistance given by the former and take due note of the views presented by the latter. Light	 not heat	 is welcome from any source in aid of judicial justice. We are cognizant of the fact that no inflexible formula is feasible which will provide a complete set of criteria for the infinite variety of circumstances that may affect the gravity of the crime of murder	 as pointed out by Palekar	 J. in Jagmohan Singh (supra). The learned Judge further observed: "The impossibility of laying down standards is at the very core of the criminal law as administered in India which in vests the judges with a very wide discretion in the matter of fixing the degree of punishment. The discretion in the matter of sentence is	 as already pointed out	 liable to be corrected 	 by superior courts." (p. 35) (1) "Social Justice" Ed. by Richard B. Brandt	 p. 109. 95 What is important to remember is that while rigid prescriptions and random prescriptions which imprison judicial discretion may play tricks with justice	 the absence	 altogether	 of any defined principles except a variorum of rulings may stultify sentencing law and denude is of decisional precision. 'Well recognised principles ' is an elegant phrase. But what are they	 when minds differ even on the basics ? Fluctuating facts and keleidoscopic circumstances	 bewildering novelties and unexpected factors	 personal vicissitudes and societal variables may defy standard setting for all situations; but that does not mean that humane principles should be abandoned and blanket discretion endowed	 making life and liberty the plaything of the mentality of human judges. Benjamin Cardozo has pricked the bubble of illusion about the utter objectivity of the judicial process: (1) "I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface	 however	 that their existence and influence are not likely to be disclaimed. .Deep below consciousness are other forces	 the likes and the dislikes	 the predilections and the prejudices	 the complex of instincts and emotions and habits and convictions	 which make the man	 whether he be litigant or judge. " Section 302 is silent; so the judges have to speak	 because the courts must daily sentence. Merely to say that discretion is guided by wellrecognised principles shifts the issue to what those recognised rules are. Are they the same as were exercised judicially when Bhagat Singh was swung into physical oblivion ? No. The task is to translate in new terms the currently consecrated principles	 informed by tradition	 methodized by analogy	 disciplined by system	 and subordinated to 'the primordial necessity of order in social life '. The error of parallax which dated thought processes	 through dusty precedents	 may project needs to be corrected. That is the essay we undertake here. Moreover	 the need for well recognised principles to govern the 'deadly ' discretion is so interlaced with fair procedure that unregulated power may even militate against article 21 as expounded in Maneka Gandhi 's case(2)	 an aspect into which we do not enter here. Judicial absolutism or ad hocism is anathema in our constitutional scheme. It (1) The Nature of the Judicial Process by Benjamin N. Cardozo p. 167. (2) Maneka Gandhi vs Union of India (1978) I S.C.C. 248. (2) Maneka Gandhi v Union of India (1978) 1 S.C.C.248 96 has been said that 'a judge untethered by a text is a dangerous instrument '; and we may well add	 judge power	 uncanalised by clear principles may be equally dangerous when the consequence of his marginal indiscretion may be horrific hanging of a human being until he be dead. Palekar	 J. himself accepted that "well recognised principles" must govern sentencing discretion. The precise criteria which constitute	 and the normative nature of those principles did not directly fall for decision as that case proceeded on the basis that the lower courts had rightly exercised the sentencing discretion. The precise and only issue that was mooted and decided in Jagmohan Singh(l) was the constitutionality of section 302 I.P.C. and the holding was that 'the death sentence imposed after trial in accordance with procedure established by law is not unconstitutional '. The acceptance of the invulnerability of discretionary power does not end the joureney; it inaugurates the search for those 'well recognised principles ' Palekar	 J.	 speaks of in the Jagmohan case. Incidental observations without concentration on the sentencing criteria are not the ratio of the decision. Judgments are not Bible for every line to be venerated. When the legislative text is too bald to be self acting or suffers zigzag distortion in action the primary obligation is on Parliament to enact necessary clauses by appropriate amendments to section 302 I.P.C. But if legislative undertaking is not in sight judges who have to implement the Code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles even if it may appear to possess the flavour of law making. Lord Dennings observations are apposite: "Many of the Judges of England have said that they (lo not make law. They only interpret it. This is an illusion which they have fostered. But it is a notion which is now being discarded everywhere. Every new decision on every new situation is a development of the law. Law does not stand still. It moves continually. Once this is recognised	 then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic	 a mere working mason	 laying brick on brick	 without thought to the overall design. He must be an architect thinking of the structure as a whole	 building for society a system of law which is strong	 durable and just. It is on his work that civilised society itself depends." (1) The Supreme Court of India A Socio Legal Critique of its Juristic Techniques by Rajeev Dhavan Foreword by Lord Denning	 M. R. 97 The Court 's tryst with the Constitution obligates it to lay down A general rules	 not a complete directory	 which will lend predictabilily to the law vis a vis the community and guide the judiciary in such a grim verdict as choice between life and death. The right to life	 in our constitutional order	 is too sacred to be wished away without so much as Directive Principles for its deprivation	 save sweeping judical discretion and reference for confirmation or appellate review_ the know how for exercise of either being left to the assumed infallibility of the curial process in the face of the daily reality that there are cxtreme variations among judges themselves on 'when ' and 'why ' the extreme penalty shall or shall not be inflicted. Currently	 the welter of the British Indian and post Independence decisions and the impact of laconic legislative changes in the Criminal Procedure Code the competition among the retributive	 deterrent	 the reformative and even the existentialist theories of punishment and of statistical studies and sociological and cultural winds settle the lethal fate of the living man in the cage. Law must be honest to itself. Is it not true that some judges count the number of fatal wounds	 some the nature of the weapons used	 others count the corpses or the degree of horror and yet others look into the age or sex of the offender and even the lapse of time between the trial court 's award of death sentence and the final disposal of the appeal ? With some judges	 motives	 provocations	 primary or constructive guilt	 mental disturbance and old feuds	 the savagery of the murderous moment or the plan which has preceded the killing	 the social milieu	 the sublimated class complex and other odd factors enter the sentencing calculus. Stranger still	 a good sentence of death by the trial court is sometimes upset by the Supreme Court because of Law 's delays. Courts have been directed execution of murderers who are mental cases	 who do not fall within the McNaghten rules	 because of the insane fury of the slaughter. A big margin of subjectivism	 a preference for old English precedents	 theories of modern penology	 behavioural emphasis or social antecedents	 judicial hubris or human rights perspectives	 criminological literacy or fanatical reverence for outworn social philosophers buried in the debris of time except as part of history this plurality of forces plays a part in swinging the pendulum of sentencing justice erratically. Therefore	 until Parliament speaks	 the court cannot be silent. (Hopefully	 s.302 l. P.C. is being amended	 at long last	 but it is only half way through as the Rajya Sabha proceedings show. We will revert to it later). 98 Prof. Blackshield	 on an analytical study of Indian death sentence decisions	 has remarked with unconventional candour: "But where life and death are at stake	 inconsistencies which are understandable may not be acceptable." His further comments are noteworthy: "The fact is that in most cases where the sentence of death under S.302 is confirmed by the Supreme Court	 there is little or no discussion of the reasons for confirmation. Sometimes there is a brief assertion of "no extenuating circumstances" (which seems to imply that the Court is making its own discretionary judgment; at other times there is a brief assertion of "no ground to interfere" (which seems to imply that the Court is merely reviewing the legitimacy of the High Court 's choice of sentence). The result is to obfuscate	 probably beyond any hope of rationalisation	 the analytical issues involved. "(supra) The twists and turns in sentencing pattern and the under emphasis on the sentencee 's circumstances in decided cases make an in depth investigation of the 'principles ' justifying the award of death sentence a constitutional duty of conscience. This Court must extricate	 until Parliament legislates	 the death sentence sector from judicial sub jectivism and consequent uncertainty. As Justice Cardozo	 in The Nature of the Judicial Process	 bluntly states: (1) "There has been a certain lack of candor in much of the discussion of the theme	 or rather perhaps in the refusal to discuss it	 as if judges must lose respect and confidence by the reminder that they are subject to human limitations. if there is anything of reality in my analysis of the judicial process	 they do not stand aloof on these chills and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by. " It is fair to mention that the humanistic imperatives of the Indian Constitution	 as paramount to the punitive strategy of the Penal code	 have hardly been explored by courts in this field of 'life or death ' at the hands of the law. The main focus of our judgment is on this poignant gap in 'human rights jurisprudence ' within the limits of the Penal Code	 impregnated by the Constitution. To put it pithily	 a world order voicing the worth of the human person	 a cultural legacy (l) pp. 167 168. 99 charged with compassion	 an interpretative liberation from colonial A callousness to life and liberty	 a concern for social justice as setting the sights of individual justice	 interact with the inherited text of the Penal Code to yield the goals desiderated by the Preamble and Articles 14	 19 and 21. Nor can courts be complacent in the thought that even if they err the clemency power will and does operate to save many a life condemned by the highest court to death. For one thing	 the uneven politics of executive clemency is not an unreality when we remember it is often the violent dissenters	 patriotic terrorists	 desperadoes nurtured by the sub culture of poverty and neurotics hardened by social neglect	 and not the members of the Establishment or con formist class	 who get executed through judicial and clemency processes. Executive commutation is no substitute for judicial justice; at best it is administrative policy and at worst pressure based partiality. In either case	 that court self condemns itself which awards death penalty with a sop to its conscience that the habitual clemency of Government will soften the judicial excess in sentence. If justice under the law justifies the lesser sentence it is abdication of judicial power to inflict the extreme penalty and extraneous to seek consolation in the possible benign interference by the President. The criteria for clemency are often different. We arc thus left with the necessity to decipher sentencing discretion in the death/life situation. SENTENCING CYNOSURES Having stated the area and object of investigation we address ourselves to this grave penological issue purely as judges deciding a legal problem	 putting aside views	 philosophical or criminological	 one holds. But law	 in this area	 cannot go it alone; and cross fertilisation from sociology	 history	 cultural anthropology and current national perils and developmental goals and above all	 constitutional currents	 cannot be eschewed. Let us leave 'law ' a while and begin with drawing the backdrop with a lurid brush. Every sombre dawn a human being is hanged by the legal process	 the flag of humane justice shall be hung half mast. Such is the symbolic reverence the land of Gandhi should pay to human life haltered up by lethal law. The values of a nation and ethos of a generation mould concepts of crime and punishment. So viewed	 the lode star of penal policy to day	 shining through the finer culture of former centuries	 strengthens the plea against death penalty. Moreover	 however much judicially screened and constitutionally legitimated	 there is a factor of fallibility	 a pall that falls beyond recall and a core of sublimated cruelty implied in every death penalty. 100 This is the starting point of our re appraisal of presidential and legislative texts	 with a view to evolving clearer criteria for choice between the Life Death Alternatives enacted into the Penal Code. We may	 for emphasis	 recall section 302 I.P.C.	 at once laconic and draconic	 which reads: s.302. Punishment for murder. Whoever commits murder shall be punished with death	 or imprisonment for life	 and shall also be liable to fine. " We approach the resolution of the punishment predicament in a manner at once legal	 logical and criminological and impregnated with values constitutional. Therefore	 we will first study the significant legislative developments in the two interacting Codes and related par liamentary essays at change. Where broad conclusions emerge from such an investigation	 constitutional reinforcement may be sought. Since the Constitution is paramount and paramountcy is paramountcy	 its expansive humanism must overpower traditional 'terrorism ' in the practice of sentencing. When this stage is reached and formulation of guidelines made	 we will consider the criminological foundations of theories of punishment which harmonise with the human rights jurisprudence of our cultural cosmos. Finally	 we will set down the salient cynosures for judges in their day to day labours. One sentencing aspect which has found prominent place in the Criminal Procedure Code	 1973	 but more often ignorantly ignored	 needs to be highlighted for future guidance. The cases actually de manding decision	 their factual matrices and the actual application of The principles we have formulated to the appeals under consideration are the decisive part of the judgment. The sister Codes the Indian Penal Code and the Criminal Procedure Code are interwoven into the texture of sentencing. So much so	 the various changes in s.367 of the Procedure Code	 1898 and its re incarnation in s.354 of the Code of 1973 impact on the inter pretation of section 302 of the Penal Code. The art of statutory construction seeks aid from connective tissues	 as it were	 of complementary enactments. This mode offers a penological synthesis Parliament legislatively intended. From this angle	 we may examine the history of the amendments to the Procedure Code in so far as they mould ' the sentencing discretion vested by section 302 I.P.C. Vintage words adapt their semantic content with change in Society 's thoughtways and people 's mores. Linkwise	 Law Life mutuaIity moulds judicial construction. So when a nineteenth century Code	 101 with vital impact on life and liberty	 falls for examination in the last quarter of the twentieth century	 criminological developments finds their way into the process of statutory decoding. This is obviously permissible	 even necessary. A progressive construction which up dates the sense of statutory language has been adopted in Weems vs United States(1) and commended by jurists. We may ask ourselves whether the Procedure Code	 which intertwines with the Penal Code lends discretionary direction? Similarly	 a brief suruey of the trend of legislative endeavours may also serve to indicate whether the people 's consciousness has been projected towards narrowing or widening the scope for infliction of death penalty. Current criminological theories	 the march of the abolitionist movement across the continents	 the national heritage and voice of the makers of modern India and parliamentary re thinking on reform of the Penal Code may also be indicators. In this setting	 let us rationalize and humanize the discretionary exercise under s.302 I.P.C. Several attempts have been made to restrict or remove death penalty under section 302 but never even once to enlarge its application. Parliamentary pressure has been to cut down death penalty	 although the section formally remains the same and is very nearly being wholly recast benignly. The cue for the Court is clear. "In 1931	 an abolition bill was introduced in the Legislative Assembly by Gaya Prasad Singh; but a motion for circulation of the bill was defeated after it was opposed by the government. The pattern after independence has been much the same. In 1956	 a bill introduced in the Lok Sabha by Mukund Lal Agarwal was rejected after government opposition. In 1958 a Resolution for abolition	 moved in the Rajya Sabha by Prithvi Raj Kapur	 was withdrawn after debate. (Its purpose had been served	 said Shri Kapur). "The ripples are created and it is in the air": Rajya Sabha Debates	 April 25	 1958	 Cols.444 528. In 1961 a further Resolution	 moved in the Rajya Sabha by Mrs Savitry Devi Nigam	 was negatived after debate. In 1962	 however Resolution moved in the Lok Sabha by Raghunath Singh received more serious attention: Lok Sabha Debates	 April 21	 1962	 Cols.307 365. The Resolution was withdrawn	 but only after the government had given an undertaking that a transcript of the debate would be forwarded to the Law Commission	 for consi 102 deration in the context of its review of the Penal Code and the Criminal Procedure Code. The result was a separate Law Commission Report on Capital Punishment	 submitted to the government in September	 1967. " (supra) At pages 354 55	 the Law Commission summarized its main conclusions as follows It is difficult to rule out that the validity of or the strength behind	 many of the arguments for abolition. Nor does the commission treat lightly the argument based on the irrevocability of the sentence of death	 the need for a modern approach	 the severity of capital punishment	 and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values. Having regard	 however	 to the conditions in India	 to the variety of the social upbringing of its inhabitants	 to the disparity in the level of morality and education in the country	 to the vastness of its area	 to the diversity of its population and to the paramount need for main taining	 law and order in the country at the present juncture India cannot risk the experiment of abolition of capital punishment. " Currently	 there is a Bill introduced in the Lok Sabha for total abolition. The most meaningful contribution to 'human rights legality ' in the 'terminal ' territory of punitivity is the parliamentary amendment to s.302 I.P.C. half way through and	 if we may say so with respect	 half fulfinling both the humanist quintessence of the Constitution and	 may be	 the creed of the Father of the Nation. Gandhiji long ago wrote in the Harijan: "God Alone Can Take Life Because He Alone Gives it" We will dwell on this Indian Penal Code (Amendment) Bill	 1972 passed by the Rajya Sabha in 1978	 later in this Judgment but mention this seminal event as a kindly portent against the 'homicidal ' exercise of discretion	 often an obsession with retributive justice in disguise. And the parliamentary prospects	 to the extent relevant to judicial discretion disappoint those who are restless if murder is divorced from death penalty. The Future shapes the Present on occasions and therefore we take note of this big change in the offing. Section 302	 as now recast by the Rajya Sabha	 reads: 302. (1) Whoever commits murder shall	 save as otherwise vided in sub section (2)	 be punished with imprisonment for life and shall also be liable to fine. 103 (2) Whoever commits murder shall	 (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed (i) while such member or public servant was on duty; (ii) in consequence of anything done or attempted to be done by such member of public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant as the case may be	 or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of this duty under section 43 of the Code of Criminal Procedure	 1973	 or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under section 37 or section 129 of the said Code; or (e) if the murder has been committed by him	 while under sentence of imprisonment for life	 and such sentence has become final	 be punished with death	 or imprisonment for life	 and shall also be liable to fine. (3) Where a person while undergoing sentence of imprisonment for life is sentenced to imprisonment for an offence under clause (e) of sub section (2) such sentence shall run consecutively and not concurrently:(1) Maybe	 the fuller and finer flow of the constitutional stream of human dignity and social justice will shape the provision more reformatively. Suffice it to say that the battle against death penalty by parliamentary action is gaining ground and those who do live in the ivory tower and Judges	 hopefully	 do not will take cognizance of this compassionate trend. The inchoate indicators gatherable from the direct reforms of death penalty take us to the next 'neon sign ' from the changes in the 104 Procedure Code. Section 302 I.P.C.	 permits death penalty but s.354 (3) of the Procedure Code	 1973 processes the discretionary power. The central issue of death/life discretion is not left naked by the Procedure Code which	 by necessary implication	 has clothed it with pro life language. The legislative development	 through several successive amendments	 has shifted the punitive centre of gravity from life taking	 to life sentence. To start with	 section 367(5) obligated the court to 'state the reason why sentence of death was not passed '. In other words	 the discretion was directed positively towards death penalty. The next stage was the deletion of this part of the provision leaving the judicial option open. And then came the new humanitarian sub section [section 354 (3)] of the Code of 1973	 whereby the dignity and worth of the human person	 under scored in the Constitution	 shaped the penal policy related to murder. The sub section provides: "When the conviction is for an offence punishable with death or	 in the alternative	 with imprisonment for life or imprisonment for a term of years	 the judgment shall state the reasons for the sentence awarded	 and	 in the case of sentence of death	 the special reasons for such sentence." (emphasis added) Thus on the statutory side	 there has been a significant shift since India became free. In practice	 the effect of the pre 1955 version is that while the former rule was to . sentence to death a person convicted for murder and to impose the lesser sentence for reasons to be recorded in writing	 the process has suffered a reversal now. Formerly	 capital punishment was to be imposed unless special reasons could be found to justify the lesser sentence. The 1955 amendment	 removing the requirement	 had left the courts equally free to award either sentence. Finally	 with the new 1973 provision "a great change has overtaken the law. .The unmistakable shift in legislative emphasis is that life imprisonment for murder is the rule and capital sentence the exception to be resorted to for reasons to be stated. It is obvious that the disturbed conscience of the State on the vexed question of legal threat to life by. way of death sentence has sought to express itself legislatively	 the stream of tendency being to wards cautious	 partial abolition and a retreat from total retention. " The twin survey of attempted and half accomplished changes in the Penal Code and the statutory mutation	 pregnant with significance	 105 wrought into the procedure Code	 definitely drives judicial discretion to a benign destination. The message of the many legislative exercises is that murder will ordinarily be visited only with life imprisonment and it is imperative that death sentence shall not be directed unless there exist "special reasons for such sentence. " The era of broad discretion when Jagmohm 's case was decided has ended and a chapter of restricted discretion has since been inaugurated. This is a direct response	 not merely to the humane call of the Constitution	 but also to the wider cultural and criminological transformation of opinion on the futility of the law of 'Life for Life ' 'red in tooth and claw '. No longer did judicial discretion depend on vague 'principles '. It became accountable to the strict requirements of s.354(3) of the 1973 Code. By way of aside	 we may note that the consolation that judicial discretion in action is geared to justice is not always true to life. "The discretion of a judge is said by Lord Camden to be the law of tyrants: it is always unkonwn; it is different in different men; it is casual	 and depends upon constitution	 temper and passion. In the best	 it is of ten times caprice; in the worst	 it is every vice	 folly and passion to which human nature is liable. . " 1 Bouv. Law Dict. 	 Rawles ' Third Revision p.885." "An appeal to a judge 's discretion is an appeal to his judicial conscience. The discretion must be exercised	 not in opposition to	 but in accordance with	 established principles of law." (Griffin vs State	 Here is thus an appeal to the informed conscience of the sentencing judge not to award death penalty save for special reasons which have direct nexus with the necessity for hanging the murderer by law. The revolutionary import of the target expression	 in a death sentence situation	 viz.	 'the special reasons for such sentence demands perceptive exploration with emotional explosion or sadistic sublimation disguised as 'special reason '. Here we enter the penological area of lethal justice	 social defence and purpose oriented punishment. Before launching on the decisive discussion it is fair to be frank on one facet of the judicial process. To quote Richard B Brandt: 106 "Much of law is designed to avoid the necessity for the judge to reach what Holmes called his 'can 't helps '	 his ultimate convictions or values. The force of precedent	 the close applicability of statute law	 the separation of powers	 legal presumptions	 statutes of limitations	 rules of pleading and evidence	 and above all the pragmatic assessments of fact that point to one result whichever ultimate values be assumed	 all enable the judge in most cases to stop short of a resort to his personal standards. When these prove unavailing	 as is more likely in the case of courts of last resort at the frontiers of the law	 and most likely in a supreme constitutional court	 the judge necessarily resorts to his own scheme of values. It may	 therefore	 be said that the most important thing about a judge is his philosophy; and if it be dangerous for him to have one	 it is at all events less dangerous than the self deception of having none. " THE CODES	 THE CONSTITUTION AND THE CULTURAL BACKDROP Primarily we seek guidelines from the two Codes	 in the omnipresence and omnipotence of the over arching Constitution. The Indian cultural current also counts and so does our spiritual chemistry	 based on divinity in everyone	 catalysed by the Buddha Gandhi compassion. 'Every saint has a past and every sinner a future ' strikes a note of reformatory potential even in the most ghastly crime. This axiom is a vote against 'death ' and hope in 'life '. Many humane movements and sublime souls have cultured the higher consciousness of mankind	 chased death penalty out of half the globe and changed world view on its morality. We will	 in the culminating part of our judgment	 cull great opinions to substantiate this assertion but content here with pointing to their relevance as part of the conspectus. Criminologists have elaborately argued that 'death ' has decisively lost the battle as the dominant paradigm and even in our Codes has shrunk into a weak exception. Even so	 what are these exceptional cases? Not hunch or happen stance but compelling grounds	 lest the 'Chancellor 's foot ' syndrome reappear in different form. So let us examine the grounds in this new sheen. An easy confusion is over stress on the horror of the crime and the temporary terror verging on insane violence the perpetrator displays	 to the exclusion of a host of other weighty factors when the scales are to settle in favour of killing by law the killer who resorts to unlaw. 107 Speaking illustratively is shocking crime	 without more	 good to justify the lethal verdict? Most murders are horrifying	 and an adjective adds but sentiment	 not argument. The personal story of an actor in a shocking murder	 if considered	 may bring tears and soften the sentence. He might have been a tortured child	 an illtreated orphan	 a jobless starveling	 a badgered brother	 wounded son	 a tragic person hardened by societal cruelty or vengeful justice	 even a Hamlet or Parasurama. He might have been angelic boy but thrown into mafia company or inducted into dopes and drugs by parental neglect or moraly mentally retarded or disordered. Imagine a harijan village backed out of existence by the genocidal fury of a kulak group and one survivor	 days later	 cutting to pieces the villain of the earlier outrage. Is the court in error in reckoning the prior provocative barbarity as a sentencing factor? Another facet. Maybe	 the convict 's poverty had disabled his presentation of the social milieu or other circumstances of extenuation in defence. Judges may be of moods	 soft or severe; their weaknesses may be sublimated prejudices; their sympathies may be persona hyper sensitivity. Did not Lord Camden	 one of the greatest and purest of English judges	 say "that the discretion of a judge is the law of tyrants; it is always unknown; it is different in different men; it is casual	 and depends upon constitution	 temper and passion. In the best it is oftentimes caprice; in the worst	 it is every vice	 folly and passion to which human nature can be liable." (State vs Cummings 36 Mo.263 278 (1865)? When life is at stake	 can such frolics of fortune play with judicial veriest? The nature of the crime too terrible to contemplate has often been regarded a traditional peg on which to hang a death penalty. Even Ediga Annamma (supra) has hardened here. But 'murder most foul ' is not the test	 speaking scientifically. The doer may be a patriot	 a revolutionary	 a weak victim of an overpowering passion who	 given better environment	 may be a good citizen	 a good administrator	 a good husband	 a great saint . What was Valmiki once? And that sublime spiritual star	 Shri Aurobindo	 tried once for murder but by history 's fortune acquitted. If we go only by the nature of the crime we get derailed by subjective paroxysm. 'Special reasons ' must vindicate the sentence and so 108 must be related to why the murderer must be hanged and why life imprisonment will not suffice. Decided cases have not adequately identified the manifold components of comprehensive sentencing. Resultantly	 what is regarded as decisive is only relevant and what is equally telling remains untold. For reasons of ' special ' grimness may be cancelled by juvenile justice. Brutality of the crime may be mollified at the level of sentencing justice by background of despair. Even a planned barbarity may be induced by an excessive obsession by one who could be a good person under other surroundings. Why	 the ghastly crime may in rare cases be due to a brain tumour. Myriad factors of varying validity may affect the death penalty either way. The criminal will be projected on the scene and examined from different angles since the punishment is on the person though for the offence. CAPITAL PENALTY AND THE CONSTITUTION In these pathless woods we must seek light from the Constitution regarding 'special reasons '. After all	 no Code can rise higher than the Constitution and the Penal Code can survive only if it pays homage to the suprema lex. The only correct approach is to read into s.302 I.P.C. and s.354(3) Cr. P.C.	 the human rights and humane trends in the Constitution. So examined	 the right to life and to fundamental freedoms is deprived when he is hanged to death	 his dignity is defiled	 when his neck is noosed and strangled. What does s.302 do by death penalty to the sentence? It finally deprives him of his fundamental rights. True	 fundamental rights are not absolute and may be restricted reasonably	 even prohibited totally	 if social defence compels such a step. Restriction may expand into extinction in extreme situations. (see Narendra Kumar) Punishment by deprivation of life or liberty must be validated by articles 21	 14 and 19 the first guarantees fair procedure	 the second is based on reasonableness of the deprivation of freedom to live and exercise the seven liberties and the last is an assurance of non arbitrary and civilized punitive treatment. But in the connotation of these and other Articles of Part III	 the social justice promise of Part IV and the primordial proposition of human dignity set high in the Preamble must play upon the meaning. Crime and penal policy have to obey the behests set out above and we may gain constitutional light on the choice of 'life ' or death ' as appropriate punishment. Article 14 surely ensures that principled sentences of death	 not arbitrary or indignant capital penalty	 shall be imposed. Equal protection emanates from equal principles in 109 exercise of discretion. In other words	 the constraint of consistency and the mandate against unreasoning disregard of material circumstances are implicit lest discretion attracts the acrid epigram of judicial caprice. The dignity of the individual shall not be desecrated by infliction of atrocious death sentence merely because there is a murder proved although crying circumstances demand the lesser penalty. To exemplify	 supposing a boy of fifteen incited by his elder brothers	 chases with them a murderer of their father and after hours of search confronts the villain and vivisects him in blood thirsty bestiality. Do you hang the boy	 blind to his dignity and tenderness intertwined? We mean to illustrate the applicability	 not to exhaust the variables. Even here we may make it clear that equality is not to be confounded with flat uniformity. The element of flexibility and choice in the process of adjudicating is precisely what justice requires in many cases. Flexibility permits more compassionate and more sensitive responses to differences which ought to count in applying legal norms	 but which get buried in the gross and rounded off language of rules that are directed at wholesale problems instead of particular disputes. Discretion in this sense allows the individualization of law and permits justice at times to be hand made instead of mass produced. In urging that discretion is the "effective individualizing agent of the law"	 Dean Pound pointed out that In proceedings for custody of children	 where compelling consideration(s) cannot be reduced to rules. determination must be left	 to no small extent	 to the disciplined but personal feeling of the judge for what justice demands." (22 Syracuse L.R. 635	 636) (1). Every variability is not arbitrary. On the contrary	 it promotes rationality and humanity. Article 19 is a lighthouse with seven lamps of liberty throwing luminous indications of when and when only the basic freedoms enshrined therein can be utterly extinguished. The Judge who sits to decide between death penalty and life sentence must ask himself: Is it 'reasonably ' necessary to extinguish his freedom of speech	 of assembly and association	 of free movement	 by putting out finally the very flame of life? It is constitutionally permissible to swing a criminal out of corporeal existence only if the 110 security of State and society	 public order and the interests of the general public compel that course as provided in article 19(2) to (6). They are the special reasons which s.354(3) speaks of. Reasonableness as envisaged in Art.19 has a relative connotation dependent on a variety of variables cultural	 social	 economic and otherwise. We may give concrete instances at a later stage of this judgment but feel it necessary to state here that what is reasonable at a given time or in a given country or in a situation of crisis may not be the same as on other occasions or in other cultural climates. Indeed	 that is the unspoken but inescapable silent command of our constitutional system. So	 we search for guidelines within s.302 I.P.C. read with s.354 Cr. P.C.	 and find that ordinarily	 for murder a life term is appropriate save where 'special reasons ' are found for resort to total extinction of the right to life and farewell to fundamental rights. Public order and social security must demand it. That is to say	 the sacrifice of a life is sanctioned only if otherwise public interest	 social defence and public order would be smashed irretrievably. Social justice is rooted in spiritual justice and regards individual dignity and human divinity with sensitivity. So	 such extra ordinary grounds alone constitutionally qualify as 'special reasons as leave no option to the court but to execute the offender if State and society are to survive. One stroke of murder hardly qualifies for this drastic requirement	 however gruesome the killing or pathetic the situation	 unless the inhere t testimony oozing from that act is irresistible that the murderous appetite of the convict is too chronic and deadly that ordered life in a given locality or society or in prison itself would be gone if this man were now or later to be at large. If he is an irredeemable murderer	 like a bloodthirsty tiger	 he has to quit his terrestrial tenancy. Exceptional circumstances	 beyond easy visualisation	 are needed to fill this bill. To repeat for emphasis	 death corporeal death is adieu to fundamental rights. Restrictions on fundamental rights are permissible if they are reasonable. Such restriction may reach the extreme state of extinction only if it is so compellingly reasonable to prohibit totally. While sentencing	 you cannot be arbitrary since what is arbitrary is per se unequal. As stated earlier you cannot be unusually cruel for that spells arbitrariness and violates Art.14. Douglas	 J. made this point clear: (1) 111 "There is increasing recognition of the fact that the basic theme of equal protection is implicit in "cruel and unusual" punishments. "A penalty . should be considered 'unusually ' imposed if it is administered arbitrarily or discriminatorily. " They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on "cruel and unusual" punishments. " In Maneka Gandhi	 this Court wrote We must reiterate here what was pointed out by the majority in E.P.Royappa vs State of Tamil Nadu (2) namely that "from a positivistic point of view	 equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic	 while the other	 to the whim and caprice of an absolute monarch. " You cannot inflict degrading punishment since the preamble speaks of 'dignity of the individual '. To stone a man to death is lynch law which breaches human dignity and is unreasonable under Art.19 and unusually cruel and arbitrary under article 14. Luckily	 our country is free from that barbarity legally. The searching question the Judge must put to himself is: what then is so extra ordinarily reasonable as to validate the wiping out of life itself and with it the great rights which inhere in him in the totally of facts	 the circle being drawn with ample relevancy. Social justice	 which the Preamble and Part IV (Art.38) hignlight as paramount in the governance of country	 also has a role to mould the sentence. But what is social justice? Despite its shadowy semantics we may get its essence once we grasp the Third World setting	 the ethos and cultural heritage and the national goal or tryst with destiny. Balakrishna Iyer	 J.	 in Sridharan Motor Service	 Attur vs Industrial Tribunal	 Madras and Others(3) observed: "Concepts of social justice have varied with age and clime. What would have appeared to be indubitable social justice to a Norman or Saxon in the days of William the 112 Conqueror will not be recognised as such in England today. What may apear to be incontrovertible social justice to a resident of Quebec may wear a different aspect to a resident of Peking. If it could be possible for Confusius	 Manu	 Hammurabi and Solomon to meet together at a conference table	 I doubt whether they would be able to evolve agreed formulae as to what constitutes social justice	 which is a very controversial field. In countries with democratic forms of Government public opinion and the law act and react on each other. " We may add that in a developing country	 in the area of crime and punishment	 social justice is to be rationally measured by social defence and	 geared to developmental goals. Thus	 we are transported to the region of effective social defence as a large component of social justice. If the murderous operation of a die hard criminal jeopardizes social security in a persistent	 planned and perilous fashion	 then his enjoyment of fundamental rights may be rightly annihilated. When	 then	 does a man hold out a terrible and continuing threat to social security in the setting of a developing country? He does so if	 by his action	 he not only murders but by that offence	 poses a grave peril to societal survival. If society does not survive	 individual existence comes to nought. So	 one test for impost of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order. To illustrate	 if an economic offender who intentionally mixes poison in drugs professionally or willfully adulterates intoxicating substances injuriously	 and knowingly or intentionally causes death for the sake of private profit	 such trader in lethal business is a menace to social security and is	 therefore	 a violator of social justice whose extinction becomes necessary for society 's survival. Supposing a murderous band of armed dacoits inteintionally derails a train and large number off people die in consequence	 if the ingredients of murder are present and the object is to commit robbery inside the train	 they practise social injustice and imperil social security to a degree that death penalty becomes a necessity if the crime is proved beyond doubt. There may be marginal exceptions or special extenuations but none where this kind of dacoity or robbery coupled with murder becomes a contagion and occupation	 and social security is so gravely imperilled that the fundamental rights of the defendant become a deadly instrument whereby many are wiped out and terror strikes community life. Then he 'reasonably ' forefeits his fundamental rights and takes leave of life under the law. The style of violence and 113 systematic corruption and deliberately planned economic offences by corporate top echelons are often a terrible technology of knowingly causing death on a macro scale to make a flood of profit. The definition of murder will often apply to them. But because of corporate power such murderous depradations are not charged. If prosecuted and convicted for murder	 they may earn the extreme penalty for taking the lives of innocents deliberately for astronomical scales of gain. Likewise	 if a man is a murderer	 so hardened	 so blood thristy	 that within the prison and without	 he makes no bones about killing others or carries on a prosperous business in cadavers	 then he becomes a candidate for death sentence. If psychoanalysts and psychiatrists find him irredeemable in the reasonable run of time then his being alive will involve more lives being lost at his hands. If	 however	 he can be reformed in a few years ' time by proper techniques of treatment imprisonment for life is good enough. But	 on the other hand if he is far too hadened that it has become his second nature to murder	 society cannot experiment with correctional strategy	 for	 when he comes out of jail	 he may kill others. Such an incurable murderer deserves to be executed under the law as it stands. Difficult to imagine though	 but even the bizarre may happen. The social setting	 the individual factors and like imponderables still remain to be spelt out. While the world is spiralling spiritually towards a society without State sanctioned homicide	 a narrow category may under current Indian societal distortions deserve death penalty although realistically the Law is held at bay by corporate criminals killing people through economic	 product	 environmental and like crimes. Death penalty functionally fails to operate in this area for reasons not relevant to unravel here but theta justice often claims human lives by hanging sentences by a distorted vision of the penological purposes anu results. What we mean is that the retention of death sentence in section 302 is rigorously restricted to these macro purposes of social defence	 state security and public order. But in practice	 purblind application of capital penalty claims victims who should not be hanged at all. The gross misapplication springs from professional innocence of the ideological	 constitutional	 criminological and cultural trends in India and abroad. Judicial decisions have hardly investigated these areas	 have conjured up grisly images of crime and criminal	 and	 fed on discarded doctrines of retribution and deterrence	 indulged in death awards blind to the socio spiritual changes taking place in theoretical foundations of criminology and sublime movements on our human 114 planet. The 'robes ' are a repository of many rare qualities but shall add to its repertory latest developments in sentencing wisdom. A paranoid preoccupation with the horror of the particular crime oblivious to other social and individual aspects is an error. The fact that a man has been guilty of barbaric killing hardly means that his head must roll in the absence of proof of his murderous recidivism	 of incurable criminal violence	 of a mafia holding society in ransom and of incompatibility of peaceful co existence between the man who did the murder and society and its members. We may constellate some of the principles. Never hang unless society or its members may probably lose more lives by keeping alive an irredeemable convict. If rehabilitation is possible by long treatment in jail	 if deterrence is possible by life long prison terms	 capital sentence may be misapplied. Death penalty is constitutionalised by reading into section 354(3) Cr. P.C.	 those 'special reasons ' which validate the sentence as reasonably necessitous and non arbitrary	 as just in the special societal circumstances.(1) Social justice turns on culture and situation. We must listen	 even as judges who are human and not wholly free from sublimated violence	 to the words of great men condensed in the message to the Delhi Conference Against Death Penalty a few months ago. Lok Nayak Jai Prakash Narain said : To my mind	 it is ultimately a question of respect for life and human approach to those who commit grievous hurts to others. Death sentence is no remedy for such crimes. A more humane and constructive remedy is to remove the culprit concerned from the normal milieu and treat him as a mental case. I am sure a large proportion of the murderers could be weaned away from their path and their mental condition sufficiently improved to become useful citizens. In a minority of cases	 this may not be possible. They may be kept in prison houses till they die a natural death. This may cast a heavier economic burden on society than hanging. But I have no doubt that a humane treatment even of a murderer will enhance man 's dignity and make society more human." (emphasis added) Andrie Sakharov	 in a message to the Stockholm Conference on Abolition organised by Amnesty International last year	 did put the point more bluntly: (2) 115 I regard the death penalty as a savage and immoral institution which undermines the moral and legal foundations of a society. A State	 in the person of its functionaries	 who like all people are inclined to making superficial conclusions who like all people are subject to influences	 connections	 prejudices and egocentric motivations for their behaviour	 takes upon itself the right to the most terrible and irreversible act the deprivation of life. Such a State cannot expect an improvement of the moral atmosphere in its country. I reject the notion that the death penalty has any essential deterrent effect on potential offenders. I am convinced that the contrary is true that savagery begets only savagery. I am convinced that society as a whole and each of its members individually	 not just the person who comes before the courts	 bears a responsibility for the occurrence of a crime. I believe that the death penalty has no moral or practical justification and represents a survival of barbaric customs of revenge. Blood thirsty and calculated revenge with no temporary insanity on the part of the judges	 and therefore	 shameful and disgusting. " (emphasis added) Tolstoy wrote an article "I cannot be silent" protesting against death sentence where he said : "Twelve of those by whose labour we live	 the very men whom we have depraved and are still depraving by every means in our power from the poison of vodka to the terrible falsehood of a creed we impose on them with all our might	 but do not ourselves believe in twelve of those men strangled with cords by those whom they feed and clothe and house	 and who have depraved and still continue to deprave them. Twelve husbands	 fathers	 and sons	 from among those upon whose kindness	 industry	 and simplicity alone rests the whole of Russian life	 are seized	 imprisoned	 and shackled. Then their hands are tied behind their backs lest they should seize the ropes by which are to be hung	 and they are led to the gallows. " Victor Hugo 's words are not vapid sentimentalism: "We shall look upon crime as a disease. Evil will be treated in charity instead of anger. The change will be simple and sublime. The cross shall displace the scaffold	 116 Reason is on our side	 feeling is on our side	 and experience is on our side." Gandhiji wrote: "Destruction of individuals can never be a virtuous act. The evil doers cannot be done to death. Today there is a movement afoot for the abolition of capital punishment and attempts are being made to convert prisons into hospitals as if they are persons suffering from a disease." Quotations from noble minds are not for decoration but for adaptation within the framework of the law. This Gandhian concept was put to the test without effects calamitous in the Chambal dacoits ' cases : "Take the classic example of the blood thirsty dacoits of Chambal. The so called dacoits	 in reality the Thakurs of Delhi in the 12th century	 were driven to the desolate Chambal Valley. They had no other recourse except to steal and	 if necessary	 murder for their survival. The 800 years injustice they suffered can be remedied only by their economic emancipation. Remember	 no one is born a criminal. Sarvodaya leaders Jayaprakash Narain and Vinoba Bhave won over dacoits with love	 affection and understanding something sophisticated	 automatic weapons failed to do. " We have	 unfortunately no follow up study of this experiment. Coming down to unhappy pragmatism	 death penalty is permissible only where reformation within a reasonable range	 is impossible. The confusion is simple but die hard. We lawfully murder the murderer	 not the murder	 by infliction of capital sentence. for which the strictest justification is needed if human ignity assured by the Constitution is not to be judicially dismissed as an expandable luxury. The deduction is inevitable that simply because a murder is brutal	 lex talionis must not take over nor humane justice flee. This proposition is tested in a crisis and the court 's responsibility is heavy to satisfy itself that the nature of the crime is considered	 not for its barbarity as such but for its internal evidence of incurably violent depravity. We have dealt with this aspect earlier but repeat	 since it is horrendous or many lives have been lost. Our culture is at stake	 our Karuna is threatened	 our Constitution is brought into contempt by a cavalier indifference to the deep reverence for life and a superstitious offering of human sacrifice to propitiate the Goddess of Justice. 117 These illustrations show that angry or scary irrationality has no place in awarding death sentence because 'reasonableness ' and fairness are the touchstone of the constitutionality of capital penalty. Thus	 we hold that only in these very limited circumstances can the court award the extreme penalty. The terrible nature of the murder should not frenzy the court into necessary 'capital ' penalty	 for its pertinence is only to the extent it helps to decide whether the prisoner	 if released after a few years in a penitentiary	 will reasonably be prone to continued killing. If life long imprisonment will prevent further killing	 he may be allowed to live with the limited fundamental rights allowed in a prison setting. Even in extreme cases	 one has to judge carefully whether the social circumstances	 personal remorse	 the excruciation of long pendency of the death sentence	 with the prisoner languishing in nearsolitary suffering all the time	 are not adequate infliction	 so as to make capital sentence too cruel and arbitrary and agonising not to violate article 14. Our penal pharmacopoeia must provide for the extreme remedy of extinction of the whole personality only in socially critical situations. This is spiritual social justice. Sometimes the thought is expressed that the life of the victim	 the misery of his family and the great pain cruelly caused	 are forgotton by those who advocate mercy for the brutal culprit. This is a fallacy fraught with miscarriage of justice. Punishment is not compensation like the 'blood money ' of Islamic law. It is not lex talionis of retributive genre. To be strictly compensatory or retributive	 the same type of cruel killing must be imposed on the killer. Secondly	 can the hanging of the murderer bring the murdered back to life ? 'The dull cold ear of death ' cannot hear the cries or see the tears of the dying convict. There is a good case for huge fines along with life terms in sentences where the sum is realisable and payable to the bereaved. The Indian Penal Code fabricated in the imperial foundry well over a century ago has not received anything but cursory parliamentary attention in the light of the higher values of the National Charter which is a testament of social justice. Our Constitution respects the dignity and	 therefore	 the divinity of the individual and preservation of life	 of everyone 's life. So the Court must permeate the Penal Code with exalted and expanded meaning to keep pace with constitutional values and the increasing enlightenment of informed public opinion. A nineteenth century text	 when applied to twentieth century conditions	 cannot be construed by signals from the grave. So	 while courts cannot innovate beyond the law	 the law cannot be viewed as cavemen 's pieces. The penological winds of change	 reflected in 118 juristic debates	 bills for abolition of death penalty in Parliament and the increasing use of clemency and commutation by the highest Executive	 must affect the living law of statutory application. There is yet another consideration of grave moment which must	 weigh with the court	 vowed to uphold Justice Social	 Economic and Political. Who	 by and large	 are the men whom the gallows swallow ? The white collar criminals and the corporate criminals whose wilful economic and environmental crimes inflict mass deaths or who hire assassins and murder by remote control ? Rarely. With a few exceptions	 they hardly fear the halter. The feuding villager	 heady with country liquor	 the striking workers desperate with defeat	 the political dissenter and sacrificing liberator intent on changing the social order from satanic misrule	 the waifs and strays whom society has hardened by neglect into street toughs	 or the poor householder husband or wife driven by dire necessity or burst of tantrums it is this person who is the morning meal of the macabre executioner. Justice Douglas	 in a famous death penalty case	 observed: Former Attorney Ramsey Clark has said: 'It is the poor	 the sick	 the ignorant	 the powerless and the hated who are executed." "A characteristic of village murderers in India: over 60 per cent of them have lost their parents	 either one or both	 at the time of commission of the crime. Inadequate parental protection is thus one of the primary factors in the upbringing of a murderer. The very existence of parents helps the healthy growth of the offspring and prevents the children from falling into the whirlpool of crime." Comments the Editor	 the Illustrated Weekly of India dated August 29	 1976. Historically speaking	 capital sentence perhaps has a class bias and colour bar	 even as criminal law barks at both but bites the proletariat to defend the proprietariat	 a reason which	 incidentally	 explains why corporate criminals including top executives who	 by subtle processes	 account for slow or sudden killing of large members by adulteration	 smuggling	 cornering	 pollution and other invisible operations	 are not on the wanted list and their offending operations which directly derive profit from mafia and white collar crimes are not visited with death penalty	 while relatively lesser delinquencies have	 in statutory and forensic rhetoric	 deserved the extreme penalty. Penal 119 law is not what the printed text professes but what the prison cell and the condemned man testify. Courts take a close up of the immediate circumstances not the milieu which made the murderer nor the environs which make him man again. In equal justice under the law	 this imbalance of section 302 I.P.C.	 in action cannot be missed. The tradition bound agencies of justicing cocooned by judicial precedents reflecting by gone values make sentencing processes 'soft ' where they should be severe and tainted with torture where a healing touch comports with culture. Indeed	 the habitual cerebrations of both wings of the profession have been guiltless of the great experiment of injecting the humanism of the National Charter through the interpretative art into criminal statistics. Social justice on the one hand	 means social defence from white collar and kindred criminals not through procrastinating illusions of punishment but instant deterrents to anti social delinquents and	 on the other	 Prison Justice	 Reforms of offenders	 non institutional strategies through community participation in correction and	 above all	 sentencing essays which ensure dignity of the individual human decencies and uplifting projects which re make the criminal into a good citizen. Several of our prison houses and practices make us wonder about institutional criminality and 'punishment ' becoming a brand of crime and	 worse	 a manufacturing process of dehumanized criminals. Prison Reform is on the national agenda. Sentencing Reform soon deserves to be added. An Indo Anglian appreciation of British Justice is sometimes relied on subconsciously	 strengthened by the ambiguous Report of the Royal Commission on Capital Penalty to substantiate the retentionist theory. But it is note worthy that Sir Samuel Romilly	 critical of the brutal penalties in the then Britain	 said in 1817: 'The Laws of England are written in blood '. Alfieri has suggested: 'Society prepares the crime	 the criminal commits it. 'We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: 'If you are going to have anything to do with the criminal courts	 you should see for yourself the conditions under which prisoners serve their sentence. ' "It would be extremely gratifying to scan the pages of British legal and social history and to find that the members of the judiciary were invariably in the fore front of the movement towards enlightenment	 progress and humanity. Unfortunately until very recently	 this has never been the case; in fact	 it would be fair to say the judges have usually been amongst the principal opponents of penal reform. It may be 120 that they were too far divided from the rest of the populace in the remoteness of their dignity	 and too far removed in their standards of physical comfort and intellectual elegance. Perhaps if a number of them had personally investigated the pitiable squalor of the prisons	 the depravity of the haulks	 and the bestial cruelties on the scaffold	 some at least might have been shocked into a public condemnation of the entire penal system. But	 as it was	 they preferred to remain either ignorant of or acquiescent to the aftermath of their judgments and of all the ensuing horrors which were being carried out in the name of the law. ' '(1) British Justice has abandoned death penalty for murder for two decades now (Homicide Act	 1957) without escalation of murderous crime. Attempts to get round the Murder (Abolition of Death Penalty) Act	 1965 have failed in Parliament and as Barbara Wooton says	 'Capital punishment thus appeared to be itself sentenced to death ' for murder. To quote the Royal Commission 's recommendation for retention after Parliament has abolished death penalty is only of historical interest: "After the Abolition Act had been in force for over seven years	 the Criminal Law Revision Committee considered whether any further changes in the penalty for murder were desirable. Their conclusions were almost entirely negative. " This perspective justifies judicial evolution of a humane penal doctrine because the legislative text is not static; and as Chief Justice Warren wrote in Trop vs Dulles the court 'must draw its meaning from the evolving standards of a maturing society '. The great answer to grave crime is culturing of higher consciousness	 removing the pressure of a perverted social order	 and nourishing the inner awareness of man 's true nature. This is true penal reform	 including jail reform. A difficult category which defies easy solution	 even in the developmental social justice background	 is the political or ideological murderer. Where freedom of faith and conscience is affirmed	 as in our Constitution	 where concentration of wealth and ethnic and social suppression are anathema and egalitarian cum distributive justice are positive goals	 'criminals ' motivated by the fundamental creed of our Constitution may well plead for the benefit of life imprisonment. Count Leo Tolstoy in his Recollections and Essays denounces death penalty even against revolutionaries by arguments too Gandhian to be dismissed by Indian judges in the sentencing sector of discretion. We 121 do not dogmatise but suggest the trend. Law by itself is no answer to Justice as the sublime instances of Socrates	 Jesus are martyrs galore in the long story of Man point. We do not underrate the importance of strong public denunciation of serious crimes like murder and heavy punishment for it. The critical question is whether capital sentence or incarceration for life in a hospital setting both stern	 but the former a final farewell to life itself	 the latter a protracted living ordeal which of the two harsh alternatives should be inflicted. Criminologists have reached near consensus that death penalty for murder is judicial futility as a deterrent and is a vulgar barbarity	 if fruitless. And Reformationists have made headway so much that about 80 countries have given up capital sentence. England had 200 offences which carried death sentences and publicly hanged boys and girls for stealing spoons and the like. Stealing persists	 death penalty has disappeared. The importance of death sentence as a deterrent is brought out with characteristic wit by Dr. Johnson	 who according to Boswell	 noted pickpockets plying their trade in a crowd assembled to see one of their number executed. There is no moral defence against the application of Justitia dulcore misericordiac temperate (Justice tempered by mercy	 literally by sweetness of compassion) even in the name of deterrence. CONDENSED GUIDELINES We may summarise our conclusions to facilitate easier application and to inject scientific formulation. The criminal law of the Raj vintage has lost some of its vitality	 notwithstanding its formal persistence in print in the Penal Code so far as section 302 I.P.C. is concerned. In the post Constitution period section 302 I.P.C.	 and section 345(3) of the Code of Criminal Procedure have to be read in the humane light of Parts III and IV	 further illumined by the Preamble to the Constitution. In Sunil Batra a Constitution Bench of this Court has observed: "Consciously and deliberately we must focus our attention	 while examining the challenge	 to one fundamental fact that we are required to examine the validity of a pre constitution statute in the context of the modern reformist theory of punishment	 jail being treated as a correctional institution" "Cases are not unknown where merely on account of a long lapse of time the Courts have commuted the sentence of 122 death to one of life imprisonment on the sole ground that the prisoner was for a long time hovering under the formenting effect of the shadow of death." "The scheme of the Code	 read in the light of the Constitution	 leaves no room for doubt that reformation	 not retribution	 is the sentencing lode star." (emphasis added) 2. The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal panacea. The current ethos	 with its strong emphasis on human rights and against death penalty	 together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice which is a paramount principle and cultural paradigm of our Constitution. The personal and social	 the motivational and physical circumstances	 of the criminal are relevant factors in adjudging the penalty as clearly provided for under the new Code of 1973. So also the intense suffering already endured by prison torture or agonising death penalty hanging over head consequent on the legal process. Although the somewhat absolescent M 'Naughten Rules codified in section 84 of the Penal Code alone are exculpatory mental imbalances	 neurotic upsets and psychic crises may be extenuatory and the sense of diminished responsibility may manifest itself in judicial clemency of commuted life incarceration. Social justice	 projected by article 38	 colours the concept of reasonableness in article 19 and non arbitrariness in article 14. This complex of articles validates death penalty in a limited class of cases as explained above. Maybe	 train dacoity and bank robbery bandits	 reaching menacing proportions	 economic offenders profit killing in an intentional and organised way	 are such categories in a Third World setting. Apart from various considerations which may weigh with the Court	 one consideration which may be relevant in given circumstances	 is the planned motivation that goaded the accused to commit the crime. Largely in India death is caused not by a cool	 calculated	 professionally cold blooded planning but something that happened on the spur of the moment. In fact in faction ridden society factions come to grip on a minor provocation and a gruesome tragedy occurs. 123 But with the development of the complex industrial society there has come into existence a class of murderers who indulge in a nefarious activity solely for personal	 monetary or property gain. These white collar criminals in appropriate cases do deserve capital punishment as the law now stands	 both as deterrent and as putting an end to an active mind indulging in incurably nefarious activities. It is such characteristics that determine more or less the gravity and the character of the offence and offender. We may venture that sometimes there is big money in the subtle "murder" business disguised as economic offences or industrial clashes; and there social justice in certain circumstances punctures 'soft ' justice and opts for lethal sentence. Where intractable mafia shows up in murderous profusion	 the sentence of death must	 reluctantly though	 defend society. The survival of an orderly society without which the extinction of human rights is a probability compels the higher protection of the law to those officers who are charged with the fearless and risky discharge of hazardous duties in strategic situations. Those officers of law	 like policemen on duty or soldiers and the like have to perform their functions even in the face of threat of violence sometimes in conditions of great handicap. If they are killed by designers of murder and the law does not express its strong condemnation in extreme penalisation	 justice to those called upon to defend justice may fail. This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence. When an environmental technologist	 food and drug chemist or engine manufacturer intentionally acts in the process	 abetted by the top decision makers in the corporation concerned	 in such manner that the consumer will in all probability die but is kept wilfully in the dark about the deadly consequence by glittering advertisement or suppressio veri	 he deserves dealth penalty for society 's survival	 if he fulfils the elements of murder. Maybe	 a re definition of murder may be needed to make this legal mandate viable. Parliamentarians and judicial personnel may benefit by the observations made by Ralph Nader on American Law in action. "In no clearer fashion has the corporation held the law at bay than in the latter 's paralysis toward the corporate crime wave. Crime statistics almost wholly ignore corporate or business crime; there is list of the ten most wanted corporations; the law affords no means of regularly collecting 124 data on corporate crime; and much corporate criminal behaviour (such as pollution) has not been made a crime because of corporate opposition. For example	 wilful and knowing violations of auto	 tire	 radiation	 and gas pipe line safety standards are not considered crimes under the relevant statutes even if lives are lost as a result. The description of an array of corporate crimes in this forthright book reveals a legal process requiring courage	 not routine duty	 by officials to enforce the laws against such outrages. The law is much more comfortable sentencing a telephone coin box thief to five years than sentencing a billion dollar price fixing executive to six weeks in jail. In one recounting after another	 the authors pile up the evidence toward one searing conclusion that corporate economic	 product	 and environmental crimes dwarf other crimes in damage to health	 safety and property	 in confiscation or theft of other people 's monies	 and in control of the agencies which are supposed to stop this crime and fraud. And it all goes on year after year by blue chip corporate recidivists. Why ? It is easy to answer "power. " But that is the beginning	 not the end	 of understanding. " 9. 'Special reasons ' necessary for imposing death penalty must relate	 not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. The crime may be less shocking than other murders and yet the callous criminal	 e.g. a lethal economic offender	 may be jeopardizing societal existence by his act of murder. Likewise	 a hardened murderer or dacoit or armed robber who kills and relishes killing	 the raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to current psycho therapy or curative techniques may deserve the terminal sentence. Society survives by security for ordinary life. If officers enjoined to defend the peace are treacherously killed to facilitate perpetuation of murderous and often plunderous crimes social justice steps in to demand death penalty dependent on the totality of circumstances. We must always have the brooding thought that there is a divinity in every man and that none is beyond redemption. But death penalty	 still on our Code	 is the last step in a narrow category where	 within a reasonable spell	 the murderer is not likely to be cured and tends to murder others	 even within the prison or immediately on release	 if left alive a king cobra which	 by chronic habit	 knows only 125 to sting to death unless defanged if possible. The patience of society must be tempered by the prudence of social security and that is the limited justification for deprivation of fundamental rights by extinguishment of the whole human being. The extreme penalty can be invoked only in extreme situations. The criminology of higher consciousness claims that by expanding inner awareness through meditational and yogic techniques the worst offender can be reformed	 if prisons can function more fulfillingly and less fatuously a consummation devoutly to be wished ! Murderers are not born but made and often can be unmade. This claim	 if experimented with and found credible	 goes a long way to remove from the scales of justice stains of human blood. When this healing hope is developed adequately	 may be the penal pharmacopoeia may remove death sentence from the system. The journey is long and we are far from home. Currently	 our prisons often practice zoological	 not humanising strategies	 as some competent reports and writings tend to prove. What we have laid down is not in supersession of those extenuating situations already considered by this Court as sufficient to commute death sentence but is supplementary to them and seeks to streamline	 so that erratic judicial responses may be avoided. In Ediga Annamma(supra)	 for instance	 this Court has held	 and while endorsing	 we repeat it for emphasis: "Where the murderer is too young or too old	 the clemency of penal justice help him. Where the offender suffers from socio economic	 psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one	 judicial commutation is permissible. Other general social pressures	 warranting judicial notice	 with an extenuating impact may	 in special cases	 induce the lesser penalty. Extraordinary features in the judicial process	 such as that the death sentence has hung over the head of the culprit excruciatingly long	 may persuade the Court to be compassionate. Likewise	 if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive	 being under section 302 read with section 149	 or again the accused had acted suddenly under another 's instigation	 without pre meditation	 perhaps the Court may humanely opt for life	 even like where a just cause or real suspicion of wifely indefility pushed the criminal into the crime. On the other hand	 the weapons used and 126 the manner of their use	 the horrendous features of the crime and hapless	 helpless state of the victim	 and the like	 steel the heart of the law for a sterner sentence. " In Srirangan vs State of Tamil Nadu the Court set aside a death sentence even though three had been killed. That was a case of three innocent lives put down without provocation and although the courts below had concurrently inflicted death sentence	 a Bench of three judges confining the focus on sentence alone commuted the punishment. The crucial role of young age (in his twenties) and a trace of mental imbalance in robbing the propriety of a death impost even from such a ghastly case of tripe murder was emphasised. This Court 's observations on the sensitive attitude to sentencing and the wide spectrums of considerations under section 354(3) Cr. P.C. are helpful here: "The plurality of factors bearing on the crime and the doer of the crime must carefully enter the judicial verdict. The winds of penological reform notwithstanding	 the prescription in section 302 binds	 the death penalty is still permissible in the punitive pharmacopoeia of India. Even so	 the current of precedents and the relevant catena of clement facts	 personal	 social and other	 persuade us to hold that even as in Nanu Ram vs State of Assam (AIR 	 the lesser penalty of life imprisonment will be a more appropriate punishment here. " A brief word about Lalla Singh. That was a case of murder of three persons and the head of one of the deceased	 a lady	 was severed. The trial judge awarded the extreme penalty to him who did this gruesome deed. But the court reduced the sentence to life term grounded on the long and agonising gap between the date of offence and the disposal of the case by the Supreme Court: "While we are unable to say that the learned Sessions Judge was in error in imposing the extreme penalty	 we feel that as the offence was committed on 18 6 1971 more than six years ago	 the ends of justice do not require that we should confirm the sentence of death passed on the first respondent. " 127 We have read the penal Code (section 302) in harmony with the Procedure Code (section 354(3)) and tuned up both the Codes to receive the command of the Constitution. 'Too kind for too long to criminals ' is a cynical comment which comes with a call for revival of more hangings as a gut reaction to a horrible crime	 forgetting that crimelessness comes only from higher consciousness. And	 in a democracy	 if such offences escalate beyond endurance and such cries rise from all over	 penal policy may change	 whether the judges and jurists and moralists and murderers relish it or not. Even so	 the basic humanity of mankind cannot be surrendered to panicky calls and passionate reactions provoked by stray though shocking	 events. Two significant developments need to be stressed before we conclude the general discussion. The first is the functional failure	 at the forensic level	 of the meaningful provision in the Procedure Code	 1973 intended to help the court to individualise sentencing justice to fit the crime and the criminal. The sentence of death can be imposed by the Sessions Judge and it can only be executed after it is confirmed by the High Court as provided in Chapter XXVIII of the Code. The procedure prescribed for the trial of sessions cases is contained in Chapter XVIII. Section 235 which is relevant for this purpose reads as under: "235(1) After hearing arguments and points of law(if any)	 the Judge shall give a judgment in the case. (2) If the accused is convicted	 the Judge shall	 unless he proceeds in accordance with the provisions of section 360	 hear the accused on the question of sentence	 and then pass sentence on him according to law. " A specific stage is prescribed in the trial of cases tried by the Sessions Court in accordance with the procedure prescribed in Chapter XVIII. After the prosecution evidence is complete and the accused is called upon to enter the defence and if evidence is led on behalf of defence	 after the defence evidence is complete	 the Court should hear arguments of the Prosecutor and the advocate on behalf of the accused (see section 234). Thereafter comes section 235 which obligates the Court to give a judgment. The question of sentence does not enter the verdict or consideration at this stage. If the accused is to be acquitted	 the matter ends there. If the Court	 upon consideration of the evidence led before it	 holds the accused guilty of any offence it must pronounce judgment to the extent that it holds accused guilty of a certain offence. 128 Thereafter a statutory duty is cast upon the Court to hear the accused on the question of sentence. Sub section (2) obligates the Court to hear the accused on the question of sentence. In fact	 this provision should be construed to mean that where the Court has to choose one or the other sentence and if with a view to inflicting a certain sentence	 special reasons are required to be recorded	 obviously the State which is the prosecutor	 must be called upon to state to the Court which sentence as prosecutor it would consider appropriate in the facts and circumstances of the case. Where the accused is convicted for an offence under section 302	 I.P.C.	 the Court should call upon the Public Prosecutor at the stage of section 235(2) to state to the Court whether the case is one where the accused as a matter of justice should be awarded the extreme penalty of law or the lesser sentence of imprisonment for life. If the Public Prosecutor informs the Court that the State as Prosecutor is of the opinion that the case is not one where extreme penalty is called for and if the Sessions Judge agrees with the submission	 the matter should end there. If on the other hand the Public Prosecutor states that the case calls for extreme penalty prescribed by law	 the Court would be well advised to call upon the Public Prosecutor to state and establish	 if necessary	 by leading evidence	 facts for seeking extreme penalty prescribed by law. Those reasons and the evidence in support of them would provide the special reasons according to the State which impel capital punishment. It would be open to the accused to rebut this evidence either by submissions or if need be	 by leading evidence. At that stage the only consideration relevant for the purpose of determining the quantum of punishment would be the consideration bearing on the question of sentence alone and not on the validity of the verdict of guilty. After considering the submissions and evidence it would be for the Court with its extreme judicious approach and bearing in mind the question that the extreme penalty is more an exception	 to determine what would be the appropriate sentence. This would ensure a proper appreciation of vital considerations entering judicial verdict for determining the quantum of sentence. We hope the Bar will assist the Bench in fully using the resources of the new provision to ensure socio personal justice	 instead of ritualising the submissions on sentencing by reference only to materials brought on record for proof or disproof of guilt. The second major development is the amendment of section 302 IPC moved by Government and already passed by the Rajya Sabha doing 129 away with death penalty for murder save in exceptional categories. So far as it goes	 the benignity of the change reflects the constitutional culture we have explained. The discretion still left	 in our view	 must be guided by the mariner 's compass we have supplied in this Judgment. THE FACTS AND CONCLUSIONS Having stated the law at length	 we have to apply it to the facts of the cases	 which we proceed to state. After all	 "Let the facts be known as they are	 and the law will sprout from the seed and turn its branches towards the light". We may now state the facts needed for the application of the principles set out above. RAJENDRA PRASAD 'S CASE A long standing family feud	 with years long roots	 let to a tragic murder. The houses of Ram Bharosey and Pyarelal had fallen out and periodic fuelling of the feud was furnished by the kidnapping of a wife	 the stabbing of a brother and the like. Lok Adalats of village elders brought about truce	 not peace. The next flare up was a murder by the appellant	 a rash son of one of the feuding elders Pyarelal. He was sentenced to life imprisonment (which means no reformation but hardening process	 since our jails are innocent of carefully designed programme of re humanizing but have an iatrogenic	 inherited drill of de humanising). The young man	 after some years served in prison	 was released on Gandhi Jayanti Day. But Gandhian hospital setting was	 perhaps	 absent in the prison which	 in all probability	 was untouched by reformation of diseased minds	 the fundamental Gandhian thought. The result was the release kept alive his vendetta on return	 aggravated by the 'zoological ' life inside. Some minor incident ignited his latent feud and he stabbed Ram Bharosey and his friend Mansukh several times	 and the latter succumbed. The 'desperate character ' once sentenced	 deserved death this second time	 said the Sessions Court and the High Court confirmed the view. An application of the canons we have laid down directly arises. There is the common confusion here. A second murder is not to be confounded with the persistent potential for murderous attacks by the murderer. This was not a menace to the social order but a specific family feud. While every crime is a breach of social peace	 the assailant is bound over only if he is a public menace. Likewise	 here was not a youth of uncontrollable violent propensities against the com 130 munity but one whose paranoid preoccupation with a family quarrel goaded him to go at the rival. The distinction is fine but real. How do we designate him 'desperate ' without blaming the jail which did little to make a man out of the criminal clay ? So long as therapeutic processes are absent from prisons	 these institutions	 far from being the healing hope of society	 prove hardening schools to train desperate criminals. The pitiless verse of Oscal Wilde is pitifully true even today: "The vilest deeds	 like poison weeds	 Bloom well in prison air; It is only what is good in Man That wastes and withers there" "Desperate criminal" is a convenient description to brand a person. Seldom is the other side of the story exposed to judicial view the failure of penal institutions to cure criminality and their success in breaking the spirit or embittering it. Prasad 's prison term never 'cured ' him. Who bothered about cure ? The blame for the second murder is partly on this neglect. Nothing on record suggests that Rajendra Prasad was beyond redemption; nothing on record hints at any such attempt inside the prison Lock up of a criminal for long years behind stone walls and iron bars	 with drills of breaking the morale	 will not change the prisoner for the better Recidivism is an index of prison failure	 in most cases. Any way	 Rajendra showed no incurable disposition to violent outbursts against his fellow men. We see no special reason	 to hang him out of corporeal existence. But while awarding him life imprisonment instead	 we direct for him mental moral healing courses through suitable work	 acceptable meditational techniques and psychotherapic drills to regain his humanity and dignity. Prisons are not human warehouses but humane retrieval homes. Even going by precedents like Lalla Singh (supra) this convict has had the hanging agony hanging over his head since 1973	 with nearsolitary confinement to boot. He must	 by now	 be more a vegetable than a person and hanging a vegetable is not death penalty. This is an additional ground for our reduction. THE KUNJUKUNJU CASE The next case is no different in the result but very different on the facts. The scenario is the usual sex triangle	 terribly perverted. One 131 randy Janardanan the appellant with a wife and two children	 developed sex relations with a fresh girl and the inevitable social resistance to this betrayal of marital fidelity led to a barbaric short cut by this in criminal of cutting to death the innocent wife and the immaculate kids in the secrecy of night. To borrow the vivid words of the courts below	 'deliberate '	 'cold blooded ' was the act	 attended as it was with 'considerable brutality '. This ruled out mitigation and supplied 'special reasons '	 according to both the courts below	 for the awesome award of death penalty. Was that right ? If the crime alone was the criterion	 yes; but if the criminal was the target	 No. The brucial question is whether the crime and its horrendous character except to the extent it reveals irreparable depravity and chronic propensity is relevant. The innocent three will not be happy because one guilty companion is also added to their number. Is Janardanan a social security risk	 altogether beyond salvage by therapeutic life sentence ? If he is	 the pall must fall on his cadayer. If not	 life must burn on. So viewed	 no material	 save juridical wrath and grief	 is discernible to invoke social justice and revoke his fundamental right to life. A course of anti aphrodisiac treatment or willing castration is a better recipe for this hypersexed human than outright death sentence. We have not even information on whether he was a desperate hedonist or any rapist with 'Y ' chromosomes in excess	 who sipped every flower and changed every hour	 so as to be a sex menace to the locality. Sentencing is a delicate process	 not a bling man 's buff. We commute the death sentence to life imprisonment. THE DUBEY CASE There were three accused to begin with. The appellant was convicted of the murder of three relatives and sentenced to death. The other two were held guilty	 by the Sessions Judge of an offence of section 302 read with section 34 I.P.C. and awarded life imprisonment. The appeal of the latter was allowed and that of the former dismissed both on crime and punishment. The learned Judges expressed themselves thus: "Considering that Sheo Shankar	 appellant caused the death of three persons so closely related to him	 by stabbing each of them in the chest one after the other	 and that too on no greater provocation than that there had been an exchange of abuses	 I do not see how it can be said that sentence of death errs on the side of severity. It was urged that this appellant was only 17	 18 years old and so in view of 132 the ruling of the Supreme Court in Harnam vs State (AIR 	 he should not be sentenced to death. In the first place	 the note of learned Sessions Judge on his statement shows that he was 19	 20 years old and he had understated his age. Secondly	 I doubt that the observation of the Supreme Court in the said case can be applicable to such a case of triple murder	 where such victim is deliberately stabbed in the chest. " The whole reasoning crumbles on a gentle probe. A thumbnail sketch of the case is that the appellant	 his father and his brother were angrily dissatisfied with a family partition and	 on the tragic day	 flung the vessels over the division of which the wrangle arose	 went inside the house	 emerged armed	 picked up an altercation eventuating in the young man (whose age was around 18 or 20) stabbing to death three members of the other branch of the family. He chased and killed	 excited by the perverted sense of injustice at the partition. It is illegal to award capital sentence without considering the correctional possibilities inside prison. Anger	 even judicial anger	 solves no problems but creates many. Have the courts below regarded the question of sentence from this angle ? Not at all. The genesis of the crime shows a family feud. He was not a murderer born but made by the passion of family quarrel. He could be saved for society with correctional techniques and directed into repentance like the Chambal dacoits. What startles us is the way the adolescence of the accused has been by passed and a ruling of this Court reduced to a casualty by a casual observation. Hardly the way decisions of the Supreme Court	 read with article 141 should be by passed. Had the appellant been only 18 years of age	 he would not have been sentenced to death as the High Court expressly states. The High Court is right in stating so. Tender age is a tender circumstance and in this country	 unlike in England of old	 children are not executed. Since the age of the accused is of such critical importance in a marginal situation like the present one	 one should have expected from the courts below a closer examination of that aspect. Unfortunately	 they have not got the accused medically examined for his age nor have they received any specific evidence on the point but have disposed of the question in a rather summary way: "In the first place	 the note of the learned Sessions Judge on his statement shows that he was 19/20 years old and he had understated his age. Secondly	 133 I doubt that the observations of the Supreme Court in the said case ; can be applicable to such a case of triple murder	 where each victim is deliberately stabbed in the chest. " A judge is no expert in fixing the age of a person and when precise age becomes acutely important reliance on medical and other testimony is necessary. One cannot agree with this manner of disposal of a vital factor bearing on so grave an issue as death sentence. Nor are we satisfied with the court vaguely distinguishing a ruling of this Court. It is not the number of deaths caused nor the situs of the stabs that is telling on that decision to validate the non application of its ratio. It is a mechanistic art which counts the cadavers to sharpen the sentence oblivious of other crucial criteria shaping a dynamic	 realistic policy of punishment. Three deaths are regrettable	 indeed	 terrible. But it is no social solution to add one more life lost to the list. In this view	 we are satisfied that the appellant has not received reasonable consideration on the question of the appropriate sentence. The criteria we have laid down are clear enough to point to the softening of the sentence to one of life imprisonment. A family feud	 an altercation	 a sudden passion	 although attended with extra ordinary cruelty	 young and malleable age	 reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence these catena of circumstances bearing on the offender call for the lesser sentence. It is apt to notice in this context that even on a traditional approach this is not a case for death sentence	 if we are to be belighted by the guidelines in Carlose John. The murder there was brutal but the act was committed while the accused were in a grip of emotional stress. This was regarded as persuasive enough	 in the background of the case	 to avoid the extreme penalty. The ruling in Kartar Singh related to a case of brutal murder and of hired murderers with planning of the criminal project. In that background	 the affirmation of the death sentence	 without any discussion of the guidelines as between 'life ' and 'death ' awards was hardly meant as a mechanical formula. It is difficult to discern any such ratio in that ruling on the question of sentence in the grey area of life versus death. The holding was surely right even by the tests we have indicated but to decoct a principle that if three lives are taken	 death sentence is the sequel	 is to read	 without warrant	 into that decision a reversal of the process spread over decades. 134 Social defence against murderers is best insured in the short run by caging them but in the long run	 the real run	 by transformation through re orientation of the inner man by many methods including neuro techniques of which we have a rich legacy. If the prison system will talk the native language	 we have the yogic treasure to experiment with on high strung	 high risk murder merchants. Neuroscience stands on the threshold of astounding discoveries. Yoga	 in its many forms	 seems to hold splendid answers. Meditational technology as a tool of criminology is a mascent ancient methodology. The State must experiment. It is cheaper to hang than to heal	 but Indian life any human life is too dear to be swung dead save in extreme circumstances. We are painfully mindful that this Judgment has become prolix and diffuse. But too many pages are not too high a price where death sentence jurisprudence demands de novo examination to do justice by the Constitution. Much of what we have said is an exercise in penal philosophy in the critical area of death sentence. "Philosophizing is distrusted by most of the professions that are concerned with the penal system. It is suspect for lawyers because they are conscious that if the criminal law as a whole is the Cinderella of jurisprudence	 then the law of sentencing is Cinderella 's illegitimate baby. " After all	 the famous words of Justice Holmes "The Law must keep its promises" must be remembered. The appeals stand allowed and the death sentences stand reduced to life imprisonment; and	 hopefully	 human rights stand vindicated. SEN	 J. In an appeal confined to sentence under Article 136 of the Constitution	 this Court has not only the power	 but as well as the duty to interfere if it considers that the appellant should be sentenced 'differently '	 that is	 to set aside the sentence of death and substitute in its place the sentence of imprisonment for life	 where it considers	 taking the case as a whole	 the sentence of death to be erroneous	 excessive or indicative of an improper exercise of discretion; but at the same time	 the Court must impose some limitations on itself in the exercise of this broad power. In dealing with a sentence which has been made the subject of an appeal	 the Court will interfere with a 135 sentence only where it is 'erroneous in principle '. The question	 therefore	 in each case is whether there is an 'error of principle ' involved. The Court has the duty to see that on the particular facts and circumstances of each case the punishment fits the crime. Mere compassionate sentiments of a humane feeling cannot be a sufficient reason for not confirming a sentence of death but altering it into a sentence of imprisonment for life. In awarding sentence	 the Court must	 as it should	 concern itself with justice	 that is	 with unswerving obedience to established law. It is	 and must be	 also concerned with the probable effect of its sentence both on the general public and the culprit. In the three cases before us	 there were 'special reasons ' within the meaning of section 354	 sub section (3) of the Code of Criminal Procedure	 1973 for the passing of the death sentence in each and	 therefore	 the High Courts were justified in confirming the death sentence passed under section 368(a) of the Code. Indeed	 they are illustrative of the rare type of cases	 that is	 first degree murders	 where a death sentence is usually awarded in any civilised country. These were cases of diabolical	 cold blooded brutal murders of innocent persons	 that is	 first degree murders of extreme brutality or depravity. The inhumanity of some of these offenders defies belief. I had the advantage of reading the judgment as originally prepared by my learned brother Krishna Iyer J.	 which	 by defining the class of cases in which a death sentence may be passed upon conviction of a person for having committed an offence of murder punishable under section 302 of the Indian Penal Code	 1860	 and by putting a restrictive construction on the words "special reasons" appearing in section 354	 sub section (3) of the Code of Criminal Procedure	 1973	 does	 in my opinion	 virtually abolish the death sentence. I was	 therefore	 constrained to write this dissenting opinion	 as it is difficult to share the views of my learned brother Krishna Iyer J. He has now completely revised his draft judgment in which he has endeavoured to meet my point of view	 and I have had the advantage of reading it. But I see no particular reason to change my views on the subject or to re write or revise my dissenting opinion as the matter essentially involves a question of principle. My learned brother Krishna Iyer J. pleads for abolition of the death penalty	 in accordance with the Stockholm Declaration of the Amnesty International. He believes that the death penalty is not only physically but psychologically "brutal"	 referring to the lengthy period between sentencing and execution as a "lingering death". He recalls the names of many patriots who faced the firing squad or died by the hangmen 's 136 noose	 in the cause of the country 's freedom	 and pleads that it is the duty of the State to protect the life of all persons without exception. He asserts that by its application	 the death penalty contradicts the very sanctity of life which all human society claims to hold among the highest values. He tells us that almost all civilised countries have abolished it as a symbol of their respect for human life	 and expresses deep anguish that we	 in our country	 still cling to it with little regard to the basic rights of the man. I fully reciprocate the feelings of my learned brother Krishna Iyer J. in so far as he speaks of the barbarity involved in killing of patriots who have sacrificed their lives in the country 's struggle for freedom. The citizen 's right to life and personal liberty are guaranteed by Article 21 of the Constitution irrespective of his political beliefs	 class	 creed or religion. The Constitution has	 by Article 21 itself forged certain procedural safeguards for protection to the citizen of his life and personal liberty. The idealistic considerations as to the inherent worth and dignity of man is a fundamental and pervasive theme of the Constitution	 to guard against the execution of a citizen for his political beliefs. 1	 however	 must enter a dissent when my learned brother Krishna Iyer J. tries to equate a patriot with an ordinary criminal. The humanistic approach should not obscure our sense of realities. When a man commits a crime against the society by committing a diabolical	 cold blooded	 pre planned murder	 of an innocent person the brutality of which shocks the conscience of the Court	 he must face the consequences of his act. Such a person forfeits his right to life. The main thrust of his judgment is the decision of the Supreme Court of the United States of America in Furman vs Georgia am afraid	 Furman no longer holds the field even in the United States. I shall deal with this aspect in detail at a later stage. The constitutionality of the death sentence provided for the offence of murder under section 302 of the Indian Penal Code is not before the Court. I fail to appreciate how can we say that imposition of death penalty	 except in the classes of cases indicated by my learned brother	 would be violative of Articles 14	 19 and 21 of the Constitution. The question really does not arise for our consideration. In Jagmohan Singh vs State of U.P. this Court rejected the contention that capital punishment for an offence of murder punishable under section 302 infringes Article 19 of the Constitution in as much as it could not be said that such punishment was unreasonable or not required in public interest. It fur 137 ther held that section 302 was not violative of Article 14 as it did not suffer by the vice of excessive delegation of legislative functions	 merely because it does not provide for the cases in which a Judge should sentence the accused to death and the cases in which he should sentence him to life imprisonment. It was observed that the exercise of judicial discretion in the matter of fixing the degree of punishment was based on well recognised principles and on the final analysis	 the safest possible safeguard for the accused. Nor it could be said that section 302 confers uncontrolled and unguided discretion to Judges in the matter of sentence and is	 therefore	 hit by Article 14. The Court further held that section 302 did not contravene Article 21 of the Constitution insofar as the trial was held as per provisions of the Code of Criminal Procedure 1973 and the Evidence Act 1872 which were undoubtedly part of the procedure established by law. I	 therefore	 take it that the opinion of my learned colleague that imposition of a death sentence in a case outside the categories indicated would be constitutionally invalid	 is merely an expression of his personal views. As Judges we are not concerned with the morals or ethics of a punishment. It is but our duty to administer the law as it is and not to say what it should be. It is not the intention of this Court to curtail the scope of the death sentence under section 302 by a process of judicial construction inspired by our personal views. The question whether the scope of the death sentence should be curtailed or not	 is one for the Parliament to decide. The matter is essentially of political expediency and	 as such	 it is the concern of statesmen and	 therefore	 properly the domain of the legislature	 not the judiciary Two propositions	 I think	 can be stated at the very outset: (1) It is constitutionally and legally impermissible for this Court while hearing an appeal by special leave under article 136 of the Constitution	 on a question of sentence	 to re structure section 302 of the Indian Penal Code	 1860 or section 354	 sub section (3) of the Code of Criminal Procedure	 1973	 so as to limit the scope of the sentence of death provided for the offence of murder under section 302. (2) It is also not legally permissible for this Court while hearing an appeal in a particular case where capital sentence is imposed	 to define the expression "special reasons" occurring in sub section (3) of section 354 of the Code	 in such a manner	 by a process of judicial interpretation	 which virtually has the effect of abolishing the death sentence. 138 Section 302 of the Indian Penal Code	 1860	 provides: "Whoever commits murder shall be punished with death	 or imprisonment for life	 and shall also be liable to fine" Sub section (3) of section 354 of the Code of Criminal Procedure	 1973	 enacts: "When the conviction is for an offence punishable with death or	 in the alternative	 with imprisonment for life or imprisonment for a term of years	 the judgment shall state the reasons for the sentence awarded	 and	 in the case of sentence of death	 the special reasons for such sentence." The question of abolition of capital punishment is a difficult and controversial subject	 long and hotly debated and it has evoked	 during the past two centuries strong conflicting views. Opinion as to whether the death penalty is necessary in order to prevent an outraged community from taking the law into its own hands has been sharply divided. Immanual Kant in his 'Philosophy of Law '	 in upholding the death penalty observes: "It is better that one man should die than the whole people should perish for if justice and righteousness perish	 human life could no longer have any value in the world." "Even if a Civilised Society resolve to dissolve itself with the consent of all its members as might be supposed in the case of People inhabiting an island resolve to separate and scatter itself throughout the world the last murderer lying in the prison ought to be executed before the resolution is carried out". This ought to be done in order that everyone may realise the dessert of his deeds." Montesquieu in L 'Esprit des Lois regarded the death penalty as repugnant	 but necessary "the remedy of a sick society". John Stuart Mill	 made a very strong speech in the House of Commons(1) advocating the use of the death penalty when it was applied to the most heinous cases. Attacking the argument that this punishment was not a deterrent to crime	 he said: "As for what is called the failure of death sentence	 who is able to judge that. We partly know who those are whom it has not deterred; but who is there who knows whom it has deterred	 or how many human beings saved who should have lived. " 139 Mill felt that the probability of an innocent person 's suffering the death penalty was very slight indeed. Judges and juries would let the guilty escape before the innocent would suffer. If there were the slightest doubt of a man 's innocence the death sentence would not be imposed or carried out. Sir Henry Maine	 the English legal historian	 observed that punishment evolved from social necessity. The concept of punishment as a form of expiation or atonement reaches far back into human nature as well as into human history. The notion that the threat of punishment by the State will restrain the potential criminal is one of the most commonly accepted justifications for it. The idea has a philosophical basis in the utilitarians ' concept of the rational man acting upon a deliberate calculation of possible losses and gains. If men choose rationally among possible future courses of action then surely the likelihood of a criminal course of action could be decreased by attaching to it a quick	 certain and commensurate penalty. The value of capital punishment	 as an aspect of deterrence	 was perhaps most strongly put forward and very clearly stated by the great jurist	 Sir James Fitzjames Stephen more than a hundred years ago: "No other punishment deters man so effectually from committing crimes as the punishment of death. This is one of those propositions which it is difficult to prove	 simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it	 but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result. No one goes to certain inevitable death except by compulsion. Put the matter the other way. Was there ever yet a criminal who	 when sentenced to death and brought out to die	 would refuse the offer of commutation of his sentence for the severest secondary punishment ? Surely not. Why is this ? It can only be because 'All that a man has will he give for his life '. In any secondary punishment	 however terrible	 there is hope; but death is death; its terrors cannot be described more forcibly. " Supporters of capital punishment commonly maintain that it has a uniquely deterrent force which no other form of punishment has or 140 could have. The arguments adduced both in support of this proposition and against it fall into two categories. The first consists of what we may call the 'common sense argument ' from human nature applicable particularly to certain kinds of murders and certain kinds of murderers. This	 a priori argument proceeds on the view that by doing so	 the law helps to foster in the community a special abhorrence of murder as "a crime of crimes". By reserving the death penalty for murder the criminal law stigmatises the gravest crime by the gravest punishment	 so that the element of retribution merges into that of deterrence. The second justifies the ethics of capital punishment. Whatever be the ultimate justification for the punishment	 the law cannot ignore the public demand for retribution which heinous crimes undoubtedly provoke; it would be generally agreed that	 though reform of the criminal law ought sometimes to give a lead to public opinion	 it is dangerous to move too far in advance of it. The movement to abolish death penalty started with the humanitarian doctrine evolved by Marchese De Cesars Bonesana Beccaria	 Italian publicist. In 1764	 Bonesana published the famous little treaties Dei Delitti e della Pen. The French translation contained anonymous preface by Voltaire. In the preface to this book first appeared the phrase "the greatest happiness of the greatest number". It advocated the prevention of crime rather than punishment	 and promptness in punishment	 where punishment was inevitable; above all it condemned confiscation	 capital punishment	 and torture. Beccaria 's ideas directly influenced the reforming activities of many social thinkers and philosophers. This represented a school of doctrine	 born of the new humanitarian impulse of the Eighteenth Century with which Rousseau	 Voltaire and Montesquieu in France and Bentham in England were associated	 which came afterwards to be known as the classical school. Moved by compassionate sentiment of a humane feeling	 Beccaria asserted that all capital punishment is wrong in itself and unjust. He maintained that since man was not his own creator	 he did not have the right to destroy human life	 either individually or collectively. It is the ultimate cruel	 inhuman and degrading punishment	 and violates the right to life. Its basic value	 he affirmed	 is its incapacitative effect. Beccaria claimed capital punishment was justified in only two instances	 first if an execution would prevent a revolution against a popularly established government	 and secondly	 if an execution was the only way to deter others from committing a crime. 141 The policy of retribution is justified and sustained by an ethical philosophy which regards punishment as an integral and inviolative element in wrong doing	 as a moral necessity. This doctrine has been consistently maintained by intuitive or idealistic philosophers from Plato to Thomas Aquinas and from Kant to T. H. Green and his disciples. The deterrent effect of punishment has also been claimed by adherents of this school but its widespread adoption as a policy has probably been due more to the influence of the utilitarian philosophy of Bentham	 Paley	 John Stuart Mill and Herbert Spencer	 which makes the welfare of the society "the greatest good of the greatest number"	 the aim of all moral activity. It is this utilitarian philosophy which is now in the ascendent in penal legislation and which governs the view of most modern penologists. It still survives in the death penalty for murder and in the drastic penalties imposed for rape and other crimes which are peculiarly offensive to the moral sentiment as to the sense of security of the community. Nearly everywhere	 in the more recent stages of social development	 this motive has been supplemented	 but never wholly supplanted	 by an unquestioning faith in the deterrent effect on potential offenders of exemplary	 i.e.	 drastic	 punishment	 inflicted on actual offenders which	 in practice if not in theory	 comes to much the same thing. The doctrine of the "individualisation of punishment"	 that is to say of the punishment of the individual rather than the crime committed by him	 which is of commanding importance in present day penology	 is only a development of the neo classical school of the revolutionary period in France	 which modified Beccaria 's rigorous doctrine by insisting on the recognition of the varying degrees of moral	 and therefore	 legal responsibility. Its fundamental doctrine is that the criminal is doomed by his inherited traits to a criminal career and is	 therefore	 a wholly irresponsible actor. Society must	 of course	 protect itself against him	 but to punish him as if he were a free moral agent is as irrational as it is unethical. In his 'Introduction to Principles of Morals and Legislation '	 the great work in which the English philosopher and jurist	 Jeremy Bentham was engaged for many years	 was published in 1789. Mankind	 he said	 was governed by two sovereign motives pain and pleasure	 and the principle of utility recognised this subjection. The object of all legislation must be the "greatest happiness of the greatest number". On the legal side	 he deduced from the principle of utility that since all punishment is itself evil it ought only to be admitted "so far as it promises to exclude some greater evil". 142 The English social reformer	 Sir Samuel Romilly devoted himself primarily to reform the criminal law of England	 then at once cruel and illogical	 by attempting to influence Parliament to pass three Bills designed to repeal the death penalty for theft. By statute law innumerable offences were punishable with death in England	 but	 as wholesale execution would be impossible	 the larger number of those convicted and sentenced to death at every assizes were respited	 after having heard the sentence of death solemnly passed upon them. This led to many acts of injustice	 as the lives of convicts depended on the caprice of the Judges	 while	 at the same time it made the whole system of punishment and of the criminal law ridiculous. In 1808 Romilly managed to repeal the Elizabethian statute	 which made it a capital offence to steal from the person. In the following year	 three equally sanguinary statutes were thrown out of the House of Lords under the influence of Lord Ellenborough. Year after year the same influence prevailed	 and Romilly saw his bills rejected; but his patient efforts and his eloquence ensured victory eventually for his cause by opening the eyes of Englishmen to the barbarity of their criminal law. In spite of the efforts which Romilly made to procure the abolition of the death penalty in many cases	 it should be noted	 however	 that he was not an "abolitionist" in the sense of the term today. All punishment properly implies moral accountability. It is related to injury and not only to damage or danger	 however great. Capital punishment does so in an eminent degree. It is directed against one who is ex hypothesi an inhuman brute	 i.e. it is imposed simply to eliminate one who is held to have become	 irretrievably	 a liability or a menace to society. As Aristotle put it	 just retribution consists not in simple but in proportionate retaliation	 that is	 in receiving in return for a wrongful act not the same thing but its equivalent	 and	 what this is	 can only be estimated if the whole context is taken into account. It may be argued that murder for instance	 as the one crime which is quite irrevocable	 as justly met by the one punishment which is equally irrevocable	 a unique form of punishment for a unique form of crime. To reduce its punishment to something of the same order as other punishments	 is to weaken the abhorrence which it should express and diffuse. On this showing an execution expresses absolute condemnation. It both satisfies and educates the public conscience; for those in authority thus deepen in themselves and diffuse throughout the community their sense of "the wickedness of wickedness	 the criminality of crime". It is an outward and visible sign of the utmost imaginable disgrace. The death 143 penalty has signified shame and infamy and has generally been understood to do so; and all this is expressed in symbolic action of a kind that is both spontaneous and calculated to arrest attention. If the appeal of capital punishment were merely to fear of death	 it would be a very inefficient protector of society. In civilized society and in peacetime	 government relies for obedience more on its moral prestige than on violent repression of crime. Punishment only protects life effectively if it produces in possible murderers	 not only fear of the consequences of committing murder	 but a horrified recoil from the thing itself. It can only achieve this	 more ambitious	 task	 if sentence of death is felt to embody society 's strongest condemnation of murder and keenest sense of its intolerable wickedness. It is not by the fear of death but by exciting in the community a sentiment of horror against any particular act	 that we can hope to deter offenders from committing it. The Royal Commission sucinctly explained the normal character of capital punishment thus: "by building up in the community	 over a long period of time	 a deep feeling of peculiar abhorrence for the crime of murder. " The criminality of a crime consists not only in the criminal act	 but in what that signifies. Its immediately apparent features	 the obvious damage to person or property or to public security	 are symptoms of a deeper disorder. It betokens	 and it fosters	 an attitude in man to man	 of reckless selfishness	 deceit or malice	 which is incompatible in the long run with any decent social life. In any advanced society it is	 in part at least	 on account of this wider character	 less easily discerned	 that the graver offences are punished. Also punishment like crime has a dual character. The penalty which the convicted murderer incurs is not simply death	 but death in disgrace and death as a disgrace. In so far as capital punishment is a threat	 the threat consists not only in death but in infamy. Any theory which ignores this characteristic is certainly defective. For a long time the problem of capital punishment was regarded as a purely academic question. Everything that could be said appear to have been said on a question which Beccaria had brilliantly brought to public notice in the second half of the Eighteenth Century	 but which had been exhausted by subsequent controversy. Punishment inflicted by the State in response to a violation of the criminal law 144 has been justified in various ways. It has been seen as society 's vengeance upon the criminal as atonement by the wrong doer	 as a means of deterring other criminals	 as protection for the law abiding and as a way of rehabilitating the criminal. The individual who has inflicted harm on another	 runs the revenge argument	 should be made to suffer in return; for only an act of vengeance can undo the harm that has been done and assuage the suffering of the victim. As against this	 some social reformers have maintained that punishment ought to be decent to transform the values and attitudes of the criminal so that he no longer wishes to commit illegal acts. The problem	 of course	 has been to discover how to do it. Theories of rehabilitation are largely speculative	 since there is lack of scientific evidence to support them. Nevertheless	 it has been influential in the development of modern penology. In England	 during the Nineteenth Century	 Disraeli and Gladstone	 the leading politicians in the country	 took no part in the movement to abolish the death penalty. Leadership in this crusade fell to lesser men	 and the abolitionists formed a distinct minority. The majority in the House of Commons evidently felt	 as Sir John Holkar	 the Attorney General felt	 that criminals were deterred from adding deliberate murder to their other crimes by the fear of the death penalty. In the period between the first and second world wars	 however	 the emergence of authoritarian systems of penal law raised once more the problem of capital punishment in a particularly acute manner. At the end of the second world war	 there was a renewed upsurge of this humanitarian tendency which	 like the desire to safeguard human rights and human dignity	 had been the mainspring of the movement for the abolition of the death penalty. Several attempts were made to break the parliamentary fortress but without any success. Very little was actually accomplished by the abolitionists in Parliament till after the second world war	 when the Labour Government came to power. In between 1949 and 1953 the Royal Commission on Capital Punishment carried out an exhaustive inquiry. The Royal Commission made a study of this complex and many sided task. It held its inquiries not only in Great Britain but also in the United States and several European countries and heard evidence from every possible source. It listened to an impressive array of witnesses. In addition to all this	 information was collected from Commonwealth countries and several other European countries. Its 145 result is reflected in the Royal Commission Report on Capital Punishment which presents a comprehensive and dispassionate picture of the whole subject. The Commission was debarred by their terms of reference from considering the question of abolition of capital punishment	 but in the course of their investigation they naturally accumulated a good deal of information which is just as relevant to this issue as to the question of limiting the scope of capital punishment. The report contains a good deal of material on the "Deterrent Value of Capital Punishment". It is evident from the report that some of the most distinguished judicial witnesses including Lord Goddard	 the Lord Chief Justice of England	 Lord Denning	 the Master of Rolls	 and some very experienced Judges like Mr. Justice Humphreys	 Sir John Beaumont	 Mr. Justice Byrne	 were firmly of the view that the capital punishment must be retained for the protection of the society. They went to the extent of expressing their strong disapprobation of the free use of prerogative as being an interference by the Executive with the Judiciary and argued that the exercise of the power should be narrowly confined. As a justification for retention of death penalty	 some of these distinguished Judges put forth the principle of retribution	 and the others placed greater importance on deterrence. There was	 however	 general agreement that justification for the capital sentence	 as for other salient features of the penal system must be sought in the protection of the society and that alone. The punishment of death	 said Lord Denning to the Royal Commission	 should reflect adequately the revulsion felt for the gravest of crimes by the great majority of citizens. But	 in saying this	 he implied that legislators and Judges share this revulsion themselves; otherwise indeed their action would be morally indefensible. Their aim then should be	 not only to strike terror nor even to awaken popular indignation in a direction convenient to Government. It would be to arouse in all and sundry their own indignant repudiation of a wicked act and	 at the same time	 to deepen it in themselves. In this vein	 sentence of death has been pronounced	 carried out and acclaimed	 with stern satisfaction. This principle of action is still avowed in high places	 and	 I believe	 it is semi consciously at work more often than it is avowed	 for it is said that otherwise	 the conscience of the community would be revolted if the criminal were allowed to live. In the same vein	 Lord Chief Justice Goddard said in 1948: 146 "The public conscience will not tolerate that persons who deliberately condemn others to painful	 and it may be lingering	 deaths should be allowed to live . Some of these bestial murderers should be destroyed. " The use of capital punishment has declined in recent times	 although it is still permitted by law	 as in this country	 for various kinds of offences like treason	 murder etc. The issue of abolishing it has aroused much controversy. The advocates of capital punishment claim it as a necessary deterrent to crime and relatively painless if done properly. Even where it has been legally retained	 as here	 capital punishment is now seldom employed except in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience. Indeed	 the death penalty satisfies the society 's retributive goals and is still presumed to be a deterrent to potential offenders. Of the three purposes commonly assigned to punishment retribution	 deterrence and reformation deterrence is generally held to be the most important	 although the continuing public demand for retribution cannot be ignored. Prima facie	 the death sentence is likely to have a stronger effect as a deterrent upon normal human beings than any other form of punishment. There is some evidence that this is	 in fact	 so and also that abolition may be followed by an increase in homicides and crimes of violence. In brief	 people are believed to refrain from crime because they fear punishment. Since people fear death more than anything else the death penalty is the most effective deterrent. In Britain	 following the Report of the Royal Commission on Capital Punishment	 the Homicide Act	 1957 was enacted due to the growing pressure of public opinion to mitigate the rigour of the criminal law. (1=6) It brought about a division of criminal homicide into degrees of murder. It resulted in the establishment of a distinction between capital and non capital murders. It not only eliminated long standing iniquities and rigidities in the law of murder such as the doctrine of "constructive malice"	 but also brought the law into accord with modern criminological thoughts by the importation of the doctrine of "diminished responsibility". 147 By section 7 the Act abolished the liability to suffer the death penalty on conviction of murder and substituted the sentence of imprisonment for life by section 9	 sub section (1) except in cases of first degree murders falling within section 5 or section 6. Section 5 reserved the death penalty for five classes of first degree murders	 namely: (i) any murder done in the course or furtherance of theft; (ii) any murder by shooting or by causing an explosion; (iii)any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest	 or of effecting or assisting an escape or rescue from legal custody; (iv) any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting; and (v) in the case of a person who was a prisoner at the time when he did or was a party to the murder	 any murder of a prison officer acting in the execution of his duty or of a person assisting a prison officer so acting. Sub section (2) of section 5 provided for death penalty on the principal assailant and not his accessories before the fact	 where a group of persons made a murderous assault causing grievous bodily hurt resulting in death. The distinction drawn in felonies between principals in the first and second degree and accessories before the fact have since been abolished by virtue of the Criminal Law Act 1967	 section 1	 and all these participants have to be punished in accordance with the Accessories and Abettors Act 1861. Section 6 provided the death penalty for repeated murders. The cases in which the death penalty was retained were those where	 in the view of the Government	 murder was most dangerous to the preservation of law and order	 and where the death penalty was likely to be a particularly effective deterrent. The death penalty for murder was thereafter temporarily abolished for a period of five years	 as an experimental measure by the Murder (Abolition of Death Penalty) Act 1965. This Act was to expire on July 31	 1970 but was made permanent by resolution of both Houses of Parliament. The punishment for murder in Britain is now imprisonment for life by section 1	 sub section (1) of the Murder (Abolition of Death Penalty) Act 148 1965. On sentencing any person convicted of murder to imprisonment for life	 the Court may at the same time declares a period which it recommends to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State orders the release of that person on licence under section 27 of the Prison Act 1952. In R. vs Flemming it has been suggested that no such recommendation should be for a period of less than twelve years. It must	 however	 be observed that in Britain a sentence of death can still and only be awarded for high treason (Treason Act 1814) section 1; piracy with violence (Piracy Act 1837) section 2; setting fire to the Queen 's ships	 arsenals etc. (Dockyards etc. Protection Act 1772) section 1. When a person is convicted of treason	 sentence of death must be pronounced	 but in case of piracy with violence and setting fire to the Queen 's ships	 arsenals	 etc.	 it may be merely recorded. Sentence of death cannot	 however	 be pronounced on or recorded against an expectant mother [Sentence of Death (Expectant Mothers) Act 1931] section 1	 or against a person who was under the age of eighteen when the offence was committed (Children and Young Persons Act 1933) section 53 (1). The successful campaign to abolish the death penalty in Britain has been achieved in a comparatively short period of time by no more than a handful ardent penal reformers like Sydney Silverman who carried out the unfinished work of Romilly and other reformers	 pertinacious in their lobbying and propaganda	 in the face of majority opinion favouring retention of an admittedly barbaric but	 to that majority	 necessary penal instrument. If the final debates were protracted Silverman 's private members ' Bill (with invaluable Legislative time given by the Government) was introduced on December 4	 1964	 and reached the Statute Book only on November 2	 1965 the history of the campaign is a remarkable testament to British democracy which can convert convinced minority opinion into progressive legislative action Due to an increase in the incidence of criminal behaviour	 and steady rise in the volume of reported crime	 there is a genuine public concern in Britain for re assessment of the penal policy of the Government. 149 D.A. Thomas in his article "Development in Sentencing 1964 1973" observes: "As a society	 we have made inconsistent demands on our official system of social control expecting greater security from violence	 disorder and depreciation and simultaneously requiring that penal sanctions become less rigorous and more adopted to the individual offender. " The learned author proceeds to say: "The provisions of the Murder (Abolition of Death Penalty) Act 1965 provides a simple illustration. Taken in isolation	 they provide that a person convicted of murder shall be sentenced to life imprisonment	 and the judge passing such a sentence may make a recommendation that a specified minimum period should elapse before the offenders may be released on licence. The mandatory life sentence	 part of the political price of the abolition of the death penalty	 cannot be defended on any rational grounds. " And then concludes: "In assessing the future trend of penal policy in this country	 it is probably wise to bear in mind that the problems facing the criminal justice system are unlikely to diminish during the next decade of their own accord things will almost certainly become worse rather than better. There seems to be no reason to suppose that the relatively steady rate of increase in the volume of reported crime over the last ten years will not continue." The two recent decisions of the Privy Council in Eaton Baker vs The Queen and Michael de Freitas vs George Ramoutar Benny are completely destructive of the theory that the death penalty is per se cruel and unusual punishment	 and (2) alternatively	 the inordinate delay in carrying it out	 makes it so. In Eaton Baker 's case the appeal was on a question of sentence. The issue was whether the Court of Appeal of Jamaica was right in sentencing to death the two youngmen who when they committed the murder were under the age of eighteen years	 but when they were convicted of the offence and sentenced to death	 had both attained the age of 18 years. The mandatory sentence of death upon conviction for murder is imposed 150 by section 2 of the Offences against the Person Act 1925. The exception on account of youth is contained in section 29(1) of the Juveniles Law which interdicts that a sentence of death shall not be pronounced on or recorded against a person under the age of 18 years. The Judicial Committee while holding that the statutory exemption from death penalty under section 29(1) of the Juveniles Law was not applicable	 observed that the time for ascertaining whether the appellants were to be treated as Juveniles was the date on which the sentence was passed and not the date of the offence. As to the constitutional issue	 the Judicial Committee held that when a person was held guilty of a charge of murder	 the death sentence passed on him cannot be treated as a contravention of section 20(7) of the Constitution of Jamaica	 stating: "One 's opinion as to whether the consequences of giving effect to the sub section would be irrational or unjust is inevitably coloured by whether one starts with the belief that capital punishment should be abolished for all offences except	 perhaps	 for treason a view accepted by the legislature	 if not by public opinion in general	 in the United Kingdom; or with the contrary belief that capital punishment is normally the appropriate penalty for murder a view which the continuance in force of section 2 of the Offences against the Person Law suggests is accepted by the legislature in Jamaica." (Emphasis supplied). In de Freitas case the Privy Council confirmed the sentence of death passed by the Court of Appeal of Trinidad and Tobago	 and held that there was no violation of the human rights and fundamental freedoms guaranteed under sections 1 and 2 of the Constitution of Trinidad and Tobago inasmuch as the sentence of death was passed according to the "due process of law". In repelling the alternative argument based upon delay	 it observed that " the delay was of the appellant 's own making" and he could not put forth this as a ground for commutation of the sentence of death. It stated: "It is not contended that the executive infringed the appellant 's constitutional rights by refraining from executing him while there were still pending legal proceedings that he himself had instituted to prevent this execution. " There was evidence that prior to independence	 the normal period spent in condemned cell by the prisoner before execution was five months and that this practice was sufficient to give rise to an 'unwritten rule of law ' in force at the commencement of the Constitution. The contention was that the executive was	 therefore	 bound to so organise the procedure for carrying out the death sentence that the 151 average lapse of time is not more than five months	 and the carrying out of the death sentence beyond the period was incompatible with the right of the individual under section 1 (a) of the Constitution not to be deprived of life "execpt by due process of law" because it involves the imposition of "cruel and unusual punishment" within the meaning of section 2	(b). The Judicial Committee rejected the contention saying: "This contention in their Lordships ' view needs only to be stated to be rejected. Not only does it involve attributing to the expression "unwritten rule of law" in section 105(1) of the Constitution a meaning which it is incapable of bearing	 but it conflicts with the very concept of the nature of law. " That takes us to the decision of the Supreme Court of the United States of America in Furman vs Georgia (supra) in which my learned brother Krishna Iyer J. strongly relies. There	 the question was whether the death penalty at least as generally practised in the United States	 per se	 was 'cruel and unusual ' because the imposition of capital punishment "does not comport with human dignity" or because it was "morally unacceptable" and "excessive" and thus violative of the Eighth Amendment. In the United States of America	 the death penalty has paradoxcally existed more or less harmoniously with humane theories of criminal justice for over two hundred years. The Eighth Amendment prohibits 'cruel and unusual punishment '. The Eighth Amendment 's ban on cruel and unusual punishment has raised some very difficult moral issues. The Supreme Court applied various standards in interpreting the provision. In Trop vs Dulles the Court by a majority of five to four	 refused to consider "the death penalty as an index of the constitutional limit on punishment"	 stating: "Whatever the arguments may be against capital punishment. the death penalty has been employed throughout our history and	 in a day when it is still widely accepted	 it cannot be said to violate the constitutional concept or cruelty." Chief Justice Warren	 speaking for Mr. Justice Black	 Mr. Justice Douglas and Mr. Justice Whittakar	 asserted that: "this Court has had little occasion to give precise content to the Eighth Amendment"	 that it content is not static	 but 152 "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." This amendment whose "basic concept is nothing less than the dignity of man" guarantees "the principle of civilised treatment. " There began concerted legal attacks on the constitutionality of capital punishment in the 1960s	 stimulated in part by the fact that those receiving death sentences were disproportionately Blacks. The issue as to the constitutionality of the death penalty in a State usually arose in the Supreme Court of the United States on procedural grounds	 that is	 on the question of fairness of the procedural aspect and its application	 viz.	 the practice under which state statutes left a jury to mote out the death penalty at its discretion	 with no standards of any sort to guide them	 or the application of the penalty without judicial standards. In McGoutha vs California the Supreme Court rejected the contention holding that the absence of any guidelines was not a violation of "due process". Mr. Justice Harlan thought it would be impossible to draft statutory standards for this purpose	 saying: "To identify before the fact these characteristics of criminal homicides and their perpetrators which call for the death penalty	 and to express these characteristics in language which can be fairly understood and applied by the sentencing authority	 appear to be tasks which are beyond present human ability." In Furman vs Georgia	 the Court by a majority of five to four ultimately held that capital punishment	 at least as generally administered	 did violate the Eighth Amendment. It held that imposition of the death penalty in the three cases	 one for murder and two for rape	 constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Court issued a brief per curiam order	 followed by substantial statements by every member of the Court. The judgment in the case was reversed and the cases remanded for further proceedings. Each of the five majority Justices and four dissenters wrote a separate opinion	 supporting his position. The five Justices in the majority each wrote a concurring opinion which approached the matter from a different angle so that clear categorisation is impossible. It can thus be seen that the multiple opinions did not rule out altogether re imposition of the death penalty in the future provided there was legislative structuring of a permissible system 153 providing for sufficient procedural safeguards. This is exactly what has happened in the United States where the death penalty has been re imposed and the judicial approach stands re oriented. Broadly stated	 Mr. Justice Douglas	 Mr. Justice Stewart and Mr. Justice White held that the death Penalty as imposed	 is arbitrarily and infrequently meted out	 in violation of the Eighth and the Fourteenth Amendments. They took an analytic and empirical approach	 appraising the practice under the Eighth Amendment in the light of due process and equal protection. Their concern was whether the death penalty was evenly applied	 and of course they found that it was not. This is reflected in the opinion of Mr. Justice Douglas who held that the death penalty was cruel and unusual because applied irregularly and "selectively to minorities whose members are few	 who are outcasts of society	 and who are unpopular	 but whom society is willing to see suffer though it would not countenance general application of the same penalty across the boards" Mr. Justice Stewart 's comment was: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For	 of all the people convicted of rapes and murders in 1967 and 1968	 many just as reprehensible as these	 the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed." Mr. Justice White conceded that the death penalty	 while cruel in "the dictionary sense"	 would nevertheless be justified if it served "social ends". But he did not believe "that society 's need" for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient. Mr. Justice Brennan and Mr. Justice Marshall took a normative approach. They advocated the total abolition of the death penalty because it is in all cases violative of the Eighth Amendment cruel and unusual punishment clause. For them	 the Eighth Amendment posed a core question of values; they were concerned less with fairness and equality and more with mercy and charity. For Mr. Justice Brennan	 "the primary principle. is that a punishment must not by its severity be degrading to human dignity". Mr. Justice Marshall	 in by far the longest opinion of the day pleaded for an humanistic approach. His impassioned conclusion was that ending the death sentence would recognise "the humanity of our fellow beings" and achieve "a major milestone in the long road up from barbarism". 154 The opinions of the four dissenting Justices were as important as the majority statements because any subsequent challenges on Furman would incorporate their reasoning. Mr. Justice Blackman and Mr. Justice Rehnquist	 who are advocates of strict judicial conservation	 felt that the matter was essentially political	 and properly the domain of the legislature	 not the judiciary. Chief Justice Burger	 admitting that since the ruling a Trop vs Dulles (supra) in 1958	 it is necessary to evaluate a challenged punishment in terms of the "evolving standards of decency. of a maturing society"	 felt nonetheless that there is no judicially significant public opposition to capital punishment in the United States. Pointing out that the decision rejecting the death penalty was essentially based on procedural grounds	 as the majority agreed that the arbitrary infliction of the death penalty was unconstitutional	 Burger contends that the Eighth Amendment does not deal with procedure	 and with only the substantive nature of the punishment in question. He believes that the imposition of a mandatory death penalty for certain offences would not be invalidated by the holding in this case because a mandatory penalty could not be arbitrily meted out. Mr. Justice Powell dissented by establishing that the constitutionality of the death penalty is supported by four factors	 viz.	 (i) the references to capital punishment in the Constitution	 (ii) the past Supreme Court decisions on the death penalty	 (iii) the limitation of judicial restraint	 and (iv) the doctrine of separation of powers. He found that the evidence of the petitioners fell short of satisfying their burdens of persuasion with respect to these factors. Due to the ambiguity of the Furman decision	 it is fortunate that the Supreme Court gave further indication of its intentions regarding the death penalty in subsequent decisions. But Furman was not determinative of the issue on the merits	 namely	 the constitutionality of the penalty because it violates the Eighth Amendment cruel and unusual punishment. It was widely assumed that the Court had not declared capital punishment unconstitutional per se but only its unpredictable and fortuitous use. Since the Furman decision	 the legislatures of thirty five states in the United States acted to tighten up the laws under which the death penalty was to be imposed. They took two different approaches. Some State including Georgia	 Florida and Texas	 established new procedures for capital cases requiring sentencing judges and juries to 155 consider certain specified aggravating or mitigating circumstances of the crime and the offender. There was a bifurcated trial with pre sentencing	 hearing. Courts of Appeal were given broader authority to decide whether the death penalty was fair in the light of the sentences for similar offences These laws were intended to redress the arbitrariness and racial prejudices renounced in Furman. But the other States	 including North Carolina	 Louisiana and Oklahoma sought to meet the Furman objections by removing all flexibility from the sentencing process	 though limiting the offences for which the death sentence could be imposed. Anyone found guilty of the specified offences was to be sentenced to death automatically. The constitutionality of the sentences imposed under such procedures has been upheld by five State Supreme Courts. On July 2	 1976	 the Supreme Court of the United States delivered the judgment it had postponed a year earlier. It handed down five opinions dealing with the death penalty. Three of these were concerned with the mandatory sentence of death. All involved the crime of murder. The five cases were: Gregg vs Georgia	 Proffitt v Florida	 Jurek vs Texas Woodson vs North Carolina	 and Roberts vs Louisiana. The issue in the three cases dealing with discretionary sentencing (Gregg	 Proffitt and Jurek) was whether imposition of the sentence of death for the crime of murder under the laws of the respective states violated the Eighth and Fourteenth Amendments. In all three	 the Court reached the same conclusion	 that the punishment of death did not invariably violate the Constitution. The Court 's reasons in Gregg as to why the death sentence was not a per se violation of the Eighth and Fourteenth amendments were as follows: First	 history and precedent do not support the conclusion that the death sentence is a per se violation. Second	 the evolving standards of decency argument has been substantially undercut in the last four years because a large segment of the enlightened population regards the death penalty as appropriate and necessary	 as seen in the new legislation passed in response to Furman. The Court came to the conclusion that the death penalty was not inherently cruel and unusual. It served two principal social purposes	 156 retribution and deterrence	 and held that the death sentence for the crime of murder was (1) not without justification	 (2) not unconstitutionally severe	 and (3) not invariably disproportionate to the crime. The Court found that Furman mandated	 where discretionary sentencing was used there must be suitable direction and limitation to minimise the risk of wholly arbitrary and capricious action. The bifurcated trial with standards modelled after the Model Penal Code gives juries just such guidance. Therefore	 the concerns of Furman can be met by carefully drafted statutes that ensure sentencing authorities are given adequate information and guidance in making their decision. As a general proposition	 the Court concluded that these concerns were best met by bifurcated proceedings with standards to guided the use of the evidence. I wish to conclude this part of the judgment by quoting Herbert L.A. Hart	 who in his article on "Murder and the Principles of Punishment: England and the United States	 admirably sums up the two points of view: "There are indeed ways of defending and criticising the death penalty which are quite independent of the utilitarian position and of the questions of fact which the utilitarian will consider as crucial. For some people the death penalty is ruled out entirely as something absolutely evil which	 like torture	 should never be used however many lives it might save. Those who take this view find that they are sometimes met by the counter assertion that the death penalty is some thin which morality actually demands	 a uniquely appropriate means of retribution or "reprobation" for the worst of crimes	 even if its use adds nothing to the protection of human life. "Here we have two sharply opposed yet similar attitudes: for the one the death penalty is morally excluded; for the other it is moral necessity; but both alike are independent of any question of fact or evidence as to what the use of the death penalty does by way of furthering the protection of society. Argument in support of views as absolute as these can consist only of an invitation	 on the one hand	 to consider in detail the execution of a human being	 and on the other hand	 to consider in detail some awful murder	 and then to await the 157 emergence either of a conviction that the death penalty must never be used or	 alternatively	 that it must never be completely abandoned. " The controversy over capital punishment is not new. Its roots lie deep in human history	 and its battles have been waged on and off on a political level for almost two centuries. It is not necessary for this Court to attempt to analyse the substantive merits of the cases for and against the death penalty for murder. It is in my view	 essentially	 a question for the Parliament to resolve and not for this Court to decide. I feel that it is futile for us to attempt to project our personal views in a matter which lies in the realm of political decision making	 by focussing on a single controversy	 the question of the proper penalty for the crime of murder. The capital punishment controversy falls within the strict limits of 'independent ' parliamentary law making	 and is a typical or representative of the kind of problems that leaders of Parliament face every day. In short	 the case for abolition of the death sentence is political	 not constitutional. The Government carries the responsibility of law and order. That is the first and fundamental duty of any Government. The Executive has the duty of advising the Government of the laws it believes necessary for the national well being. It is the duty of the courts	 including this Court	 to administer the laws as they are. The Law Commission	 in its Thirty fifth Report has dealt with the question of abolition of capital punishment	 of limiting the scope of death sentence under section 302	 and of the mode of execution of the sentence. It sent out questionnaires. Almost all the State Governments	 all High Court Judges	 all the Bar Associations throughout the country	 many distinguished lawyers were in favour of retention of the death sentence. There was	 in fact	 almost complete 'unanimity ' of view on this complex question. The Commission examined a large number of witnesses including many distinguished Judges and lawyers and ultimately was in favour of its retention. It concluded stating that "Having regard to the conditions in India	 to the variety of social upbringing of its inhabitants	 to the disparity of the level of morality and education in the country	 the vastness of its area	 to the diversity of its population and to the paramount need for maintaining law and order	 the country can not risk the abolition of capital punishment. " 158 Indeed	 a distinguished lawyer while giving his evidence before the Joint Committee of the Indian Penal Code Bill thought that the abolition of death sentence would be a dangerous experiment and we should continue to have this form of deterrent punishment till we reach "a certain state of enlightenment". The basic principle of the nineteenth century Indian Penal Code	 said Lord Macauley who drafted it	 is 'the principle of suppressing crime with the smallest possible amount of suffering(1) '. He lays this down as an unassailable axiom rather than as a contention for debate. Section 302 of the Indian Penal Code	 1860 gives the Court a discretion as to the punishment to be imposed for an offence of murder and that discretion has to be exercised between the two alternatives mentioned	 namely	 a sentence of death and a sentence of imprisonment for life. Prior to the amendment of section 367	 sub section (5) of the Code of Criminal Procedure	 1898 by the Criminal Procedure Code (Amendment) Act	 1955 it was a well settled principle that where a person was convicted for an offence of murder	 the Court was normally bound to sentence him to death unless there were extenuating or mitigating circumstances. This rule was stated in Rattanlal 's Law of Crimes	 21st ed.	 p. 813; "The extreme sentence is the normal sentence; the mitigated sentence is the exception. It is not for the Judge to ask him self whether there are reasons for imposing the penalty of death but whether there are reasons for abstaining from doing so The reason probably was that this provision was not more than the restatement of the law as it stood in England at that time	 where till the year 1965 the only penalty for murder was death	 except in two specific cases. The effect of the Criminal Procedure Code (Amendment) Act	 1955	 which repealed section 367	 sub section (5) of the Code with effect from January 1	 1956	 was to restore to the Court the discretion conferred by section 302 to award the appropriate sentence having regard to the attendant circumstances	 including the mitigating circumstances	 if any. This brought the law into conformity with the intentions of the framers of the Code. As regards the death sentence	 far from making it the normal sentence for an offence of murder	 they stated that it ought to be 'sparingly used '. Under section 354	 sub section (3) of the Code of Criminal Procedure	 1973	 the law is now entirely changed. 159 Under section 354	 sub section (3) of the Code of Criminal Procedure	 1973	 the Court is required to state the reasons for a sentence awarded	 and in the case of imposition of a sentence of death and Judge has to record "special reasons" for imposing death sentence. Punishment for murder as a rule should be life imprisonment and death sentence is only an exception. In Balwant Singh 's case	 Ambaram 's case and Sarveshwar Prasad Sharma 's case the Court held that it was neither necessary nor possible to specify the "special reasons" which may justify the passing of death sentence in a given case. It would thus be obvious that it is neither feasible nor legally permissible for this Court to give a definite connotation to the expression "special reasons" occurring in section 354	 sub section (3) of the Code of Criminal Procedure	 1973. It is difficult to put "special reasons" in a straight jacket. Each case must depend on its own particular facts. The question of sentence must	 in my view	 be left to the discretion of the Sessions Judge trying the accused. Under the present Code	 a trial for murder is divided into two stages. There is a bifurcated trial. The first part of the trial is directed solely to the issue of guilt or innocence	 and concludes with the finding of the Sessions Judge on that issue. At the end of the trial when he comes to a conclusion of guilt	 he has to adjourn the case for hearing the accused on the question of sentence. Section 235	 sub section (2) of the Code specifically provides for an opportunity of hearing to the accused on the question of sentence after a verdict of guilt is recorded against him. The burden is upon the prosecution to make out a case for imposition of the extreme penalty. Where a sentence of death is passed	 the Sessions Judge has to make a reference to the High Court under section 366	 sub section (1) of the Code. Under section 367	 sub section (1) if the High Court thinks a further inquiry should be made into	 or additional evidence taken upon	 any point bearing upon the guilt or innocence of the convicted person	 it may make such inquiry or take such evidence itself	 or direct it to be made or taken by the Court of Sessions. In a case submitted under section 366	 the High Court under section 368(a) may either confirm the sentence	 or pass any other sentence	 i.e. reduce the sentence of death into a sentence of imprisonment for life. Thereafter	 an appeal lies to this Court by a special leave under Article 136 on the question of sentence. Failing the appeal	 there is the President 's power to grant reprieve and pardon under Article 72(1)	 as well as the Governor 's power of 160 commutation under Article 161 of the Constitution which is a sovereign function. The power of the President and of the Governor to grant reprieves and pardons is wide enough to include the power to commute and to remit sentence of punishment. All cases of capital punishment are closely scrutinised by the Executive at both the levels to see whether there are such extenuating circumstances as would justify a reprieve	 and the power to commute a death sentence is freely exercised	 whenever there is some doubt as to the severity of the punishment. Under the present system the prerogative of Mercy in the case of persons under sentence of death works well and it produces results generally regarded as satisfactory. It helps in mitigating the rigour of the death sentence	 particularly in case of those murderers whose execution would offend the public conscience. Very few persons under a sentence of death may be one or two in a year	 in a State are usually executed. Such cases are usually of the kind indicated by me above	 and even some of them escape the sentence of death. It is	 therefore	 not proper for the Court to trench upon the President 's or the Governor 's prerogative to grant pardon or reprieve under Articles 72(1) and 161	 in taking upon itself the task of commutation of a death sentence	 which is properly imposed	 in the facts and circumstances of a particular case	 merely because there is a doubt that the Executive may commute the sentence ultimately	 or by one 's views as to the utility of a death penalty. Judges are entitled to hold their own views	 but it is the bounden duty of the Court to impose a proper punishment	 depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity	 as a means of deterring other potential offenders. It is only in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience that the Court has the power	 as well as the duty	 to impose the death sentence. In view of these adequate safeguards	 it can hardly be asserted that the sentence of death provided for an offence of murder punishable under section 302 is 'de humanising ' or that it is 'unnecessary '. With respect	 my learned brother Krishna Iyer J.	 despite his sense of humanism	 does not appear to be wholly an 'abolitionist '. That is the impression I get from his various judgments on the subject. In Ediga Anamma and Bishan Dass he clearly accepts that where the crime is cruel and inhuman	 a death sentence may be called for. In the present judgment also	 he observes: 161 "If the murderous operation of a die hard criminal jeopardises social security in a persistent	 planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated. If society does not survive	 individual existence comes to nought. So	 one test for impost of death sentence is to find out whether the murderer others such a traumatic threat to the survival of social order. To illustrate	 if an economic offender who intentionally mixes poison in drugs professionally or wilfully adulterates intoxicating substances injuriously	 and knowingly or intentionally causes death for the sake of private profit such trader in lethal business is a menace to social security and is	 therefore	 a violator of social justice whose extinction becomes necessary for society 's survival. Supposing a murderous band of armed dacoits intentionally derails a train and large number of people die in consequence	 if the ingredients of murder are present and the object is to commit robbery inside the train	 they practise social injustice and imperil social security to a degree that death penalty becomes a necessity if the crime is proved beyond doubt. There may be marginal exceptions or special extenuations but none where this kind of dacoity or robbery coupled with murder becomes a contagion and occupation	 and social security is so gravely imperilled that the fundamental rights of the defendant become a deadly instrument whereby many are wiped out and terror strikes community life. Then he `reasonably ' forfeits his fundamental rights and takes leave of life under the law. The style of violence and systematic corruption and deliberately planned economic offences by corporate top echelons are often a terrible technology of knowingly causing death on a macro scale to make a flood of profit. The definition of murder will often apply to them. But because of corporate power such murderous depredations are not charged. If prosecuted and convicted for murder	 they may earn the extreme penalty for taking the lives of innocents deliberately for astronomical scales of gain. Likewise	 if a man is murderer	 so hardened	 so bloodthirsty	 that within the prison and without	 he makes no bones 162 about killing others or carries on a prosperous business in cadavers	 then he becomes a candidate for death sentence. " My learned brother Krishna Iyer J. wants the death penalty to be inflicted in the case of three categories of criminals	 namely (1) for white collar offences	 (2) for anti social offences	 and (3) for exterminating a person who is a menace to the society	 that is	 a `hardened murderer '. Edwin H. Stherland defines a white collar offence as `a crime in relation to business '. (1)The validity of white collar crime as a crime has been a subject of severe controversy in social studies. Now `white collar crime '	 as commonly understood	 means a crime committed by a person of respectability and of high social status in the course of his occupational role. It takes in such forms as restraint of trade	 mis representation in advertising	 infringement of patents	 unfair labour practices	 financial fraud	 unethical or illegal rebating and violation of trusts. It may also take the form of theft	 sale and export of entiques like sculptures	 any work of art of historical value	 illegal sale of narcotics and alcohol	 abortion	 fraudulent accident report	 income tax frauds etc. An `anti social offence ' may consist of sale of spurious drugs	 adulteration of articles of food meant for human consumption	 auto thefts	 `sharp ' business practices which do not conform to the national well being. Some of these offences must undoubtedly be ruthlessly dealt with. But unfortunately our penal laws do not provide for a death sentence for either white collar crimes or anti social offences	 although I wish they did	 at least for certain anti social offences. There will be general measure of agreement that some of the serious anti social offences call for a death sentence viz. acts of sabotage by a person who hijacks a plane and the like and large number of persons die or are injured in consequence	 or disrupts lines of communications	 or holds up a train and commits armed robbery with murder inside the train. He is a menace to the society and deserves a death sentence	 as his existence does not conform to the national well being. Like wise	 a person who indulges in theft or illegal trade and export of art treasures such as invaluable monuments	 paintings and sculptures of historical importance and of priceless antiques of what remains of our national heritage	 or in adulteration of articles of food meant for human consumption	 or in manufacturing and selling of spurious drugs	 or engages in illegal sale in narcotics or alcohol	 which are injurious to the very life of the community	 also deserves a death sentence	 as in many other countries	 or at any rate a sentence of imprisonment for life. The same applies to economic offences which may disrupt the economic life of the community as a whole	 like smuggling of gold and other contraband 163 goods	 which call for a very deterrent punishment. This is necessary to protect the basic economic order of the nation. But these are all matters for the Parliament to decide. It may be stated that the State of West Bengal has taken a step forward in that direction. The Prevention of Adulteration of Food	 Drugs and Cosmetics Act	 1973 (West Bengal Act 42 of 1973 makes the offence of sale of spurious drugs	 adulteration of articles of food meant for human consumption etc.	 punishable with imprisonment for life. As regards `hardened ' murderers	 I am afraid	 there are few to be found. Many murders unfortunately go undetected	 and many a brutal murderer has to be acquitted for want of legal evidence bringing his guilt beyond all reasonable doubt. Nevertheless	 when the guilt is proved	 the Court should leave aside all humanitarian considerations	 if	 the extreme penalty is called for. A `professional ' murderer must	 as a matter of course	 be sentenced to death because he is a menace to the society. Whatever sympathy the Court can have should be reserved for the victims of the crime rather than for the perpetrators. In such cases	 the law must take its course. I do not intend to enter upon any philosophical dialectics as to the `utility ' of the death sentence or enter into the controversy whether it is `unnecessary '	 `brutal ' or `dehumanizing '	 but I would	 for my part	 like to say	 that I am of the opinion with much deference for the great authority of those who think otherwise that the weight of evidence and reason is in favour of the retention of the death penalty. I am afraid	 if the Courts were to be guided by the classification made by the majority the death sentence for an offence of murder punishable under section 302	 for all practical purposes would be virtually non existent. I feel that it is not necessary for the purposes of these appeals to refer to the Indian Penal Code (Amendment) Bill	 1976	 which by section 125 introduces a new section 302 in the Indian Panel Code	 1860. The re drafted section seeks to bring about a change in the law. It abolishes the liability to suffer the death sentence on conviction of murder and substitutes the sentence of imprisonment for life by sub section (1) except in cases of certain first degree murders falling within sub section (2) thereof. The cases in which the death sentence is to be retained are those where	 in the view of the Government	 murder is most dangerous to the preservation of law and order	 and where the death sentence is likely to be a particularly effective deterrent	 viz.	 pre planned murders involving extreme brutality and murders involving exceptional depravity. The Bill is not before the Court. It is	 therefore	 not proper to deal with it. 164 It is	 however	 necessary to emphasise that if there has to be a law reform at all	 some regard must be had to the plight of the victim or his or her family by making provision for payment of compensation. While it is commonly accepted that those convicted of violations of the criminal law must "pay their debt to society"	 little emphasis is placed upon requiring offenders to "pay their debt" to their victims. These again are matters for the Parliament to provide. From a life time of experience	 Sir John Beaumont	 speaking with unrivalled authority	 told the Royal Commission on Capital Punishment(1) that the alternative sentence under section 302 of the Indian Penal Code 1860 had "worked well" in India	 and that he had never himself felt that the responsibility of choosing between the sentence of death and a lesser punishment was unfair or excessive	 nor had he ever heard any Judge in India express such a feeling. He expressed the opinion that there was "no class of offences in which the degree of moral culpability differs more than in case of murder". It is wholly illogical to require a Judge to pass the same sentence in every case. In his view	 the proper solution lies in giving to the Judge the same discretion that he had in regard to other offences. A large body of judicial opinion still shares the same view. If Parliament thought it right to give to the Judges discretion as to the sentence	 I do not think they would or ought to shrink from the onerous responsibility. I feel it would not be appropriate for this Court to curtail the ambit of their discretion by judicial process. We cannot but be oblivious that a sentence of a wrong type	 that is	 to substitute a sentence of imprisonment for life where the death sentence is called for	 causes grave miscarriage of justice. A sentence or pattern of sentences which fails to take due account of the gravity of the offence can seriously undermine respect for law. Turning to the appeals before us	 I cannot say that the award of death sentence in any of these cases was not appropriate or uncalled for. In the three cases before us	 there were "special reasons" within the meaning of section 354	 sub section (3) of the Code of Criminal Procedure	 1973 for the passing of the death sentence in each and therefore	 the High Courts were justified in confirming the death sentences passed	 under 368(a) of the Code. In the circumstances	 any interference with the sentence of death	 in my view	 would be wholly unwarranted in each of these cases. 165 In Rajendra Prasad 's case	 the Allabhabad High Court in confirming the death sentence observes that the accused Rajendra is a `desperate character '	 who after having been convicted under section 302 and undergone a sentence of imprisonment for life was released only a few days prior to the occurrence	 on October 2	 1972	 that is	 on the occasion of Gandhi Jayanti	 committed the brutal murder of the deceased Mansukh by striking him with a knife. On the date of occurrence	 that is	 on October 25	 1972	 at about 11 a.m. the accused along with his brother Pooran rushed towards Sri Kishan	 brother of Rambharosay	 armed with a knife but Sri Kishan ran to safety and was not hurt. Later in the evening at about 5.30 p.m.	 the same day	 while Rambharosay and the deceased Mansukh were standing in the lane in front of Rambharosay 's house	 the accused suddenly appeared and dealt several blows with the knife on vital parts of the body of Rambharosay but Rambharosay released himself from his grip and ran inside his house and bolted the door. The accused chased him all the way with the blood stained knife and knocked at the door asking him to open it. Meanwhile	 the deceased Mansukh came and tried to entreat the accused not to assault Rambharosay. Thereupon the accused struck deceased Mansukh	 who tried to escape	 but the accused chased him over a distance of 200 to 250 feet and inflicted repeated knife blows on the deceased resulting in his death. The deceased was done to death by the accused merely because he tried to prevent him from assaulting Rambharosay. Not only there are no mitigating circumstances but this was a pre planned	 cold blooded murder. While Rajendra was in jail	 his family members used to wield out a threat that the members of the family of Rambharosay would be dealt with after Rajendra is released from jail. The case of this accused is destructive of the theory of reformation. The `therapeutic touch ' which it is said is the best way of preventing repetition of the offence has been of no avail. Punishment must be designed so as to deter	 as far as possible	 from commission of similar offences. It should also serve as a warning to other members of society. In both respects	 the experiment of reformation has miserably failed. I am quite sure that with the commutation of his death sentence	 the accused will commit a few more murders and he would again become a menace to the community. In Kunjukunju Janardhanan 's case	 the Kerala High Court while confirming the death sentence of the accused observes that he acted	 with extreme depravity. Infatuated by the charm of a village girl	 Smt. 166 Santhamma	 then aged about 21 years	 the accused Kunjukunju Janardhanan	 aged 28 years	 committed the brutal murder of his innocent wife	 Smt. Chandramathi	 aged 26 years and his two minor sons	 Sunil aged 7 and Manoj aged 5 at the dead of night while they were sleep by repeatedly striking them with a sharp edged deadly weapon. It redounds to the credit of Smt. Santhamma	 P.W. 2	 the village girl	 with whom the accused was on terms of illicit intimacy	 that she used to entreat him in her letters not to court her as it would destroy the happiness of his family. It was then that the accused wrote the letter	 Ext. P 2	 that he would exterminate his wife and children once for all so that he may live happily with her. I fail to understand what is meant by the `eternal triangle ' as a mitigating circumstance. The accused	 who acted as a monster	 did not even spare his two innocent minor children in order to get rid of his wife and issues through her. If the death sentence was not to be awarded in a case like this I do not see the type of offence which calls for a death sentence. In Sheo Shankar Dubey 's case	 the Allahabad High Court has found the accused Sheo Shankar guilty of triple murder and rightly confirmed the sentence of death passed on him. The accused Sheo Shankar murdered his uncle Narottam Dubey	 and his two sons Chandra Bhushan and Chandra Shekher. On the date of occurrence	 i.e.	 on June 15	 1976 after there was a partition of the joint family lands between the deceased Narottam and Purushottam	 father of the accused Sheo Shankar	 there was a dispute regarding division of three bataulis. The three bataulis could not be equally divided because they were of different sizes. The accused insisted that they should be broken and then partitioned. Vidyawati widow of Narottam	 in fact	 in trying to pacify her brother in law Purushottam	 brought out one batauli and the remaining two were taken out by Chandra Shekhar. It all happened over the act of Chandra Shekher in flinging the two bataulis on the ground which collided making a sound showing his resentment. The expression of resentment implicit in the gesture of Chandra Shekhar infuriated the accused Sheo Shankar to such an extent that he committed the three murders in a row. These were nothing but first degree murders. The weapon used by the accused in committing the crime	 the manner in which the operation was carried out	 and the determination with which the accused acted	 as well as the number of injuries inflicted on the unfortunate victims	 give a clear picture of the cruelty and brutality 167 with which the accused murdered his uncle and his two sons. He first inflicted a knife blow on his uncle Narottam Dubey who tried to run away and as he turned	 the accused dealt him another knife blow resulting in his death on the spot. Narottam Dubey	 it appears	 attempted his best to escape. Even after he had sustained bleeding injuries at the hands of the accused	 he made an effort to run away but he was chased by the accused and the accused finished the victim with grim determination. His cousin Chandra Bhushan tried to intercept with a view to protect the life of his aged father but he was even not spared by the accused who struck a fatal blow on the chest. The second cousin	 Chandra Shekher	 who moved forward to save his brother was chased by the accused who also finished him of by a stroke of the blade of knife he wielded. It was no doubt a trifling incident over the division of three betaulis resulting in the triple murder. It is said that the murders were not `pre meditated ' but committed in the heat of passion over a `family feud '. But that hardly furnishes a justification for the extreme brutality with which the accused acted. There is no inexorable rule that either the extreme youth of the accused or the fact that he acted in a heat of passion must always irrespective of the enormity of the offence or otherwise be treated as a sufficient ground for awarding the lesser punishment. The Court has to take into consideration all the circumstances which do not merit the extreme penalty. I find that in the facts and circumstances of this particular case	 these factors cannot outweigh other considerations. Three precious lives have been lost by the dastardly act of the accused. A family has been wiped off. The death sentence was clearly called for in this case firstly	 as a threat or warning to deter potential murderers	 and secondly	 as the guarantee against the brutalisation of human nature. The grim determination of the accused to bring the entire operation to the end desired by him is also reflected in the manner of his repelling the interception of Chandra Bhushan who went to the rescue of his father and Chandra Shekher who tried to rescue his brother Chandra Bhushan	 the unfortunate victims of the murderous assault. All these facts and circumstances	 to my mind	 constitute `special reasons ' why the accused should be sentenced to death. In retrospect	 I venture to say that in these appeals	 it cannot be asserted that the award of death sentence to the appellants was `erroneous in principle '. Nor can it be said that the sentence of death passed on them was arbitrary or excessive or indicative of an improper exercise of discretion. It is the duty of the Court to impose a proper punishment	 168 depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity	 as a means of deterring other potential offenders. Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality	 will bring to nought the sentence of death provided by section 302 of the Indian Penal Code	 1860. To allow the appellants to escape with the lesser punishment after they had committed such intentional	 cold blooded	 deliberate and brutal murders will deprive the law of its effectiveness and result in travesty of justice. I would	 therefore	 for these reasons dismiss the appeals. The appellants are at liberty to apply for reprieve for commutation of their sentence which is an executive act of clemency. ORDER In the light of the opinion of the majority the death sentence in each of these appeals is commuted to a sentence of imprisonment for life.

(Per majority Krishna Iyer and Desai	 JJ.) ^ 1. The only question before the Court is as to when and why shall capital punishment be pronounced on a murderer and why not in other cases	 within the confines of the Code. Urgency to the solution is obvious. The overt ambivalence and covert conflict among judges concerning continued resort to the death sentence mirrors the uncertainties and conflicts of values in the community itself. [89G & 90D] 2. Section 302 of the IPC throws little light on when the court shall be the sentence of why the lesser penalty shall be preferred. Since law reflects life	 new meanings must permeate the Penal Code. Deprivation of life under our system is too fundamental to be permitted except on the gravest ground and under the strictest scrutiny. [90F: 94C D] 3. To say that discretion of the Judge passing the sentence under section 302 IPC is guided by well recognised principles shifts the issue to what those recognised rules are. The big margin of	 subjectivism. a preference for old precedents	 theories of modern penology	 behavioral emphasis or social antecedents	 judicial hubris or human rights perspectives	 reverence for outworn social philosophers this plurality of forces plays a part in swining the pendulum of sentencing justice erratically. Until Parliament speaks	 this Court cannot be silent. [95; 97G] 4. Executive commutation is no substitute for judicial justice	 at best it is administrative policy and at worst pressure based partiality. The criteria for clemency are often different [99C] 5. In so far as section 302 IPC is concerned several attempts had been made to restrict or remove death penalty but never to enlarge its application. Parliamentary pressure has been to cut down death penalty	 although the section formally remains the same. In the case of the Criminal Procedure Code the legislative development has shifted the punitive centre of gravity from life taking to life sentence. In other words	 the legislative trend seems to be while formerly the rule was to sentence to death a person who is convicted for murder	 it is now to impose a lesser sentence for reasons to be recorded in writing. Formerly	 capital punishment was to be imposed unless special reasons could be found to justify the lesser sentence. After 1955 courts were left equally free to award either sentence. The 1973 Code has made an an mistakable shift in legislative emphasise under which life imprisonment for murder is the rule and capital sentence the exception for reasons to be stated. [101D:104B C] 79 6. Criminologists all the world over	 however	 argued that death has decisively lost the battle	 and even in our Codes it has shrunk into a weak exception. What are the exceptional cases ? Personal story of an actor in a shocking murder	 if considered	 may bring tears and soften the sentence. He might have been a tortured child	 an ill treated orphan	 a jobless man or the convict 's poverty might be responsible for the crime. [106G: 107B] 7. In the post Constitution period section 302 IPC and section 345(3) of the Cr. P.C. have to be read in the humane light of Parts III and IV illumined by the Preamble to the Constitution. In other words the sacrifice of a life sentence is sanctioned only if otherwise public interest and social defence and public order would be smashed irretrievably. Such extraordinary grounds alone constitutionally qualify as special reasons. One stroke of murder hardly qualifies for this drastic requirement	 however gruesome the killing may be. The searching question the Judge must put to himself is what is so extra ordinari ly reasonable as to validate the wiping out of life itself and with it the great rights which inhere in him in the totality of facts. [121F; 110E F] 8. The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal penacea. [122C] 9. The current ethos	 with its strong emphasis on human rights and against death penalty	 together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice which is a paramount principle and cultural paradigm of our Constitution [l22C D] 10. The personal and social	 the motivational and physical circumstances	 of the criminal are relevant factors in adjudging the penalty as clearly provided for under the Code of 1973. So also the intense suffering already endured by prison torture or agonishing death penalty hanging over head consequent on the legal process. [112D El 11. Although the somewhat obsolescent Mc 'Naughten Rules codified in section 84 of the Penal Code alone are exculpatory	 mental imbalances	 neurotic upsets and psychic crises may be extenuatory and the sense of diminished responsibility may manifest itself in judicial clemency of commuted life incar ceration. [l22F] 12. The social justice which the Preamble and Part IV (article 38) highlight	 as paramount in the governance of the country has a role to mould the sentence. If the murderous operation of a die hard criminal jeopardizes social security in a persistent	 planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated. One test for imposition of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order. Some of the principles are never hang unless society or its members may lose more lives by keeping alive an irredeemable convict. Therefore social justice projected by article 38 colours the concept of reasonableness in article 19 and non arbitrariness in article 14. This complex of articles validates death penalty in limited cases. Maybe train dacoity and bank robbery bandits reaching menacing proportions	 economic offenders profit killing in an intentional and organised way	 are such categories in a Third World setting. [112D: 114C: 112G] 80 13. Survival of an orderly society without which the extinction of human rights is a probability compels the higher protection of the law to those officers who are charged with the fearless and risky discharge of hazardous duties in strategic situations. Those officers of law	 like policemen on duty or soldiers and the like have to perform their functions even in the face of threat of violence	 sometimes in conditions of great handicap. If they are killed by designers of murder and the law does not express its strong condemnation in extreme penalisation	 justice to those called upon to defend justice may fail. This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence. [123D E] 14. Special reasons necessary for imposing death penalty must relate not to the crime as such but to the criminal. [124E] Jagmohan Singh vs State of U.P.	 ; ; Ediga Annama vs State of A.P.	 ; ; Sunil Batra vs Delhi Admn.; 	 at 569 & 572; referred to. Capital punishment in India; The Impact of the Ediga Anamma	 by Prof. A. R. Blackshield (July 1977)	 referred to. Rajendra Prasad 's case: The family to which the appellant and the deceased belonged were on inimical terms. The appellant who was the son of one of the families murder ed the deceased. After some years in the prison	 he was released on Gandhi Jayanti day. On return some minor incident ignited his latent feud and he stabbed to death a friend of the opposite family	 he was sentenced to death. The second murder is not to be confounded with the persistent potential for murderous attacks by the murderer. This was not a menace to the social order but a specific family feud. Here was not a youth of controllable violent propensities against the community but one whose paranoid preoccupation with a family quarrel goaded him to go the rival. So long as the therapeutic processes are absent from prisons these institutions	 for from being the healing hope of society	 prove hardening schools to train desperate criminals. Desperate criminal is a convenient description to brand a person. Seldom is the other side of the story exposed to judicial view. There is nothing on record to suggest that the appellant was beyond redemption; nothing on record hints at any such attempt inside the prison. The appellant showed no incurable disposition to violent outbursts against his fellow men. There is therefore	 no special reason to hang him. He should be awarded life imprisonment. Kunjukunju 's case: The appellant	 a married man with two children	 developed illicit sex relations with a fresh girl. In order to win her hand he murdered his wife and two children. There is no evidence to show that he was a desperate hedonist or randy rapist. He is not a social security risk altogether beyond salvage by therapeutic life sentence. Death sentence is commuted to life imprisonment. Dubey 's case: The appellant	 a young man	 aged about 20	 stabbed to death three members of the family with whom his family had a quarrel over partition of 81 property. It is illegal in this case to award capital sentence without considering correctional possibilities inside prison. He was not a murderer born but made by the passion of family quarrel. He could be saved for society with correctional techniques and directed into repentance. A family feud	 an altercation	 a sudden passion	 although attended with extraordinary cruelty	 young and malleable age	 reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence these catenate of circumstances bearing on the offender call fol the lesser sentence. Sen l. (Dissenting) 1. (a) It is constitutionally and legally impermissible for the Supreme Court while hearing an appeal by special leave under article 136 of the Constitution	 on a question of sentence	 to restructure section 302 of the Indian Penal Code	 1860 or section 354	 sub section (3) of the Code of Criminal Procedure 1973	 so as to limit the scope of the sentence of death provided for the offence of murder under section 302. [131F G] (b) The question whether the scope of the death sentence should be curtailed or not	 is one for the Parliament to decide. The matter is essentially of political expediency and	 as such	 it is the concern of statesmen and	 therefore	 properly the domain of the legislature	 not the judiciary. [137E] (c) In an appeal confined to sentence under Article 136 of the Constitution	 Supreme Court has not only the power but as well as the duty to interfere if it considers that the appellant should be sentenced 'differently '	 that is	 to set aside the sentence of death and substitute in its place the sentence of imprisonment for life	 where it considers	 taking the case as a whole	 the sentence of death to be erroneous	 excessive or indicative of an improper exercise of discretion; but at the same time	 the Court must impose some limitations on itself in the exercise of this broad power. In dealing with a sentence which has been made the subject of an appeal	 the Court will interfere with a sentence only where it is 'erroneous in principle '. The question	 therefore	 in each case is whether there is an 'error of principle ' volved.[134G Hl (d) The Court has the duty to see that on the particular facts and circumstances of each case the punishment fits the crime. Mere compassionate sentiments of a humane feelings cannot be a sufficient reason for not confirming a sentence of death but altering it into a sentence of imprisonment for life. In awarding sentence	 the Court must	 as it should	 concern itself with justice	 that is	 with unswerving obedience to established law. It is	 and must be	 also concerned with the probable effect of its sentence both on the general public and the culprit. Judges are not concerned with the morales or ethics of a punishment. It is but their duty to administer the law as it is and not to say what it should be. It is not the intention of the Supreme Court to curtail the scope of the death sentence` under section 302 by a process of judicial construction inspired by the personal views [35B: 137D E] 2. It is also not legally permissible for this Court while hearing an appeal in a particular case where a capital sentence is imposed	 to define the expression "Special reasons" occurring in sub section (3) of section 354 of the Code	 in such 82 virtually has the effect of abolishing the death sentence. [137H] (a) Under section 354	 sub section (3) of the Code of Criminal Procedure	 1973	 the Court is required to state the reasons for a sentence awarded	 and in the case of imposition of a sentence of death the Judge has to record "special reasons" for imposing death sentence. Punishment for murder as a rule should be life imprisonment and death sentence is only an exception. [l59A] (b) It is neither feasible nor legally permissible for this Court to give a definite connotation to the expression "special reasons" occurring in section 354 sub section (3) of the Code of Criminal Procedure	 1973. It is difficult to put "special reasons" in a straight jacket. Each case must depend on its own particular facts. The question of sentence must be left to the discretion of the Sessions Judge trying the accused. Under the present Code	 a trial for murder is divided into two stages. There is a bifurcated trial. The first part of the trial is directed solely to the issue of guilt or innocence	 and concludes with the finding of the Sessions Judge on that issue. At the end of the trial when he comes to a conclusion of guilt	 he has to adjourn the case for hearing the accused on the question of sentence. [159C D] Section 235	 sub section (2) of the Code specifically provides for an opportunity of hearing to the accused on the question of sentence after a verdict of guilt is recorded against him. The burden is upon the prosecution to make out a case for imposition of the extreme penalty. Where a sentence of death is passed	 the Sessions Judge has to make a reference to the High Court under section 366	 sub section (1) of the Code. Under section 367	 sub section (1) if the High court thinks a further inquiry should be made into	 or additional evedence taken upon	 any point bearing upon the guilt or innocence of the convicted person	 it may make such inquiry or take such evidence itself	 or direct it to be made or taken by the Court of Sessions. In a case submitted under section 366	 the High Court under section 368(a) may either confirm the sentence	 or pass any other sentence	 i.e. reduce the sentence of death into a sentence of imprisonment for life. thereafter an appeal lies to this Court by a special leave under Article 136 on the question of sentence. [159E H] Failing the appeal	 there is the President 's power to grant reprieve and pardon under Article 72 (1)	 as well as the Governor 's power of commutation under Article 161 of the Constitution which is a sovereign function. The power of the President and of the Governor to grant reprieves and pardons is wide enough to include the power to commute and to remit sentence of punishment. All cases of capital punishment are closely scrutinised by the Executive at both the levels to see whether there are such extenuating circumstances as would justify a reprieve	 and the power to commute a death sentence is freely exercised	 whenever there is some doubt as to the severity of the punishment. Under the present system the Prerogative of Mercy in the case 	 of persons under sentence of death works well and it produces results gene rally regarded as satisfactory. It helps in mitigating the rigour of the death sentence	 particularly in case of those murderers whose execution would offend the public conscience. Very few persons under a sentence of death may be one or two in a year	 in a State are usually executed. It is	 therefore	 not proper for the Court to trench upon the President 's or the Governor 's perogative to grant pardon or reprieve under Articles 72(1) and 161 in taking 83 upon itself the task of commutation of a death sentence	 which is properly imposed	 in the facts and circumstances of a particular case	 merely because there is a doubt that the Executive may commute the sentence ultimately	 or by one 's views as to the utility of death penalty. [160A E] Balwant Sing case ; Ambaram 's Case 11974] 4 SCC 298 and Sarveshwar Prasad Sharma 's case 11978] 1 SCR 360; referred to. (c) Judges are entitled to hold their own views	 but it is the bounden duty of the Court to impose a proper punishment	 depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity	 as a means of deterring other potential offenders. It is only in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience that the Court has the power	 as well as the duty	 to impose the death sentence. In view of these adequate safeguards	 it can hardly be asserted that the sentence of death provided for an offence of murder punishable under section 302	 is 'dehumanizing ' or that it is 'unnecessary '. Where the crime is cruel and inhuman a death sentence may be called for. [160F H] Ediga Anamma; 	 ; Bishan Das & Ors. ; referred to. (d) If Parliament thought it right to give to the Judges discretion as to the sentence	 they would not or ought not to shrink from their onerous responsibility. It would not be appropriate to curtail the ambit of their discretion by judicial process. A sentence of a wrong type	 that is	 to substitute a sentence of imprisonment for life where the death sentence is called for	 causes grave miscarriage of justice. A sentence or pattern of sentences which fails to take due account of gravity of the offence can seriously undermine respect for law. [164E F] (e) In the three cases there were 'special reasons ' within the meaning of section 354	 sub section (3) of the Code of Criminal Procedure	 1973 for the passing of the death sentence in each and	 therefore	 the High Courts were justified in confirming the death sentence passed under section 368(a) of the Code. Indeed	 they are illustrative of the rate type of cases	 that is	 first degree murders	 where a death sentence is usually awarded in any civilised country. These were cases of diobolical	 cold blooded brutal murders of innocent persons	 that is	 first degree murders of extreme brutality or depravity. The inhumanity of some of the offences defied belief Any interference with the sentence of death	 would be wholly unwarranted in each case. [l64G] (f) It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality	 will bring to nought the sentence of death provided for by section 302 of the Indian Penal Code	 1860. To allow the appellants to escape with the lesser punishment after they had committed such intentional	 cold blooded deliberate and brutal murders will deprive the law of its effectiveness and result in travesty of justice. [l68A B] 84 (g) In these appeals it cannot be asserted that the award of death sentence to the appellants was "erroneous in principle". Nor can it be said that the sentence of death passed on them was arbitrary or excessive or indicative of an improper exercise of discretion. [167H] (i) Rajendra Prasad 's case is destructive of the theory of reformation. The 'therapeutic touch ' which it is said is the best way of preventing repetition of the offence has been of no avail. Punishment must be designed so as to deter	 as far as possible from commission of similar offences. It should also serve as a warning to other members of society. In both respects	 the experiment of reformation has miserably failed. There is no doubt	 with the commutation of his death sentence	 the accused will commit a few more murders and he would again become a menace to the community. [165G] (ii) In Kunjukunju Janardhan 's case the accused	 who acted as a monster	 did not even spare his two innocent minor children in order to get rid of his wife and issues through her. The death sentence was the only and appropriate penalty which should be awarded in such a case. [166D] (h) There is no inexorable rule that either the extreme youth of the accused or the fact that he acted in a heat of passion must always irrespective of the enormity of the offence or otherwise be treated as a sufficient ground for awarding the lesser punishment. The Court has to take into consideration all the circumstances which do not merit the extreme penalty. In the facts and circumstances of this particular case i.e. Sheo Shanker . Dubey 's case these factors cannot outweigh other considerations. Three precious lives have been lost by the dastardly act of the accused. A family has ` been wiped off. The death sentence was clearly called for in this case E firstly	 as a threat or warning to deter potential murderers	 and secondly as the guarantee against the brutalisation of human nature. All facts and circumstances	 constitute 'special reasons ' why the accused should be sentenced to death. [167E Fl 3. It cannot be said that imposition of death penalty	 except in the classes of cases indicated in the majority Judgment would be violative of Articles 14	19 and 21 of the Constitution. Such a question really does not arise forconsideration. [136G] (a) The citizen 's right to life and personal liberty are guaranteed by Article 21 of the Constitution irrespective of his political beliefs	 class	 creed or religion. The Constitution has	 by Article 21 itself forged certain procedural safeguards for protection to the citizen of his life and personal liberty. The idealistic considerations as to the inherent worth and dignity of man is a fundamental and prevasive theme of the Constitution	 to guard against the execution of a citizen for his political beliefs. [136C D] (b) A patriot cannot be equated with an ordinary criminal. A humanistic approach should not obscure one 's sense of realities. When a man commits a crime against the society by committing a diabolical	 cold blooded	 pre planned murder	 of an innocent person the brutality of which shocks the conscience of the Court	 he must face the consequences of his act. Such a person forfeits his right to life. [136E3] 85 Jagmohan Singh vs State of U.P. ; followed. Furman vs Georgia	 ; 	 33 L. ed	 2nd 346 explained and differed from. Michael de Freites vs Gaorgie Ramouter Benny	 L.R. ; quoted with approval. (c) If the Courts were to be guided by the classification for inflicting death penalty only in the case of three categories of criminals	 namely	 (i) for white collar offences (ii) for anti social offences	 and (iii) for exterminating a person who is a menace to the society	 that is	 a 'hardened murderer '	 the death sentence for an offence of murder punishable under section 302	 for all practical purposes would be virtually non existent. Unfortunately our penal laws do not provide for death sentence for either white collar crimes or anti social offences. As regards 'hardened ' murderers	 there are few to be found. Many murders unfortunately go undetected and many a brutal murderer has to be acquitted for want of legal evidence bringing his guilt beyond reasonable doubt. Nevertheless	 when the guilt is proved	 the Court should leave aside all humanitarian considerations if the extreme penalty is called for. A 'professional ' murderer must	 as matter of course	 be sentenced to death because he is menace to the society. Whatever sympathy the Court can have should be reserved for the victims of the crime rather than for the perpatrators. In such cases	 the law must take its course. [162B E; 163C D] 4. The criminality of a crime consists not only in the criminal act but in what that signifies. Its immediately apparent features	 the obvious damage to person or property or to public security	 are symptoms of a deeper disorder. It betokens	 and it fosters	 an attitude in man to man	 of reckless selfishness	 decit or malice	 which is incompatible in the long run with any decent social life. In any advanced society it is	 in part at least	 on account of this wider character	 less easily discerned	 that the graver offence are Punished. [l43E F] (a) All punishment properly implies moral accountability. It is related to injury and not only to damage or danger however greater. Capital punishment does so in an eminent degree. It is directed against one who is ex hypothesi an inhuman brute	 i.e. it is imposed simply to eliminate who is held to have become irretrievably	 a. Iiability or a menace to society. [142E] (b) Punishment like crime has a dual character. The penalty which the convicted murderer incurs is not simply death	 but death in disgrace and death as a disgrace. In so far as capital punishment is a threat	 the threat consists not only in death but in infamy. Any theory which ignores this characteristic is certainly defective. [l43F] Sir Walter Moberly The Ethics of Punishment Ch. Xl Capital Punishment pp. 271 81: referred to. (c) Punishment inflicted by the State in response to a violation of criminal law has been justified in various ways namely	 as society 's vengeance upon the criminal as atonement by the wrong doer	 as a means of deterring other criminals	 as protection for the law abiding and as a way of rehabilitating the criminal. 86 Theories of rehabilitation are largely speculative	 since there is lack of scientific evidence to support them	 though it has been influential in the development of modern penology.[144A B] 5. (a) The capital punishment controversy falls within the strict limits of 'independent ' parliamentary law making	 and is a typical or representative of the kind of problems that leaders of Parliament face every day. In short	 the case for abolition of the death sentence is political	 not constitutional	 The Government carries the responsibility of law and order. That is the first` and fundamental duty of any Government. The Executive has the duty of advising the Government of the laws it believes necessary for the national wellbeing. It is the duty of the Court	 including this Court	 to administer the laws as they are. [l57D E] (b) Analysing the substantive merits of the cases for and against the death penalty for murder is essentially a question for the Parliament to resolve and not for the Supreme Court to decide. Therefore	 it would not be proper for the Judges to attempt to project their personal views in a matter which lies in the realm of political decision making	 by focussing on a single controversy	 the question of the proper penalty for the crime of murder. [157B] (c) Any justification for the capital sentence	 as for other salient features of the penal system must be sought in the protection of the society and that alone. [145E] Even where it has been legally retained	 as in India	 Capital Punishment is now seldom employed except in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience. Indeed the death penalty satisfies the society 's retributive goals and is still presumed to be a deterrent to potential offenders Of the three purposes commonly assigned to punishment retribution	 deterrence and reformation deterrence is generally held to be the most important	 although the continuing public demand for retribution cannot be ignored. Prima facie	 the death sentence is likely to have a stronger affect as a deterrent upon normal human beings than any other form of punishment. People are believed to refrain from crime because they fear punishment. Since people fear death more than anything else	 the death penalty is the most effective deterrent. [146C E] (d) If the appeal of capital punishment were merely to fear of death	 it would be a very inefficient protector of society. In civilised society and in peace time	 government relies for obedience more on its moral prestige than on violent repression of crime. Punishment only protects life effectively if it produces in possible murderers	 not only fear of the consequences of committing murder	 but a horrified recoil for the thing itself It can only achieve	 this	 more ambitious	 task	 if sentence of death is felt to embody society 's strongest condemnation of murder and keenest sense of its intolerable wickedness. It is not by the fear of death but by exciting in the community a sentiment of horror against any particular act	 that the offenders could be deterred from committing it. [143B C] Royal Commission on Capital Punishment Para 59: referred to. (e) The punishment of death should reflect adequately the revulsion felt for the gravest of crimes by the great majority of citizens. Legislators and Judges: 87 share this revulsion themselves; otherwise indeed their action would be morally indefensible. Their aim then should be	 not only to strike terror nor even to awaken popular indignation in a direction convenient to Government. It would be to arouse in all and sundry their Own indignant repudiation of a wicked act and at the same time	 to deepen it in themselves. In this vain sentence of death has been pronounced	 carried out and acclaimed with stern satisfaction. Otherwise the conscience of the community would be revolted if the criminals were allowed to live.[145F G] 6.(a) The theory that (i) the death penalty is per se cruel and unusual punishment and (ii) alternatively the inordinate delay in carrying it out makes it so has now been completely destroyed by two recent decisions of the Privy Council.[149F] Eaton Baker v The Queen	 Freites vs George Ramouter Benny	 ; discussed. (b) ln the United States of America also the death penalty has practically existed more or less harmoniously with humane theories of criminal justice for over two hundred years (e.g). [151E] (i) In Trop vs Dulles	 ; 	 L. ed. 630	 the Court refused to consider the death penalty as an indent of the constitutional limit of punishment; (ii) In McGouths vs California	 ; 	 it was held that the absence of any guidelines was not a violation of "due process" and (iii) In Furman vs Georgia the multiple opinions did not rule out altogether re imposition of the death penalty in the future provided there was legislative structuring of a permissible system providing for sufficient procedural safeguards; (iv) Later on	 the death penalty has been reimposed and this judicial approach stood reoriented. The constitutionality of the death penalty was supported by four factors (1) the reference to capital punishment in the Constitution (ii) the past Supreme Court decisions on the death penalty (iii) the limitations of judicial restraints and (iv) the doctrine of separation of powers. [151F; 152D; 154E] M. Cherif Bassi Owni; Substantive Criminal Law p. 120 128; referred to and (v) In Gregg vs Georgia	 ; ; 49 L.ed. 859; Proffit vs Floride	 [1976] 428 242; ; 913; Jurek Texas; 	 ; 	 929 all concerned with discretionary sentencing procedures and in Woodson vs North Carolina	 ; ; and Roberts vs Lonisiana ; [1976] 428 US 326; both concerned with mandatory death sentence it was held that (a) the punishment of death did not invariably violates the Constitution (b) history and precedent did not support the conclusion that the death sentence was per se violation of 8th and 14th Amendments (c) the evolving standards of decency arguments had been substantially under cut in the last four years because a large segment of the enlightened population regarded the death penalty as appropriate and necessary as seen in the new legislation passed in response to Furman (d) the death penalty was not inherently cruel and unusual. It served two principal social purposes retribution and deterrence	 and therefore the death sentence for the crime of murder was (1) not without justification (2) not unconstitutionally severe and (3) not invariably disproportionate to the crime and (e) that Furman mandated	 where discretionary sentencing was used	 there must be suitable direction and 88 limitation to minimise the risk of wholly and arbitrary and capricious action	 the bifurcated trial with standards modelled after the Modern Penal Code juries gave just such guidance. [155F G; 156A] Observation: