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

    PETITIONER:

BACHAN SINGH ETC. ETC.

 Vs.

RESPONDENT:

STATE OF PUNJAB ETC. ETC.

DATE OF JUDGMENT16/08/1982

BENCH:

BHAGWATI, P.N.

BENCH:

BHAGWATI, P.N.

CHANDRACHUD, Y.V. ((CJ)

SARKARIA, RANJIT SINGH

GUPTA, A.C.

UNTWALIA, N.L.

CITATION:

 1982 AIR 1325 1983 SCR (1) 145

 1982 SCC (3) 24 1982 SCALE (1)713

 CITATOR INFO :

 E 1983 SC1155 (3,4,5,6,8,9,12,13,23,27,28,29 RF 1989 SC 653 (17)

 E&D 1989 SC1335 (10)

 R 1989 SC2299 (2,3)

 RF 1991 SC 345 (6,11)

ACT:

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

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

     (C) Powers of the Supreme Court to lay down standards or norms restricting
the area of imposition of death penalty to a narrow category of murders.

HEADNOTE:

     Upholding the constitutionality of section 302, Penal Code, and section 354
(3) of the Code of Criminal Procedure Code. the Court.

^

     HELD: Per majority.

     Sarkaria, J. [On behalf of Chandrachud, C.J., A.C. Gupta, N.L. Untwalia,
JJ. and on his own behalf]. The right to life is not one of the rights mentioned
in Article 19 (1) of the Constitution and the six fundamental freedoms
guaranteed under Article 19(1) are not absolute rights. The condition precedent
for the applicability of Article 19 is that the activity which the impugned law
prohibits and penalises, must be within the purview of and protection of Article
19 (1). [173 E, 174 A, B-C] 146

     State of Bombay v. R.M.D. Chamarbaugwala, [1957] SCR 874 @ 920; Fatechand
Himmatlal and Ors. v. State of Maharashtra, [1977] 2 SCR 828 @ 840; A.K. Gopalan
v. The State of Madras, [1950] 1 SCR 88, followed.

     2. The Indian Penal Code, particularly those of its provisions which cannot
be justified on the ground of unreasonableness with reference to any of the
specified heads, such as "public order" in clauses (2), (3) and (4) is not a law
imposing restrictions on any of the rights conferred by Article 19 (1). There
are several offences under the Penal Code, such as, theft, cheating, ordinary
assault, which do not violate or affect "public order", but only "law and
order". These offences injure only specific individuals as distinguished from
the public at large. It is now settled that "public order" means "even tempo of
the life of the community". That being so, even all murders do not disturb or
affect "public order". Some murders may be of purely private significance and
the injury or harm resulting therefrom affects only specific individuals, and,
consequently, such murders may not be covered by "public order" within the
contemplation of clauses (2), (3) and (4) of Article 19. Such murders do not
lead to public disorder but to disorder simpliciter. Yet, no rational being can
say that punishment of such murderers is not in the general public interest. It
may be noted that general public interest is not specified as a head in clauses
(2) to (4) on which restriction on the rights mentioned in clause (i) of the
Article may be justified.

      [181 D-H, 182 A-B]

     The real distinction between the areas of "law and order" and "public
order" lies not merely in the nature or quality of the act, but in the degree
and extent. Violent crimes similar in nature, but committed in different
contexts and circumstances might cause different reactions. A murder committed
in given circumstances may cause only a slight tremor, the wave length of which
does not extend beyond the parameters of law and order. Another murder committed
in different context and circumstances may unleash a tidal wave of such
intensity, gravity and magnitude, that its impact throws out of gear the even
flow of life. Nonetheless, the fact remains that for such murders which do not
affect "public order", even the provision for life imprisonment in section 302,
Indian Penal Code, as an alternative punishment, would not be justifiable under
clauses (2), (3) and (4) as a reasonable restriction in the interest of "public
order". Such a construction must, therefore, be avoided. Thus construed, Article
19 will be attracted only to such laws, the provisions of which are capable of
being tested under clauses (2) to (5) of Article

19. [182 B-E]

     R.S. Cooper v. Union of India, [1970] 3 SCR 530; Maneka Gandhi v. Union of
India, [1978] 2 SCR 621; Dr. Ram Manohar Lohia's case, [1966]1 SCR 709; Hardhan
Saha and Anr. v. State of West Bengal, [1975] 1 SCR 778@ 784, followed.

     3. From the decided cases of the Supreme Court, it is clear that the test
of direct and indirect effect was not scrapped. Indeed there is no dispute that
the test of "pith and substance" of the subject-matter and of direct and of
incidental effect of legislation is a very useful test to determine the question
of legislative competence, i.e., in ascertaining whether an Act falls under one
Entry 147

while incidentally encroaching upon another Entry. Even for determining the
validity of a legislation on the ground of infringement of fundamental rights,
the subject matter and the object of the legislation are not altogether
irrelevant. For instance, if the subject matter of the legislation directly
covers any of the fundamental freedoms mentioned in Article 19 (1). It must pass
the test of reasonable ness under the relevant head in clauses (2) to (6) of
that Article. If the legislation does not directly deal with any of the rights
in Article 19 (1), that may not conclude the enquiry. It will have to be
ascertained further whether by its direct and immediate operation, the impugned
legislation abridges any of the rights enumerated in Article 19 (1). [189 B-D]

     The mere fact that the impugned law incidentally, remotely or collaterally
has the effect of abridging or abrogating those rights, will not satisfy the
test. If the answer to the above queries be in the affirmative, the impugned law
in order to be valid must pass the test of reasonableness under Article 19. But
if the impact of the law on any of the rights under clause (1) of Article 19 is
merely incidental, indirect, remote or collateral and is dependent upon factors
which may or may not come into play, the anvil of Article 19 will not be
available for judging its validity. [190 A-C]

     R.C. Cooper v. Union of India, [1970] 3 SCR 530; Maneka Gandhi v. Union of
India, [1978] 2 SCR 621; Subrahmanyam Chattiar's case, [1940] FCR 188; Ram Singh
v. State of Delhi, [1951] SCR 451; Express Newspapers (P) Ltd. and Anr v. The
Union of India & Ors., [1959] SCR 12; Minnesota Ex. Rel. Olson, [1930] 283 U.S.
697 @ 698; Sakal Papers (P) Ltd. and Ors. v. The Union of India, [1962] 3 SCR
842; Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr., [1966]
3 SCR 744; Bennett Coleman's case, AIR 1973 SC 106, referred to.

     4. Section 299 defines "culpable homicide" and section 300 defines culpable
homicide amounting to murder. Section 302 prescribes death or imprisonment for
life as penalty for murder. It cannot, reasonably or rationally, be contended
that any of the rights mentioned in Article 19 (1) of the Constitution confers
the freedom to commit murder or, for the matter of that, the freedom to commit
any offence whatsoever. Therefore, penal laws, that is to say laws which define
offences and prescribe punishment for the commission of offences do not attract
the application of Article 19 (1). It cannot be said that the object of the
penal laws is generally such as not to involve any violation of the rights
conferred by Article 19 (1) because after the decision of this Court in the Bank
Nationalisation case the theory, that the object and form of the State action
alone determine the extent of protection that may be claimed by an individual
and that the effect of the State action on the fundamental right of the
individual is irrelevant, stands discredited. But the point of the matter is
that, in pith and substance, penal laws do not deal with the subject-matter of
rights enshrined in Article 19 (1). That again is not enough for the purpose of
deciding upon the applicability of Article 19, because even if a law does not,
in its pith and substance, deal with any of the fundamental rights conferred by
Article 19 (1), if the direct and inevitable effect of the law is such as to
abridge or abrogate any of those rights, Article 19 (1) shall have to be
attracted. It would then become necessary to test the

148

validity of even a penal law on the touchstone of that Article. On this latter
aspect of the matter, it is clear that the deprivation of freedom consequent
upon an order of conviction and sentence is not a direct and inevitable
consequence of the penal law but is merely incidental to the order of conviction
and sentence which may or may not come into play, that is to say, which may or
may not be passed. Section 302 of the Penal Code, therefore, does not have to
stand the test of Article 19 (1) of the Constitution. [190 C-H, 191 A-B]

     The onus of satisfying the requirements of Article 19, assuming that the
Article applies. lies on the person challenging its validity. There is initial
presumption in favour of the constitutionality of the state and the burden of
rebutting that presumption is thrown on the party who challenges the
constitutionality on the ground of Article

19. Behind the view that there is a presumption of constitutionality of a
statute and the onus to rebut the same lies on those who challenge the
legislation, is the rationale of judicial restraint, a recognition of the limits
of judicial review, a respect for the boundaries of legislative and judicial
functions, and the judicial responsibility to guard the trespass from one side
or the other. The primary function of the courts is to interpret and apply the
laws according to the will of those who made them and not to transgress into the
legislative domain of policy-making. Even where the burden is on the State to
show that the restriction imposed by the impugned statute is reasonable and in
public interest, the extent and the manner of discharge of the burden
necessarily depends on the subject-matter of the legislation, the nature of the
inquiry, and the scope and limits of judicial review. [192 C-D, 193 A, C-D, 194
D-E]

     Saghir Ahmad v. State of Uttar Pradesh, [1955] 1 SCR 707; Khyerbari Tea Co.
v. State of Assam & Ors., A.I.R. 1964 SC 925; B. Banerjee v. Anita Pan, [1975] 2
SCR 774 @ 787; Pathumma v. State of Kerala, [1978] 2 SCR 537; Dennis v. United
States, 341 US 494, 525: 95 L.Ed. 1137: 71 S. Ct. 857; Gregg v. Georgia, 428 US
153: 49 L.Ed. 2nd 859; State of Madras v. V.G. Rao, [1952] SCR 597 @ 607;
Jagmohan Singh v. State of U.P., [1973] 2 SCR 541, referred to.

     5. Statistical attempts to assess the true penological value of capital
punishment remain inconclusive. Firstly, statistics of deterred potential
murderers are hard to obtain. Secondly, the approach adopted by the
Abolitionists is over simplified at the cost of other relevant but imponderable
factors, the appreciation of which is essential to assess the true penological
value of capital punishment. The number of such factors is infinitude, their
character variable, duration transient and abstract formulation difficult.
Conditions change from country to country and time to time. Due to the
inconsistancy of social conditions, it is not scientifically possible to assess
with any degree of accuracy, as to whether the variation in the incidence of
capital crime is attributable to the presence or absence of death penalty in the
penal law of that country for such crimes.

         [215 E-H, 216 A]

149

     6. To sum up, the question whether or not death penalty serves any
penological purpose is a difficult, complex and intractable issue. It has evoked
strong, divergent views. For the purpose of testing the constitutionality of the
impugned provision as to death penalty in section 302, Penal Code, on the ground
of reasonableness in the light of Articles 19 and 21 of the Constitution, it is
not necessary to express any categorical opinion, one way or the other, as to
which of these two antithetical views, held by the Abolitionists and
Retentionists, is correct. It is sufficient to say that the very fact that
persons of reason, learning and light are rationally and deeply divided in their
opinion on this issue, is a ground among others, for rejecting the petitioners'
argument that retention of death penalty in the impugned provision, is totally
devoid of reason and purpose. If, notwithstanding the view of the Abolitionists
to the contrary, a very large segment of people the world over, including
sociologists, legislators, jurists, judes and administrators still firmly
believe in the worth and necessity of capital punishment for the protection of
society, if in the perspective of prevailing crime conditions in India,
contemporary public opinion chanalised through the people's representatives in
Parliament, has repeatedly in the last three decades, rejected all attempts,
including the one made recently, to abolish or specifically restrict the area of
death penalty, if death penalty is still a recognised legal sanction for murder
or some types of murder in most of the civilised countries in the world, if the
framers of the Indian Constitution were fully aware of the existence of death
penalty as punishment for murder, under the Indian Penal Code, if the 35th
Report and subsequent Reports of the Law Commission suggesting retention of
death penalty, and recommending revision of the Criminal Procedure Code and the
insertion of the new sections 235 (2) and 354 (3) in that Code providing for
pre-sentence hearing and sentencing procedure on conviction for murder another
capital offences were before the Parliament and presumably considered by it when
in 1972-73 it took up revision of the Code of 1898, and replaced it by the Code
of Criminal Procedure, 1973, it cannot be said that the provision of death
penalty as an alternative punishment for murder, in section 302, Penal Code, is
unreasonable and not in public interest. Therefore, the impugned provision in
section 302, violates neither the letter nor the ethos of Article 19. [221 B-H,
222 A]

     7. (i) Neither the new interpretative dimensions given to Articles 19 and
21 by the Supreme Court in Maneka Gandhi, [1978] 2 SCR 621, and Charles Sobraj
v. The Superintendent, Central Jail, Tihar, New Delhi, [1979] 1 SCR 512, nor the
acceptance by India of the International Covenant on Civil and Political Rights,
makes any change in the prevailing standards of decency and human dignity. The
International Covenant does not outlaw capital punishment for murder altogether.
[225 C-E]

     (ii) In accordance with the interpretative principle indicated by the
Supreme Court in Maneka's case, Article 21 will read as "No person shall be
deprived of his life or personal liberty except according to fair, just and
reasonable procedure established by valid law" or in its converse positive form
as "A person may be deprived of his life or personal liberty in accordance with
fair, just and reasonable procedure established by valid law." Article 21, thus,
clearly

150

brings out the implication, that the Founding Fathers recognised the right of
the State to deprive a person of his life or personal liberty in accordance with
fair, just and reasonable procedure established by valid law. In view of the
constitutional provisions-Entries 1 and 2 in List III Concurrent List of Seventh
Schedule Articles 72 (1) (c), 161 and 134-it cannot be said that death penalty
under section 302, Penal Code, per se or because of its execution by hanging,
constitutes an unreasonable, cruel or unusual punishment. By reason of the same
constitutional postulates, it cannot be said that the framers of the
Constitution considered death sentence for murder or the prescribed traditional
mode of its execution as a degrading punishment which would defile "the dignity
of the individual" within the contemplation of the Preamble to the Constitution.
On parity of reasoning, it cannot be said that death penalty for the offence of
murder violates the basic structure of the Constitution. [222 E-H, 223 A-B, F-H]

     (iii) Clauses (1) and (2) of Article 6 of the International Covenant on
Civil and Political Rights do not abolish or prohibit the imposition of death
penalty in all circumstances. All that they require is that, firstly, death
penalty shall not be arbitrarily inflicted; secondly, it shall be imposed only
for most serious crimes in accordance with a law which shall not be an ex post
facto legislation. Thus, the requirements of these clauses are substantially the
same as the guarantees or prohibitions contained in Articles 20 and 21 of our
Constitution. India's commitment, therefore, does not go beyond what is provided
in the Constitution and the Indian Penal Code and the Criminal Procedure Code.
The Penal Code prescribes death penalty as an alternative punishment only for
heinous crimes which are not more than seven in number. Section 354 (3) of the
Criminal Procedure Code, 1973 in keeping with the spirit of the International
Covenant, has further restricted the area of death penalty. India's penal laws,
including the impugned provisions and their application, are thus entirely in
accord with its international commitment. [224 G-H, 225 A-C]

     8. The procedure provided in Criminal Procedure Code for imposing capital
punishment for murder and some other capital crimes under the Penal Code cannot,
by any reckoning, be said to be unfair, unreasonable or unjust. Nor can it be
said that this sentencing discretion, with which the Courts are invested,
amounts to delegation of its power of legislation by Parliament. The impugned
provisions do not violate Articles 14, 19 and 21 of the Constitution. [238 B,
G-H, 239 A-B]

     Section 235 (2) of the Code of Criminal Procedure makes not only explicit
what according to the decision in Jagmohan's case was implicit in the scheme of
the Code, but also bifurcates the trial by providing two hearings, one at the
preconviction stage and another at the pre-sentence stage. And, section 354 (3)
of the Code marks a significant shift in the legislative policy underlying the
Code, 1898, as in force immediately before April 1, 1974, according to which
both the alternative sentences of death or imprisonment for life provided for
murder and for certain other capital offences under the Penal Code, were normal
sentences. Now, according to this changed legislative policy which is patent on
the face of section 354 (3), the normal punishment for murder and six other
capital offences under the Penal Code is imprisonment for life (or imprisonment
for a term of years) and death penalty is an exception. [229 F- G, A-B]

151

     Although sub-section (2) of section 235 of the Code does not contain a
specific provision as to evidence and provides only for hearing of the accused
as to sentence, yet it is implicit in this provision that if a request is made
in that behalf by either the prosecution or the accused, or by both, the Judge
should give the party or parties concerned an opportunity of producing evidence
or material relating to the various factors bearing on the question of sentence.
[230 E-F]

     Jagmohan Singh v. State of U.P., [1973] 2 SCR 541, reiterated.

     Santa Singh v. State of Punjab, AIR 1973 SC 2385, referred to.

     9. The expression "special reasons" in the context of section 354 (3)
obviously means "exceptional reasons" founded on the exceptionally grave
circumstances of the particular case relating to crime as well as criminal.
Thus, the legislative policy now writ large and clear on the face of section 354
(3) is that on conviction of murder and other capital offences punishable in the
alternative with death under the Penal Code, the extreme penalty should be
imposed only in extreme cases. [236 C-D]

     Balwant Singh v. State of Punjab, [1976] 2 SCR 684, referred to.

     10. Section 235 (2) of the Code provides for a bifurcated trial and
specifically gives the accused person a right of pre-sentence hearing, at which
stage, he can bring on record material or evidence, which may not be strictly
relevant to or connected with the particular crime under inquiry, but
nevertheless have, consistently with the policy underlined in section 354 (3), a
bearing on the choice of sentence. The present legislative policy discernible
from section 235(2) read with section 354(3) is that in fixing the degree of
punishment or making the choice of sentence for various offences, including one
under section 302, Penal Code, the Court should not confine its consideration
"principally" or "merely" to the circumstances connected with the particular
crime, but also give due consideration to the circumstances of the criminal.
[237 C-E]

     11. The Supreme Court should not venture to formulate rigid standards in an
area in which the Legislature so warily treads. Only broad guidelines consistent
with the policy indicated by the Legislature can be laid down. But this much can
be said that in order to qualify for inclusion in the category of "aggravating
circumstances" which may form the basis of "special reasons" in section 354(3),
circumstances found on the facts of a particular case, must evidence aggravation
of an abnormal or special degree. [243 E-F, 254 B-C]

     Gurbakash Singh Sibbia and Ors. v. State of Punjab, [1980] 3 SCR p. 383,
applied.

     Hyman and Anr. v. Rose, [1912] AC 623, referred to.

     12. Sections 354 (3) and 235 (2) and other related provisions of the Code
of 1973 make it clear that for making the choice of punishment or for
ascertaining 152

the existence or absence of "special reasons" in that context, the Court must
pay due regard both to the crime and the criminal. What is the relative weight
to be given to the aggravating and mitigating factors, depends on the facts and
circumstances of the particular case. More often than not, these two aspects are
so intertwined that it is difficult to give a separate treatment to each of
them. This is so because "style is the man." In many cases, the extremely cruel
or beastly manner of the commission of murder is itself a demonstrated index of
the depraved character of the perpetrator. That is why, it is not desirable to
consider the circumstances of the crime and the circumstances of the criminal in
two separate water-tight compartments. In a sense, to kill is to be cruel and
therefore all murders are cruel. But such cruelty may vary in its degree of
culpability. And it is only when the culpability assumes the proportion of
extreme depravity that "special reasons" can legitimately be said to exist.

       [251 G-H, 252 A-C]

     Rajendra Prasad v. State of U.P. [1979] 3 SCR p. 78, Bishnu Deo Shaw v.
State of West Bengal, [1979] 3 SCR p. 355, overruled.

     13. There are numerous other circumstances justifying the passing of the
lighter sentence, as there are countervailing circumstances of aggravation. "We
cannot obviously feed into a judicial computer all such situations since they
are astrological imponderables in an imperfect and undulating society."
Nonetheless, it cannot be over emphasised that the scope and concept of
mitigating factors in the area of death penalty must receive a liberal and
expansive construction by the courts in accord with the sentencing policy writ
large in section 354 (3). Judges should never be blood-thirsty. Hanging of
murderers has never been too good for them. Facts and figures, albeit
incomplete, furnished by the Union of India, show that in the past, Courts have
inflicted the extreme penalty with extreme infrequency-a fact which attests to
the caution and compassion which they have always brought to bear on the
exercise of their sentencing discretion in so grave a matter. It is, therefore,
imperative to voice the concern that Courts, aided by the broad illustrative
guidelines indicated by the Supreme Court, will discharge the onerous function
with evermore scrupulous care and humane concern, directed along the highroad of
legislative policy outlined in section 354 (3), viz., that for persons convicted
of murder life imprisonment is the rule and death sentence an exception. A real
and abiding concern for the dignity of human life postulates resistance to
taking a life through law's instrumentality. That ought Lot to be done save in
the rarest of rare cases when the alternative option is unquestionably
foreclosed. [255 E-H, 256 A-C] Per Bhagwati J. (Dissenting)

     1:1. Ordinarily, on the principle of stare decisis, Judges would hold
themselves bound by the view taken in an earlier case and resist any attempt at
reconsideration of the same issue. But, for several weighty and given
considerations, the Court can depart from this precedential rule in any
particular case.

         [258 A-B]

     1:2. The rule of adherence to precedence is not a rigid and inflexible rule
of law, but it is a rule of practice adopted by the Courts for the purpose of
ensuring uniformity and stability in the law. Otherwise there will be no
certainty and predictability in the law, leading to chaos and confusion and in
the process

153

destroying the rule of law, and increasing the labour of judges. But this rule
of adherence to precedents; though a necessary tool "in the legal smithy," is
only a useful servant and can not be allowed to turn into a tyrannous master. If
the rule of stare decisis were followed blindly and mechanically, it would dwarf
and stultify the growth of the law and affect its capacity to adjust itself to
the changing needs of the society. [258 B-C, D,E,F] 1:3 There are certain issues
which transcend technical considerations of stare decisis and if such an issue
is brought before the Court, it would be nothing short of abdication of its
constitutional duty for the Court to refuse to consider such issue by taking
refuge under the doctrine of stare decisis. The Court may refuse to entertain
such an issue like the constitutional validity of death penalty because it is
satisfied that the previous decision is correct but it cannot decline to
consider it on the ground that it is barred by the rule of adherence to
precedents. [259 E-G]

     In the present case, there are two other supervening circumstances which
justify, may compel, re-consideration of the decision in Jagmohan's case. The
first is the introduction of the new Code of Criminal Procedure in 1973, which
by section 354, sub-section (3) has made life sentence the rule, in case of
offences punishable with death or in the alternative imprisonment for life and
provided for imposition of sentence of death only in exceptional cases for
special reasons. The second and the still more important circumstance which has
supervened since the decision in Jagmohan's case is the new dimension of
Articles 14 and 21 unfolded by the Supreme Court in Maneka Gandhi v. Union of
India (1978) 2 SCR 663. This new dimension of Articles 14 and 21 renders the
death penalty provided in section 302 of the Indian Penal Code read with section
354(3) of the Code of Criminal Procedure vulnerable to attack on a ground not
available at the time when Jagmohan's case was decided. Furthermore, since
Jagmohan's case was decided, India has ratified two international instruments on
Human Rights and particularly the International Covenant on civil and political
rights.

       [259 G-H, 260 A-D]

     Jagmohan v. State of U.P. A.I.R. 1973 SC 947, dissented from.

     State of Washington v. Dawson and Company 264 U.S. 646; 68 L. Edn. 219
dissenting judgment quoted with approval. Maneka Gandhi v. Union of India,
[1978] 2 SCR 663 applied.

     2:1. The constitutional validity of the death penalty provided as an
alternative punishment in section 302 of the Indian Penal Code read with section
354 sub-section (3) of the Code of Criminal Procedure cannot be sustained. Death
penalty does not serve any social purpose or advance any constitutional value
and is totally arbitrary and unreasonable so as be violative of Articles 14, 19,
and 21 of the Constitution, [256 F, 257 E]

     Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC

947. not followed.

154

     2:2 The culture and ethos of the nation as gathered from its history, its
tradition and its literature would clearly be relevant factors in adjudging the
constitutionality of death penalty and so would the ideals and values embodied
in the Constitution which lays down the basic frame-work of the social and
political structure of the country, and which sets out the objectives and goals
to be pursued by the people in a common endeavour to secure happiness and
welfare of every member of the society. So also standards or norms set by
International organisations and bodies have relevance in determining the
constitutional validity of death penalty and equally important in construing and
applying the equivocal formulae of the Constitution would be the "wealth of non-
legal learning and experience that encircles and illuminates" the topic of death
penalty. [261 B-E]

     2:3. The objective of the United Nations has been and that is the standard
set by the world body that capital punishment should be abolished in all
countries. This normative standard set by the world body must be taken into
account in determining whether the death penalty can be regarded as arbitrary,
excessive and unreasonable so as to be constitutionally invalid. [268 B-C]

     2:4. The Constitution of India is a unique document. It is not a mere
pedantic legal text but it embodies certain human values, cherished principles,
and spiritual norms and recognises and upholds the dignity of man. It accepts
the individual as the focal point of all development and regards his material,
moral and spiritual development as the chief concern of its various provisions.
It does not treat the individual as a cog in the mighty all-powerful machine of
the State but places him at the centre of the constitutional scheme and focuses
on the fullest development of his personality. The several provisions enacted in
the constitutions for the purpose of ensuring the dignity of the individual and
providing for his material, moral and spiritual development would be meaningless
and ineffectual unless there is rule of law to invest them with life and force.

           [268 C-D, G-H]

     2:5. The rule of law permeates the entire fabric of the Constitution and
indeed forms one of its basic features. The rule of law excludes arbitrariness;
its postulate is 'intelligence without passion' and 'reason freed from desire'.
Wherever we find arbitrariness or unreasonableness there is denial of the rule
of law. "Law" in the context of the rule of law, does not mean any law enacted
by the legislative authority, howsoever arbitrary or despotic it may be.
Otherwise even under a dictatorship it would be possible to say that there is
rule of law, because every law made by the dictator howsoever arbitrary and
unreasonable has to be obeyed and every action has to be taken in conformity
with such law. In such a case too even where the political set up is
dictatorial, it is law that governs the relationship between men and men and
between men and the State. But still it is not a rule of law as understood in
modern jurisprudence because in jurisprudential terms, the law itself in such a
case being an emanation from the absolute will of the dictator, it is in effect
and substance the rule of man and not of law which prevails in such a situation.
What is a necessary element of the rule of law is that the law must not be
arbitrary and irrational and it must satisfy the test of reason and the
democratic form of polity seeks to ensure this element by making the framers of
the law accountable to the people. [269 A-E] 155

     2:6. The rule of law has much greater vitality under our Constitution than
it has in other countries like the United Kingdom which has no constitutionally
enacted Fundamental Rights. The rule of law has really three basic and
fundamental assumptions; one is that law making must be essentially in the hands
of a democratically elected legislature, subject of course to any power in the
executive in an emergent situation to promulgate ordinance effective for a short
duration while the legislation is not in session as also to enact delegated
legislation in accordance with the guidelines laid down by the legislature; the
other is that, even in the hands of a democratically elected legislature, there
should not be unfettered legislative power; and lastly there must be an
independent judiciary to protect the citizen against excesses of executive and
legislative power and we have in our country all these three elements essential
to the rule of law. It is plain and indisputable that under our Constitution law
cannot be arbitrary or irrational and if it is, it would be clearly invalid,
whether under Article 14 or Article 19 or Article 21, whichever be applicable.
[275 E-H. 276 A-B] Minerva Mill's case [1981] 1 SCR 206; Maneka Gandhi's case
[1978] 2 SCR 621; Airport Authority of India's case [1979] 3 SCR 1014; A.K.
Gopalan's case [1950] 3 SCR 88; F.C. Mullen's case [1981] 2 SCR 516 referred to.
2:7. The Constitution does not in so many terms prohibit capital punishment. In
fact, it recognises death sentence as one of the penalties which may be imposed
by law. Apart from Article 21, Clause (C) of Article 72 also recognises the
possibility of a sentence of death being imposed on a person convicted of an
offence inasmuch as it provides that the President shall have the power to
suspend, remit or commute the sentence of any person who is convicted of an
offence and sentenced to death. Therefore, the imposition of death sentence for
conviction of an offence is not in all cases forbidden by the Constitution. But
that does not mean that the infliction of death penalty is blessed by the
Constitution or that it has the imprimatur or seal of approval of the
Constitution. The Constitution is not a transient document but it is meant to
endure for a long time to come and during its life, situations may arise where
death penalty may be found to serve a social purpose and its prescription may
not be liable to be regarded as arbitrary or unreasonable and therefore to meet
such situations, the Constitution had to make a provision and this it did in
Article 21 and clause (c) of Article 72 so that, even where death penalty is
prescribed by any law and it is otherwise not unconstitutional, it must still
comply with the requirement of Article 21 and it would be subject to the
clemency power of the President under clause (c) of Article 72. [276 D-H, 277
A-B]

     2:8. From the legislative history of the relevant provisions of the Indian
Penal Code and the Code of Criminal Procedure, it is clear that in our country
there has been a gradual shift against the imposition of death penalty. Life
sentence is now the rule and it is only in exceptional cases, for special
reasons, that death sentence can be imposed. The legislature has however not
indicated what are the special reasons for which departure can be made from the
normal rule and death penalty may be inflicted. The legislature has not given
any guidance as to what are those exceptional cases in which, deviating from the
normal 156

rule, death sentence may be imposed. This is left entirely to the unguided
discretion of the court, a feature, which has lethal consequences so far as the
constitutionality of death penalty is concerned. [277 C-D, 278 E-G] Rajendra
Prasad v. State of U.P. [1979] 3 S.C.R. 646, referred to.

     2:9. The problem of constitutional validity of death penalty cannot be
appreciated in its proper perspective without an adequate understanding of the
true nature of death penalty and what it involves in terms of human anguish and
suffering. In the first place, death penalty is irrevocable; it cannot be
recalled. It extinguishes the flame of life for ever and is plainly destructive
of the right to life, the most precious right of all, a right without which
enjoyment of no other rights is possible. If a person is sentenced to
imprisonment, even if it be for life, and subsequently it is found that he was
innocent and was wrongly convicted, he can be set free. Of course, the
imprisonment that he has suffered till then cannot be undone and the time he has
spent in the prison cannot be given back to him in specie but he can come back
and be restored to normal life with his honour vindicated, if he is found
innocent. But that is not possible where a person has been wrongly convicted and
sentenced to death and put out of existence in pursuance of the sentence of
death. In his case, even if any mistake is subsequently discovered, it will be
too late, in every way and for every purpose it will be too late, for he cannot
be brought back to life. The execution of the sentence of death in such a case
makes miscarriage of justice irrevocable. [281 F-H, 282 A-D] 2:10. Howsoever
careful may be the procedural safeguards, erected by the law before death
penalty can be imposed, it is impossible to eliminate the chance of judicial
error. No possible judicial safeguards can prevent conviction of the innocent.
It is indeed a very live possibility and it is not at all unlikely that so long
as death penalty remains a constitutionaly valid alternative, the Court or the
State acting through the instrumentality of the Court may have on its conscience
the blood of an innocent man. [283 D-E. G-H]

     2:11. Judicial error in imposition of death penalty would indeed be a crime
beyond punishment. This is the drastic nature of death penalty, terrifying in
its consequences, which has to be taken into account in determining its
constitutional validity. Death penalty is barbaric and inhuman in its effect,
mental and physical upon the condemned man and is positively cruel. Its
psychological effect on the prisoner in the Death Row is disastrous. [284 E-F]

     Furman v. Georgia 408 US 238; In Re Kemmler 136 US 436; In Re Medley 134 US
160; quoted with approval. 2:12. Penological goals also do not justify the
imposition of death penalty for the offence of murder. The prevailing standards
of human decency are also incompatible with death penalty. The standards of
human decency with reference to which the proportionality of the punishment to
the offence is required to be judged vary from society to society depending on
the cultural and spiritual 157

tradition of the society, its history and philosophy and its sense of moral and
ethical values. [302 A-B] Moreover, it is difficult to see how death penalty can
be regarded as proportionate to the offence of murder when legislatively it has
been ordained that life sentence shall be the rule and it is only in exceptional
cases for special reasons that death penalty may be imposed. It is obvious from
the provision enacted in section 354 (3) of the Code of Criminal Procedure that
death sentence is legislatively regarded as disproportionate and excessive in
most cases of murder and it is only in exceptional cases that it can at all be
contended that death sentence is proportionate to the offence of murder. But,
then the legislature does not indicate as to what are those exceptional cases in
which death sentence may be regarded as proportionate to the offence and,
therefore, reasonble and just. Death penalty cannot be regarded as proportionate
to the offence of murder, merely because the murder is brutal, heinous or
shocking. The nature and magnitude of the offence or the motive and purposes
underlying it or the manner and extent of its commission cannot have any
relevance to the proportionality of death penalty to the offence. [304 H, 305
A-D, 306 D-E]

     2:13 The historical course through which death penalty has passed in the
last 150 years shows that the theory that death penalty acts as a greater
deterrent than life imprisonment is wholly unfounded. Even the various studies
carried out clearly establish beyond doubt that death penalty does not have any
special deterrent effect which life sentence does not possess and that in any
event there is no evidence at all to suggest that death penalty has any such
special deterrent effect. [316 A, 321 G-H] 2:14. Death penalty as provided under
section 302 of the Indian Penal Code read with section 354 sub-section (3) of
the Code of Criminal Procedure, 1973 does not sub-serve any legitimate end of
punishment, since by killing the murderer it totally rejects the reformation
purpose and it has no additional deterrent effect which life sentence does not
possess and it is therefore not justified by the deterrence theory of
punishment. Though retribution or denunciation is regarded by some as a proper
end of punishment, it cannot have any legitimate place in an enlightened
philosophy of punishment. Therefore, death penalty has no rational penological
purpose and it is arbitrary and irrational and hence violative of Articles 14
and 21 of the Constitution.

         [340 D-F]

     2:15. On a plain reading of section 302 of the Indian Penal Code which
provides death penalty as alternative punishment of murder it is clear that it
leaves it entirely to the discretion of the Court whether to impose death
sentence or to award only life imprisonment to an accused convicted of the
offence of murder. Section 302 does not lay down any standards or principles to
guide the discretion of the Court in the matter of imposition of death penalty.
The critical choice between physical liquidation and life long incarceration is
left to the discretion of the Court and no legislative light is shed as to how
this

158

deadly discretion is to be exercised. The court is left free to navigate in an
unchartered sea without any compass or directional guidance. [341 A-C]

     2:16. Actually section 354 (3) of the Criminal Procedure Code makes the
exercise of discretion more difficult and uncertain. It is left to the Judge to
grope in the dark for himself and in the exercise of his unguided and unfettered
discretion decide what reasons may be considered as 'special reasons' justifying
award of death penalty and whether in a given case any such special reasons
exist which should persuade the Court to depart from the normal rule and inflict
death penalty on the accused. There being no legislative policy or principle to
guide the Court in exercising its discretion in this delicate and sensitive area
of life and death, the exercise of discretion of the Court is bound to vary from
judge to judge. What may appear as special reasons to one judge may not so
appear to another and the decision in a given case whether to impose the death
sentence or to let off the offender only with life imprisonment would, to a
large extent, depend upon who is the judge called upon to make the decision. The
reason for his uncertainty in the sentencing process is two-fold. Firstly, the
nature of the sentencing process is such that it involves a highly delicate task
calling for skills and talents very much different from those ordinarily
expected of lawyers. Even if considerations relevant to capital sentencing were
provided by the legislature, it would be a difficult exercise for the judges to
decide whether to impose the death penalty or to award the life sentence. But
without any such guidelines given by the legislature, the task of the judges
becomes much more arbitrary and the sentencing decision is bound to vary with
each judge. Secondly, when unguided discretion is conferred upon the Court to
choose between life and death, by providing a totally vague and indefinite
criterion of 'special reasons' without laying down any principles or guidelines
for determining what should be considered to be 'special reasons', the choice is
bound to be influenced by the subjective philosophy of the judge called upon to
pass the sentence and on his value system and social philosophy will depend
whether the accused shall live or die. No doubt the judge will have to give
'special reasons' if he opts in favour of inflicting the death penalty, but that
does not eliminate arbitrariness and caprice, firstly because there being no
guidelines provided by the legislature, the reasons which may appeal to one
judge as 'special reasons' may not appeal to another, and secondly, because
reasons can always be found for a conclusion that the judge instinctively wishes
to reach and the judge can bona fide and conscientiously find such reasons to be
'special reasons'. It is now recognised on all hands that judicial conscience is
not a fixed conscience; it varies from judge to judge depending upon his
attitudes and approaches, his predilections and prejudices, his habits of mind
and thought and in short all that goes with the expression "social philosophy".
Further, the various decisions in which special reasons have been given singly
and cumulatively indicate not merely that there is an enormous potential of
arbitrary award of death penalty by the High Court and the Supreme Court but
that, in fact, death sentence have been awarded arbitrarily and freakishly.

           [341 G, E-H, 342 E-H.

343 A-B, 353 E-F]

     2:17. But where the discretion granted to the Court is to choose between
life and death without any standards or guide-lines provided by the legislature,

159

the death penalty does become arbitrary and unreasonable. The death penalty is
qualitatively different from a sentence of imprisonment. Whether a sentence of
imprisonment is for two yeaes or five years or for life, it is qualitatively the
same, namely, a sentence of imprisonment, but the death penalty is totally of
different. It is irreversible; it is beyond recall or reparation; it
extinguishes life. It is the choice between life and death which the court is
required to make and this is left to its sole discretion unaided and unguided by
any legislative yardstick to determine the choice. [356 G-H. 357 A-B]

     2:18. The only yardstick which may be said to have been provided by the
legislature is that life sentence shall be the rule and it is only in
exceptional cases for special reasons that death penalty may be awarded, but it
is no where indicated by the legislature as to what should be regarded as
'special reasons' justifying imposition of death penalty. The awesome and
fearful discretion whether to kill a man or to let him live is vested in the
Court and the Court is called upon to exercise this discretion guided only by
its own perception of what may be regarded as 'special reasons' without any
light shed by the legislature. It is difficult to appreciate how a law which
confers such unguided discretion on the Court without any standards or
guidelines on so vital an issue as the choice between life and death can be
regarded as constitutionally valid. [357B- D]

     2:19. Death penalty in its actual operation is discriminatory, for it
strikes mostly against the poor and deprived sections of the community and the
rich and the affluent usually escape from its clutches. This circumstance also
adds to the arbitrary and capricious nature of the death penalty and renders it
unconstitutional as being violative of Articles 14 and 21. [366G-H]

     3:1. When a law is challenged on the ground that it imposes restrictions on
the freedom guaranteed by one or the other sub-clause of clause (1) of Article
19 and the restrictions are shown to exist by the petitioner, the burden of
estabilshing that the restrictions fall within any of the permissive clauses (2)
to (6) which may be applicable, must rest upon the State. The State would have
to produce material for satisfying the Court that the restrictions imposed by
the impugned law fall with the appropriate permissive clause from out of clauses
(2) to (6) of Article 19 Of course there may be cases where the nature of the
legislation and the restrictions imposed by it may be such that the Court may,
without more, even in the absence of any positive material produced by the
State, conclude that the restrictions fall within the permissible category, as
for example, where a law is enacted by the legislature for giving effect to one
of the Directive Principles of State Policy and prima facie, the restrictions
imposed by it do not appear to be arbitrary or excessive. Where such is the
position, the burden would again shift and it would be for the petitioner to
show that the restrictions are arbitrary or excessive and go beyond what is
required in public interest. But once it is shown by the petitioner that the
impugned law imposes restrictions which infringe one or the other sub-clause of
clause (1) of Article 19, the burden of showing that such restrictions are
reasonable and fall within the permissible category must be on the State and
this burden the State may discharge either by producing socio economic data
before the Court or on consideration of the provisions in the impugned

160

law read in the light of the constitutional goals set out in the Directive
Principles of State Policy. The test to be applied for the purpose of
determining whether the restrictions imposed by the impugned law are reasonable
or not cannot be cast in a rigid formula of universal application. The nature of
the right alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil sought to be remedied,
the value of human life. the disproportion of the imposition, the social
philosophy of the Constitution and the prevailing conditions at the time would
all enter into the judicial verdict. And in evaluating such elusive factors and
forming his own conception of what is reasonable in all the circumstances of a
given case, it is inevitable that the social philosophy and the scale of values
of the judge participating in the decision would play a very important part.
[293 G-H, 294 A-G]

     State of Madras v. V.J. Row [1952] SCR 597. Shagir Ahmed v. State of U.P.
[1955] 1 SCR 707 followed. Khyerbari Tea Co. v. State of Assam [1964] 5 SCR 975;
B. Banerjee v. Anita Pan [1975] 2 SCR 774; Ram Krishna Dalmia v. S.R. Tandolkar
& Ors. [1959] SCR 279; State of Bombay v. R.M.D. Chamarbaugwala [1957] SCR 874;
Mohd. Hanif v. State of Bihar [1959] SCR 629; discussed and distinguished.

     Pathumma v. State of Kerala [1978] 2 SCR 537 referred to.

     3:2. The position in regard to onus of proof in a case where the challenge
is under Article 21 is much clearer and much more free from or doubt or debate
than in a case where the complaint is of violation of clause (1) of Article 19.
Wherever there is deprivation of life, i.e. not only physical existence, but
also use of any faculty or limb through which life is enjoyed and basic human
dignity, or of any aspect of personal liberty, the burden must rest on the State
to establish by producing adequate material or otherwise that the procedure
prescribed for such deprivation is not arbitrary but is reasonable, fair and
just. Where therefore a law authorises deprivation of the right to life, the
reasonableness, fairness and justness of the procedure prescribed by it for such
deprivation must be established by the State. The burden must lie upon the State
to show that death penalty is not arbitrary and unreasonable and serves a
legitimate social purpose, despite the possibility of judicial error in
convicting and sentencing an innocent man and the brutality and pain, mental as
well as physical, which death sentence invariably inflicts upon the condemned
prisoner. The State must place the necesary material on record for the purpose
of discharging this burden which lies upon it and if it fails to show by
presenting adequate evidence before the Court or otherwise that death penalty is
not arbitrary and unreasonable and does serve a legitimate social purpose, the
imposition of death penalty under section 302 of the Indian Penal Code read with
section 354 sub-section (3) of the Code of Criminal Procedure would have to be
struck down as violative of the protection of Article

21. [295 A-C, 296 D-E]

     3:3. There is a presumption in favour of the constitutionality of a statute
and the burden of showing that it is arbitrary or discriminatory lies upon the
petitioner, because it must be presumed that the legislature understands and

161

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

JUDGMENT:

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

     Appeal by special leave from the Judgment and Order dated the 14th August,
1978 of the Punjab & Haryana High Court in Criminal Appeal No. 234 of 1978)

WRIT PETITIONS NOS. 564, 165, 179, 168, 434, 89, 754, 756 & 976 of 1979.

     (Under Article 32 of the Constitution of India) AND

     Special Leave Petition (Criminal) No. 1732 of 1979 R.K. Jain, R.P. Singh,
Shiv Kumar Sharma Suman, Kapoor and Sukumar Sahu for the Petitioner in W.P.
564/79. Dr. Y.S. Chitale, Mukul Mudgal and A.K. Ganguli for the Petitioner in
W.P. No. 165 of 1979.

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

     WP. Nos. 168 & 89 of 1979; Jail Petitions.

162

     H.K. Puri, A.C. for the Appellant in Crl. Appeal. S.S. Khanduja and Lalit
Kumar Gupta for the Petitioner in W.P. No. 434 of 1979.

     L.N. Gupta for the Petitioner in S.L.P.

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

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

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

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

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

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

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

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

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

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

1. Andhra Pradesh : P. Ramachandra Reddy, Advocate General A.P. Rao and G.

Narayana

163

2. Gujarat : D.V. Patel, (Maharashtra)

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

4. Jammu & : Altaf Ahmed

   Kashmir

5. Madhya : S.K. Gambhir

Pradesh

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

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

8. Tamil Nadu : A.V. Rangam

9. West Bengal : Sukumar Ghosh and G.S. Chatterjee

     The following Judgments were delivered:

     SARKARIA, J. This reference to the Constitution Bench raises a question in
regard to the constitutional validity of death penalty for murder provided in
Section 302, Penal Code, and the sentencing procedure embodied in sub-section
(3) of Section 354 of the Code of Criminal Procedure, 1973. The reference has
arisen in these circumstances: Bachan Singh, appellant in Criminal Appeal No.
273 of 1979, was tried and convicted and sentenced to death under Section 302,
Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the
Sessions Judge. The High Court confirmed his death sentence and dismissed his
appeal.

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

     Shri H.K. Puri, appearing as Amicus Curiae on behalf of the appellant,
Bachan Singh, in Criminal Appeal No. 273 of 1979.

164

contended that in view of the ratio of Rajendra Prasad v. State of U.P.,(1) the
Courts below were not competent to impose the extreme penalty of death on the
appellant. It was submitted that neither the circumstance that the appellant was
previously convicted for murder and committed these murder after he had served
out the life sentence in the earlier case, not the fact that these three murders
were extremely heinous and inhuman, constitutes a "special reason" for imposing
the death sentence within the meaning of Section 354(3) of the Code of Criminal
Procedure 1973. Reliance for this argument was placed on Rajendra Prasad (ibid)
which according to the counsel, was on facts very similar, if not identical, to
that case.

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

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

   "The main focus of our judgment is on this poignant gap in 'human rights
jurisprudence' within the limits of the Penal Code, impregnated by the
Constitution. To put it pithily, a world order voicing the worth of the human
person, a cultural legacy charged with compassion, an interpretative liberation
from colonial callousness to life and liberty, a concern for social justice as
setting the sights of individual justice, interest with the inherited text of
the Penal Code to yield the goals desiderated by the Preamble and Articles 14,
19 and 21."

   According to Kailasam, J., the challenge to the award of the death sentence
as violative of Articles 19, 14 and 21, was repelled by the Constitution Bench
in Jagmohan's case.

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

   "The impossibility of laying down standards (in the matter of sentencing) is
at the very core of criminal law as administered in India which invests the
judges with a

165

     very wide discretion in the matter of fixing the degree of punishment and
that this discretion in the matter of sentence in liable to be corrected by
superior Courts... The exercise of judicial discretion on well recognised
principles is, in the final analysis, the safest possible safeguard for the
accused." In Rajendra Prasad, the majority decision characterised the above
observations in Jagmohan as: "incidental observations without concentration on
the sentencing criteria", and said that they are not the ratio of the decision,
adding. "Judgments are not Bible for every line to be venerated."

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

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

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

   "The only correct approach is to read into Section

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

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

166

be given the amended section would be unconstitutional unless the "sentencing
sector is made most restrictive and least vagarious".

     (v) In Rajendra Prasad, the majority has held that: "Such extraordinary
grounds alone constitutionally qualify as special reasons as leave on option to
the Court but to execute the offender if State and society are to survive. One
stroke of murder hardly qualifies for this drastic requirement, however,
gruesome the killing or pathetic the situation, unless the inherent testimony
coming from that act is irresistible that the murderous appetite of the convict
is too chronic and deadly that ordered life in a given locality or society or in
prison itself would be gone if this man were now or later to be at large. If he
is an irredeemable, like a bloodthirsty tiger, he has to quit his terrestrial
tenancy."

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

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

   (vi) Kailasam, J. was further of the opinion that it is equally beyond the
functions of a Court to evolve "working rules for imposition of death sentence
bearing the markings of enlightened flexibility and social sensibility" or to
make law "by cross-fertilisation 167

     from sociology, history, cultural anthropology and current national perils
and developmental goals and, above all, constitutional currents". This function,
in his view, belongs only to Parliament. The Court must administer the law as it
stands.

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

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

     In the meanwhile, several persons convicted of murders and sentenced to
death, filed writ petitions (namely, Writ Petitions 564, 165, 179, 434, 89, 754,
756 and 976 of 1979) under Article 32 of the Constitution directly challenging
the constitutional validity of the death penalty provided in Section 302 of the
Indian Penal Code for the offence of murder, and the sentencing procedure
provided in Section 354 (3) of the Code of Criminal Procedure, 1974. That is
how, the matter has now come up before this larger Bench of five Judges.

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

168

it is argued, the seven-Judge decision of this Court in Maneka Gandhi v. Union
of India(1) has given a new interpretative dimension of the provisions of
Articles 21, 19 and 14 and their inter-relationship, and according to this new
interpretation every law of punitive detention both in its procedural and
substantive aspects must pass the test of all the three Articles. It is stressed
that an argument founded on this expansive interpretation of these Articles was
not available when Jagmohan was decided. Thirdly, it is submitted that India has
since acceded to the international Covenant of Civil and Political Rights
adopted by the General Assembly of the United Nations, which came into force in
December 16, 1976. By virtue of this Covenant. India and the other 47 countries
who are a party to it, stand committed to a policy for abolition of the 'death
penalty'.

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

     The learned Solicitor-General, Shri Soli Sorabji opposed the request of
Shri Garg for referring the matter to a larger Bench because such a course would
only mean avoidable delay in disposal of the matter. At the same time, the
learned counsel made it clear that since the constitutionality of the death
penalty for murder was now sought to be challenged on additional arguments based
on subsequent events and changes in law, he would have no objection on the
ground of stare decisis, to a fresh consideration of the whole problem by this
very Bench. In view of the concession made by Shri Sorabji, we proceeded to hear
the counsel for the parties at length, and to deal afresh with the
constitutional questions concerning death penalty raised in these writ
petitions. We have heard the arguments of Shri R.K. Garg. appearing for the
writ-petitioners in Writ Petition No. 564/79 for more than three weeks and also
those of Dr. L.M. Singhvi, Dr. Chitaley and

169

S/Shri Mukhoty, Dave and R.K. Jain, appearing for interveners or for the other
writ-petitioners. We have also heard the arguments of Shri Soli Sorabji,
Solicitor-General, appearing for the Union of India and Shri Patel appearing for
the State of Maharashtra and the other counsel appearing for the respondents.

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

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

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

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

     Before dealing with the contentions canvassed, it will be useful to have a
short survey of the legislative history of the provisions of the Penal Code
which permit the imposition of death penalty for certain offences. The Indian
Penal Code was drafted by the First Indian Law Commission presided over by Mr.
Macaulay. The draft underwent further revision at the hands of well-known
jurists, like Sir Barnes Peacock, and was completed in 1850. The Indian Penal
Code was

170

passed by the then Legislature on October 6, 1860 and was enacted as Act No XLV
of 1860.

     Section 53 of the Penal Code enumerates punishments to which offenders are
liable under the provisions of this Code. Clause Firstly of the Section mentions
'Death' as one of such punishments. Regarding 'death' as a punishment, the
authors of the Code say: "We are convinced that it ought to be very sparingly
inflicted, and we propose to employ it only in cases where either murder or the
highest offence against the State has been committed." Accordingly, under the
Code, death is the punishment that must be awarded for murder by a person under
sentence of imprisonment for life (Section 303). This apart, the Penal Code
prescribes 'death' as an alternative punishment to which the offenders may be
sentenced, for the following seven offences: (1) Waging war against the
Government of India. (s. 121)

     (2) Abetting mutiny actually committed. (s. 132) (3) Giving or fabricating
false evidence upon which an innocent person suffers death. (s. 194)

     (4) Murder which may be punished with death or life imprisonment. (s. 302)

     (5) Abetment of suicide of a minor or insane, or intoxicated person. (s.
305)

     (6) Dacoity accompanied with murder. (s. 396) (7) Attempt to murder by a
person under sentence of imprisonment for life if hurt is caused. (s. 307) In
the instant cases, the impugned provision of the Indian Penal Code is Section
302 which says: "Whoever commits murder shall be punished with death, or
imprisonment for life, and also be liable to fine." The related provisions are
contained in Sections 299 and 300. Section 299 defines 'culpable homicide'.
Section 300 defines 'murder'. Its material part runs as follows: "Except in the
cases hereinafter excepted, culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing death, or 171

     Secondly-If it is done with the intention of causing such bodily injury as
the offender knows to be likely to cause death of the person to whom the harm is
caused, or Thirdly-If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or

     Fourthly-If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death, or such bodily injury
as is likely to cause death, and commits, such act without any excuse for
incurring the risk of causing death or such injury as aforesaid."

     The first contention of Shri Garg is that the provision of death penalty in
Section 302, Penal Code offends Article 19 of the Constitution. It is submitted
that the right to live is basic to the enjoyment of all the six freedoms
guaranteed in clauses (a) to (e) and (g) of Article 19 (1) of the Constitution
and death penalty puts an end to all these freedoms: that since death penalty
serves no social purpose and its value as a deterrent remains unproven and it
defiles the dignity of the individual so solemnly vouchsafed in the Preamble of
the Constitution, its imposition must be regarded as an 'unreasonable
restriction' amounting to total prohibition, on the six freedoms guaranteed in
Article 19 (1).

     Article 19, as in force today, reads as under: "19 (1). All citizens shall
have the right- (a) to freedom of speech and expression;

  (b) to assemble peaceably and without arms; (c) to form associations or
unions;

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

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

   (f) .....................;

172

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

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

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

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

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

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

173

     ferred by the said sub-clause, and in particular, nothing in the said sub-
clause, shall affect the operation of any existing law in so far as it relates
to, or prevent the State from making any law relating to,-

     (i) the professional or technical qualifications necessary for practising
any profession or carrying on any occupation, trade or business, or (ii) the
carying on by the State, or by a corporation owned or controlled by the State,
of any trade, business, industry or service, whether to the exclusion, complete
or partial, of citizens or otherwise."

     It will be seen that the first part of the Article declares the rights in
clause (1) comprising of six sub- clauses namely, (a) to (e) and (g). The second
part of the Article in its five clauses (2) to (6) specifies the limits upto
which the abridgement of the rights declared in one or more of the sub-clauses
of clause (1), may be permitted. Broadly speaking, Article 19 is intended to
protect the rights to the freedoms specifically enumerated in the six sub-
clauses of clause (1) against State action, other than in the legitimate
exercise of its power to regulate these rights in the public interest relating
to heads specified in clauses (2) to (6). The six fundamental freedoms
guaranteed under Article 19 (1) are not absolute rights. Firstly, they are
subject to inherent restraints stemming from the reciprocal obligation of one
member of a civil society to so use his rights as not to infringe or injure
similar rights of another. This is on the principle sic utere tuo ut alienum non
laedas. Secondly, under clauses (2) to (6) these rights have been expressly made
subject to the power of the State to impose reasonable restrictions, which may
even extend to prohibition, on the exercise of those rights. The power, if
properly exercised, is itself a safeguard of the freedoms guaranteed in clause
(1). The conferment of this power is founded on the fundamental truth that
uncontrolled liberty entirely freed from restraint, degenerates into a licence,
leading to anarchy and chaos; that libertine pursuit of liberty, absolutely
free, and free for all, may mean liberticide for all. "Liberty has, therefore,"
as

174

Justice Patanjali Sastri put it, "to be limited in order to be effectively
possessed."

     It is important to note that whereas Article 21 expressly deals with the
right to life and personal liberty, Article 19 does not. The right to life is
not one of the rights mentioned in Article 19 (1).

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

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

175

of those words activities which may be looked upon with disfavour by the State
or the Court as injurious to public morality or public interest. Speaking for
the Constitution Bench, S.R. Das, C.J. repelled this contention, in these terms:

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

This approach to the problem still holds the field. The observations in
Chamarbaugwala, extracted above, were recently quoted with approval by V.R.
Krishna Iyer., J., while delivering the judgment of the Bench in Fatehchand
Himmatlal & Ors. v. State of Maharashtra(1). In A.K. Gopalan v. The State of
Madras (2), all the six learned Judges constituting the Bench held that punitive
detention or imprisonment awarded as punishment after conviction for an offence
under the Indian Penal Code is outside the scope of Article 19, although this
conclusion was reached by them by adopting more or less different approaches to
the problem.

     It was contended on behalf of A.K. Gopalan that since the preventive
detention order results in the detention of the detenu in a cell, his rights
specified in clauses (a) to (e) and (g) of Article 19 (1) have been infringed.
176

     Kania, C J. rejected this argument, inter alia, on these grounds:

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

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

     (ii) Judged by the test of direct and indirect effect on the rights
referred to in article 19 (1), the Penal Code is not a law imposing restrictions
on these rights. The test is that "the legislation to be examined must be
directly in respect of one of the rights mentioned in the sub-clauses. If there
is a legislation directly attempting to control a citizen's freedom of speech or
expression or his right to assemble peaceably and without arms, etc., the
question whether that legislation is saved by the relevant saving clause of
Article 19 will arise. If, however, the legislation is not directly in respect
of any of these subjects, but as a result of the operation of other legislation,
for instance, for punitive or preventive detention, his right under any of these
sub- clauses is abridged, the question of the application of Article 19 does not
arise. The true approach is only to consider the directness of the legislation
and not what will be the result of the detention otherwise valid, on the mode of
the detenu's life." (Pages 100-101).

177

     (iii)"The contents and subject-matter of articles 19 and 21 are thus not
the same..." (Page 105). "Article 19 (5) cannot apply to a substantive law
depriving a citizen of personal liberty." "Article 19 (1) does not purport to
cover all aspects of liberty or of personal liberty. Personal liberty would
primarily mean liberty of the physical body. The rights given under article 19
(1) do not directly come under that description. In that Article only certain
phases of liberty are dealt with". (Page 106) "In my opinion therefore, Article
19 should be read as a separate complete Article". (Page 107).

     Patanjali Sastri, J., also, opined "that lawful deprivation of personal
liberty on conviction and sentence for committing a crime, or by a lawful order
of preventive detention is "not within the purview of Article 19 at all, but is
dealt with by the succeeding Articles 20 and 21." (Page 192). In tune with
Kania, C.J., the learned Judge observed: "A construction which would bring
within Article 19 imprisonment in punishment of a crime committed or in
prevention of a crime threatened would, as it seems to me, make a reductio ad
absurdum of that provision. If imprisonment were to be regarded as a
'restriction' of the right mentioned in article 19 (1) (d), it would equally be
a restriction on the rights mentioned by the other sub-clauses of clause (1),
with the result that all penal laws providing for imprisonment as a mode of
punishment would have to run the gauntlet of clauses (2) to (6) before their
validity could be accepted. For instance, the law which imprisons for theft
would on that view, fall to be justified under clause (2) as a law sanctioning
restriction of freedom of speech and expression." (Page 192).

     "Article 19 confers the rights therein specified only on the citizens of
India, while article 21 extends the protection of life and personal liberty to
all persons citizens and non-citizens alike. Thus, the two Articles do not
operate in a coterminous field." (Page 193). "(Personal liberty) was used in
Article 21 as a sense which excludes the freedoms dealt in Article 19 ....."
Rejecting the argument of the Attorney General, the learned Judge held that
clauses (4) to (7) of Article 22 do not form a complete

178

Code and that "the language of Article 21 is perfectly general and covers
deprivation of personal liberty or incarceration, both for punitive and
preventive reasons." (Page 207).

     Mahajan, J., however, adopted a different approach. In his judgment, "an
examination of the provisions of Article 22 clearly suggests that the intention
was to make it self- contained as regards the law of preventive detention and
that the validity of a law on the subject of preventive detention cannot be
examined or controlled either by the provisions of Article 21 or by the
provisions of Article 19(5)." (Page 229).

     Mukerjee, J. explained the relative scope of the Articles in this group,
thus: "To me it seems that Article 19 of the Constitution gives a list of
individual liberties and prescribes in the various clauses the restraints that
may be placed upon them by law so that they may not conflict with public welfare
or general morality. On the other hand, Articles 20, 21 and 22 are primarily
concerned with penal enactments or other laws under which personal safety or
liberty of persons could be taken away in the interests of the society and they
set down the limits within which the State control should be exercised. In my
opinion, the group of articles 20 to 22 embody the entire protection guaranteed
by the Constitution in relation to deprivation of life and personal liberty both
with regard to substantive as well as to procedural law." (Page 255).

     "The only proper way of avoiding these anomalies is to interpret the two
provisions (articles 19 and 21) as applying to different subjects. It is also
unnecessary to enter into a discussion on the question...as to whether article
22 by itself is a self-contained Code with regard to the law of Preventive
Detention." (Page 257). S.R. Das, J., also, rejected the argument that the whole
of the Indian Penal Code is a law imposing reasonable restriction on the rights
conferred by Article 19 (1), with these observations (at Page 303) :

   "To say that every crime undermines the security of the State and, therefore,
every section of the Indian Penal Code, irrespective of whether it has any
reference to speech or expression, is a law within the meaning of this clause is
wholly unconvincing and betrays only a vain and forlorn

179

     attempt to find an explanation for meeting the argument that any conviction
by a Court of law must necessarily infringe article 19 (1) (a). There can be no
getting away from the fact that a detention as a result of a conviction impairs
the freedom of speech for beyond what is permissible under clause (2) of article
19. Likewise, a detention on lawful conviction impairs each of the other
personal rights mentioned in sub-clauses (3) to (6). The argument that every
section of the Indian Penal Code irrespective of whether it has any reference to
any of the rights referred to in sub- clauses (b) to (e) and (g) is a law
imposing reasonable restriction on those several rights has not even the merit
of plausibility. There can be no doubt that a detention as a result of lawful
conviction must necessarily impair the fundamental personal rights guaranteed by
article 19 (1) far beyond what is permissible under clauses (2) to (6) of that
article and yet nobody can think of questioning the validity of the detention or
of the section of the Indian Penal Code under which the sentence was passed."

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

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

     (iii) The learned Judge also held that "article 19 protects some of the
important attributes of personal liberty as independent rights and the
expression 'personal liberty' has been used in article 21 as a compendious term
including within its meaning all the varieties of rights which go to make up the
personal liberties of men." (Page 299).

     Fazal Ali, J. dissented from the majority. In his opinion: "It cannot be
said that articles 19, 20, 21 and 22 do not to some extent overlap each other.
The case of a person who is convicted of an

180

offence will come under article 20 and 21 and also under article 22 so far as
his arrest and detention in custody before trial are concerned. Preventive
detention, which is dealt with in article 22, also amounts to deprivation of
personal liberty which is referred to in article 19 (1) (d)." (Page 148).

     Fazal Ali, J. held that since preventive detention, unlike punitive
detention, directly infringes the right under Article 19(1)(d), it must pass the
test of clause (5). According to the learned Judge, only those laws are required
to be tested on the anvil of Article 19 which directly restrict any of the
rights guaranteed in Article 19(1). Applying this test (of direct and indirect
effect) to the provisions of the Indian Penal Code, the learned Judge pointed
out that the Code "does not primarily or necessarily impose restrictions on the
freedom of movement, and it is not correct to say that it is a law imposing
restrictions on the right to move freely. Its primary object is to punish crime
and not to restrict movement. The punishment may consist in imprisonment or a
pecuniary penalty. If it consists in a pecuniary penalty, it obviously involves
no restriction on movement, but if it consists in imprisonment, there is a
restriction on movement. This restraint is imposed not under a law imposing
restrictions on movement but under a law defining crime and making it
punishable. The punishment is correlated with the violation of some other
person's right and not with the right of movement possessed by the offender
himself. In my opinion, therefore, the Indian Penal Code does not come within
the ambit of the words "law imposing restriction on the right to move freely."

         (Pages 145-146).

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

   "Punitive detention is however essentially different from preventive
detention. A person is punitively detained only after trial for committing a
crime and after his guilt has been established in a competent court of justice.
A person so convicted can take his case to the State High Court and sometimes
bring it to this Court also; and he can in the course of the proceedings
connected with his trial take all pleas available to him including the plea of
want of jurisdiction of the Court of trial and the invalidity of the law

181

     under which he has been prosecuted. The final judgment in the criminal
trial will thus constitute a serious obstacle in his way if he chooses to assert
even after his conviction that his right under article 19(1)(d) has been
violated. But a person who is preventively detained has not to face such an
obstacle whatever other obstacle may be in his way."

        (Page 146)

     We have copiously extracted from the judgments in A.K. Gopalan's case, to
show that all the propositions propounded, arguments and reasons employed or
approaches adopted by the learned Judges in that case, in reaching the
conclusion that the Indian Penal Code, particularly those of its provisions
which do not have a direct impact on the rights conferred by Article 19(1), is
not a law imposing restrictions on those rights, have not been overruled or
rendered bad by the subsequent pronouncements of this Court in Bank
Nationalizaton(1) case or in Maneka Gandhi's case. For instance, the proposition
laid down by Kania, C.J., Fazal Ali, Patanjali Sastri, and S.R. Das, J.J. that
the Indian Penal Code particularly those of its provisions which cannot be
justified on the ground on reasonableness with reference to any of the specified
heads, such as "public order" in clauses (2), (3) and (4), is not a law imposing
restrictions on any of the rights conferred by Article 19(1), still holds the
field. Indeed, the reasoning, explicit, or implicit in the judgments of Kania,
C.J., Patanjali Sastri and S.R. Das JJ. that such a construction which treats
every section of the Indian Penal Code as a law imposing 'restriction' on the
rights in Article 19(1), will lead to absurdity is unassailable. There are
several offences under the Penal Code, such as theft, cheating, ordinary
assault, which do not violate or effect 'public order,' 'but only law and
order'. These offences injure only specific individuals as distinguished from
the public at large. It is by now settled that 'public order' means 'even tempo
of the life of the community.' That being so, even all murders do not disturb or
affect 'public order'. Some murders may be of purely private significance and
the injury or harm resulting therefrom affects only specific individuals and,
consequently, such murders may not be covered by "public order" within the
contemplation of clauses (2), (3) and (4) of article 19. Such murders do not
lead to public disorder but to disorder simpliciter. Yet, no rational being can
say

     (1) [1970] 3 SCR 530.

182

that punishment of such murders is not in the general public interest. It may be
noted that general public interest is not specified as a head in clauses (2) to
(4) on which restriction on the rights mentioned in clause (1) of the Article
may be justified.

     It is true, as was pointed out by Hidayatullah, J. (as he then was) in Dr.
Ram Manohar Lohia's(1) case, and in several other decisions that followed it,
that the real distinction between the areas of 'law and order' and 'public
order' lies not merely in the nature or quality of the act, but in the degree
and extent. Violent crimes similar in nature, but committed in different
contexts and circumstances might cause different reactions. A murder committed
in given circumstances may cause only a slight tremor, the wave length of which
does not extent beyond the parameters of law and order. Another murder committed
in different context and circumstances may unleash a tidal wave of such
intensity, gravity and magnitude, that its impact throws out of gear the even
flow of life. Nonetheless the fact remains that for such murders which do not
affect "public order", even the provision for life imprisonment in Section 302,
Indian Penal Code, as as alternative punishment, would not be justifiable under
clauses (2), (3) and (4) as a reasonable restriction in the interest of 'Public
Order'. Such a construction must, therefore, be avoided. Thus construed, Article
19 will be attracted only to such laws, the provisions of which are capable of
being tested under clauses (2) to (5) of Article 19. This proposition was
recently (1975) reiterated in Hardhan Saha & Anr. v. State of West Bengal(2). In
accord with this line of reasoning in A.K. Gopalan's case, a Constitution Bench
of this Court in Hardhan Saha's case restated the principle for the
applicability of Article 19 by drawing a distinction between a law of preventive
detention and a law providing punishment for commission of crimes, thus :

   "Constitution has conferred rights under Article 19 and also adopted
preventive detention to prevent the greater evil of elements imperilling the
security, the safety of a State and the welfare of the nation. It is not
possible to think that a person who is detained will yet be free to move

     (1) [1966] 1 S.C.R. 709.

     (2) [1975] 1 S.C.R. 778 at p. 784.

183

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

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

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

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

184

wati J. described this proposition as "the doctrine of intended and real effect"
while Chandrachud, J. (as he then was) called it "the test of proximate effect
and operation of the statute."

     The question is, whether R.C. Cooper & Maneka Gandhi have given a complete
go-by to the 'test of direct and indirect effect, sometimes described as form
and object test' or 'pith and substance rule', which was adopted by Kania, C.J.
and Fazal Ali, J. in A.K. Gopalan's case. In our opinion, the answer to this
question cannot be in the affirmative. In the first place, there is nothing much
in the name. As Varadachariar, J. put it in Subrahmanyan Chettiar's(1) case,
such rules of interpretation were evolved only as a matter of reasonableness and
common sense and out of the necessity of satisfactorily solving conflicts from
the inevitable overlapping of subjects in any distribution of powers. By the
same yardstick of common sense, the 'pith and substance rule' was applied to
resolve the question of the constitutionality of a law assailed on the ground of
its being violative of a fundamental right. Secondly, a survey of the decisions
of this Court since A.K. Gopalan, shows that the criterion of directness which
is the essence of the test of direct and indirect effect, has never been totally
abandoned. Only the mode of its application has been modified and its scope
amplified by judicial activism to maintain its efficacy for solving new
constitutional problems in tune with evolving concepts of rights and obligations
in a strident democracy. The test of direct and indirect effect adopted in A.K.
Gopalan was approved by the Full Court in Ram Singh v. State of Delhi.(2)
Therein, Patanjali Sastri, J. quoted with approval the passages (i) and (ii)
(which we have extracted earlier) from the judgment of Kania, C. J. Although
Mahajan and Bose, JJ. differed on the merits, there was no dissent on this point
among all the learned Judges. The first decision, which, though purporting to
follow Kania, C. J's. enunciation in A.K. Gopalan, imperceptibly added another
dimension to the test of directness, was Express Newspapers (Private) Ltd. &
Anr. v. The Union of India & Ors.(3) In that case, the cons-

     (1) [1940] FCR 188.

     (2) [1951] SCR 451.

     (3) [1959] SCR 12.

185

titutional validity of the Working Journalists (Conditions of Service) and
Miscellaneous Provisions Act, 1955, and the legality of the decision of the Wage
Board, constituted thereunder, were challenged. The impugned Act, which had for
its object the regulation of the conditions of service of working journalists
and other persons employed in newspaper establishments, provided, inter alia,
for the payment of gratuity to a working journalist who had been in continuous
service for a certain period. It also regulated hours of work and leave and
provided for retrenchment compensation. Section 9 (1) laid down the principles
that the Wage Board was to follow in fixing the rates of wages of working
journalists.

     One of the contentions of the petitioners in that case was that impugned
Act violated their fundamental rights under Articles 19 (1) (a), 19 (1) (g), 14
and 32 of the Constitution and that the decision of the Wage Board fixing the
rates and scales of wages which imposed too heavy a financial burden on the
industry and spelled its total ruin, was illegal and void. It was contended by
the learned Attorney General in that case that since the impugned legislation
was not a direct legislation on the subject of freedom of speech and expression.
Art. 19 (1)(a) would have no application, the test being not the effect or
result of legislation but its subject-matter. In support of his contention, he
relied upon the observations on this point of Kania, C. J. in A. K. Gopalan. It
was further urged that the object of the impugned Act was only to regulate
certain conditions of service of working journalists and other persons employed
in the newspaper establishments and not to take away or abridge the freedom of
speech or expression enjoyed by the petitioners and, therefore, the impugned Act
could not come within the prohibition of Article 19 (1) (a) read with Article 32
of the Constitution.

     On the other hand, the petitioners took their stand on a passage in the
decision of the Supreme Court of United States in Minnesota Ex Rel. Olson,(1)
which was as under : "With respect to these contentions it is enough to say that
in passing upon constitutional questions the Court has regard to substance and
not to mere matters of form, and that, in accordance with familiar principles,
the statute must be tested by its operation and effect."

     (1) [1930] 283 US 697 at p. 708.

186

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

     N.H. Bhagwati, J. who delivered the unanimous Judgment of the Constitution
Bench, after noting that the object of the impugned legislation is to provide
for the amelioration of the conditions of the workmen in the newspaper industry,
overruled this contention of the employers, thus: "That, however would be a
consequence which would be extraneous and not within the contemplation of the
legislature. It could therefore hardly be urged that the possible effect of the
impact of these measures in conceivable cases would vitiate the legislation as
such. All the consequences which have been visualized in the behalf by the
petitioners, viz., the tendency to curtail circulation and thereby narrow the
scope of dissemination of information, fetters on the petitioners' freedom to
choose the means of exercising the right, likelihood of the independence of the
press being undermined by having to seek government aid; the imposition of
penalty on the petitioners' right to choose the instruments for exercising the
freedom or compelling them to seek alternative media, etc., would be remote and
depend upon various factors which may or may not come into play. Unless these
were the direct or inevitable consequences of the measures enacted in the
impugned Act, it would not be possible to strike down the legislation as having
that effect and operation." (emphasis added)

The learned Judge further observed that the impugned Act could be "legitimately
characterised as a measure which affects the press", but its "intention or the
proximate effect and operation" was not such as would take away or abridge the
right of freedom of speech and

187

expression guaranteed in Article 19 (1) (a), therefore, it could not be held
invalid on that ground. The impugned decision of the Wage Board, however, was
held to be ultra vires the Act and contrary to the principles of natural
justice.

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

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

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

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

     (1) [1962] 3 SCR 842.

     (2) [1966] 3 SCR 744.

188

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

     "It is well-settled that in examining the validity of legislation, it is
legitimate to consider whether the impugned legislation is a legislation
directly in respect of the subject covered by any particular article of the
Constitution, or touches the said article only incidentally or indirectly'.'

     "If the test of direct effect and object which is sometimes described as
the pith and substance test, is thus applied in considering the validity of
legislation, it would not be inappropriate to apply the same test to judicial
decisions like the one with which we are concerned in the present proceedings.
As we have already indicated, the impugned order was directly concerned with
giving such protection to the witness as was thought to be necessary in order to
obtain true evidence in the case with a view to do justice between the parties.
If, incidentally, as a result of this-order, the petitioners were not able to
report what they heard in court, that cannot be said to make the impugned order
invalid under Article 19 (1) (a)." 189

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

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

   Does the impugned law, in its pith and substance, whatever may be its form
and object, deal with any of the fundamental rights conferred by Article 19 (1)?
If it does, does it abridge or abrogate any of those rights? And even if it does
not, in its pith and substance, deal with any of the fundamental rights
conferred by Article 19(1), is the

190

     Direct and inevitable effect of the impugned law such as to abridge or
abrogate any of those rights? The mere fact that the impugned law incidentally,
remotely or collaterally has the effect of abridging or abrogating those rights,
will not satisfy the test. If the answer to the above queries be in the
affirmative, the impugned law in order to be valid, must pass the test of
reasonableness under Article 19. But if the impact of the law on any of the
rights under clause (1) of Article 19 is merely incidental, indirect, remote or
collateral and is dependent upon factors which may or may not come into play,
the anvil of Article 19 will not be avilable for judging its validity. Now, let
us apply this test to the provisions of the Penal Code in question. Section 299
defines 'culpable homicide' and Section 300 defines culpable homicide amounting
to murder. Section 302 prescribes death or imprisonment for life as penalty for
murder. It cannot, reasonably or rationally, be contended that any of the rights
mentioned in Article 19(1) of the Constitution confers the freedom to commit
murder or, for the matter of that, the freedom to commit any offence whatsoever.
Therefore, penal laws, that is to say, laws which define offences and prescribe
punishment for the commission of offences do not attract the application of
Article 19(1). We cannot, of course, say that the object of penal laws is
generally such as not to involve any violation of the rights conferred by
Article 19(1) because after the decision of this Court in the Bank
Nationalization case the theory, that the object and form of the State action
alone determine the extent of protection that may be claimed by an individual
and that the effect of the State action on the fundamental right of the
individual is irrelevant, stands discredited. But the point of the matter is
that, in pith and substance, penal laws do not deal with the subject matter of
rights enshrined in Article 19(1). That again is not enough for the purpose of
deciding upon the applicability of Article 19 because as the test formulated by
us above shows, even if a law does not, in its pith and substance, deal with any
of the fundamental rights conferred by Article 19(1), if the direct and
inevitable effect of the law is such as to abridge or abrogate any of those
rights, Article 19(1) shall have been attracted. It would then become necessary
to test the validity of even a penal law on the touchstone of that Article. On
this latter aspect of the matter, we are of the opinion that the deprivation of
freedom consequent upon an order of conviction and sentence is not a direct 191

and inevitable consequence of the penal law but is merely incidental to the
order of conviction and sentence which may or may not come into play, that is to
say, which may or may not be passed. Considering therefore the test formulated
by us in its dual aspect, we are of the opinion that Section 302 of the Penal
Code does not have to stand the test of Article 19(1) of the Constitution.

     This is particularly true of crimes, inherently vicious and pernicious,
which under the English Common Law were classified as crimes mala in se as
distinguished from crimes mala prohibita crimes mala in se embrace acts immoral
or wrong in themselves, such as, murder, rape, arson, burglary, larceny (robbery
and dacoity); while crimes mala prohibita embrace things prohibited by statute
as infringing on others' rights, though no moral turpitude attaches to such
crimes. Such acts constitute crimes only because they are so prohibited. (See
Words and Phrases, Permanent Edition, Vol. 10). While crimes mala in se do not
per se, or in operation directly and inevitably impinge on the rights under
Article 19(1), cases under the other category of crimes are conceivable where
the law relating to them directly restricts or abridges such rights. The
illustration given by Shri Sorabji will make the point clear. Suppose, a law is
enacted which provides that it shall be an offence to level any criticism,
whatever, of the Government established by law and makes a further provision
prescribing five years' imprisonment as punishment for such an offence. Such a
law (i.e. its provision defining the offence) will directly and inevitably
impinge upon the right guaranteed under clause (a) of Article 19(1). Therefore,
to be valid, it must pass the test of reasonableness embodied in clause (2) of
the Article. But this cannot be said in regard to the provisions of the Penal
Code with which we are concerned. Assuming arguendo, that the provisions of the
Penal Code, particularly those providing death penalty as an alternative
punishment for murder, have to satisfy the requirements of reasonableness and
public interest under Article 19 the golden strand of which according to the
ratios of Maneka Gandhi runs through the basic structure of Article 21 also the
further questions to be determined, in this connection, will be: On whom will
the onus of satisfying the requirements under Article 19, lie ? Will such onus
lie on the State or the person challenging its validity ? And what will be the
nature of the onus? 192

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

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

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

   "there is always a presumption in favour of the constitutionality of an
enactment and the burden is upon him who attack it to show that there has been a
clear transgression of the constitutional principles"; and

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

It was emphasised that "Judges act not by hunch but on hard facts properly
brought on record and sufficiently strong to rebuff the

193

initial presumption of constitutionality of legislation. Nor is the Court a
third Chamber of the House to weigh whether it should draft the clause
differently". Referring, inter alia, to the decision of this Court in R.M.D.
Chamarbaugwala (ibid), and Seervai's 'Constitutional Law of India', Vol. I, page
54, it was recalled, "Some courts have gone to the extent of holding that there
is a presumption in favour of constitutionality, and a law will not be declared
unconstitutional unless the case is so clear as to be free from doubt; and to
doubt the constitutionality of a law is to resolve it in favour of its
validity". Similar view was taken by a Bench of seven learned Judges of this
Court in Pathumma v. State of Kerala.(1)

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

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

   "Courts are not representative bodies. They are not designed to be a good
reflex of a democratic society. Their judgment is best informed, and therefore
most dependable, within narrow limits. Their essential quality is detachment,
founded on independence. History teaches that the independence of the judiciary
is jeopardized when courts become embroiled in the passions of the day and
assume primary responsibility in choosing between competing political, economic
and social pressures."

194

     In Gregg v. Georgia,(1) one of the principal questions for consideration
was, whether capital punishment provided in a statute for certain crimes was a
"cruel and unusual" punishment. In that context, the nature of the burden which
rests on those who attack the constitutionality of the statute was explained by
Stewart, J., thus : "We may not require the legislature to select the least
severe penalty possible so long as the penalty selected is not cruelly inhumane
or disproportionate to the crime involved. And a heavy burden rests on those who
would attack the judgment of the representatives of the people. This is true in
part because the constitutional test is intertwined with an assessment of
contemporary standards and the legislative judgment weighs heavily in
ascertaining such standards. In a democratic society legislatures, not courts,
are constituted to respond to the will and conse quently the moral values of the
people."

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

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

     The Law Commission of India, after making an intensive and extensive study
of the subject of death penalty in India, published

195

and submitted its 35th Report in 1967 to the Government. After examining, a
wealth of evidential material and considering the arguments for and against its
retention, that high-powered Body summed up its conclusions at page 354 of its
Report, as follows :

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

   It is difficult to rule out the validity of, of the strength behind, many of
the arguments for abolition nor does, the Commission treat lightly the argument
based on the irrevocability of the sentence of death, the need for a modern
approach, the severity of capital punishment and the strong feeling shown by
certain sections of public opinion in stressing deeper questions of human
values.

   Having regard, however, to the conditions in India, to the variety of the
social up-bringing of its inhabitants, to the disparity in the level of morality
and education in the country, to the vastness of its area, to diversity of its
population and to the paramount need for maintaining law and order in the
country at the present juncture, India cannot risk the experiment of abolition
of capital punishment." This Report was also, considered by the Constitution
Bench of this Court in Jagmohan. It was the main piece of evidence on the basis
of which the challenge to the constitutional validity of Section 302 of the
Penal Code, on the ground of its being violative of Article 19, was repelled.
Parliament must be presumed to have considered these views of the Law Commission
and the judgment of this Court in Jagmohan, and must also have been aware of the
principles crystallised by judicial precedents in the matter of sentencing when
it took up revision of the Code of Criminal Procedure in 1973, and inserted in
it, Section 354(3) which indicates that death penalty can be awarded in
exceptional cases for murder and for some other offences under the Penal Code
for special reasons to be recorded. Death penalty has been the subject of an
age-old debate between Abolitionists and Retentionists, although recently the

196

controversy has come in sharp focus. Both the groups are deeply anchored in
their antagonistic views. Both firmly and sincerly believe in the rightcousness
of their respective stands, with overtones of sentiment and emotion. Both the
camps can claim among them eminent thinkers, penologists, sociologists, jurists;
judges, legislators, administrators and law enforcement officials.

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

     (a) The death penalty is irreversible. Decided upon according to fallible
processes of law by fallible human beings, it can be-and actually has been-
inflicted upon people innocent of any crime. (b) There is no convincing evidence
to show that death penalty serves any penological purpose :

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

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

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

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

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

Regarding (a) : It is true that death penalty is irrevocable and a few
instances, can be cited, including some from England, of persons who after their
conviction and execution for murder, were discovered to be innocent. But this,
according to the Retentionists is not a reason for abolition of the death
penalty, but an argument for reform of the judicial system and the sentencing
procedure. Theore- 197

tically, such errors of judgment cannot be absolutely eliminated from any system
of justice, devised and worked by human beings, but their incidence can be
infinitesimally reduced by providing adequate safeguards and checks. We will
presently see, while dealing with the procedural aspect of the problem, that in
India, ample safeguards have been provided by law and the Constitution which
almost eliminate the chances of an innocent person being convicted and executed
for a capital offence.

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

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

     In Paras Ram v. State of Punjab,(1) the facts were that Paras Ram, who was
a fanatic devotee of the Devi, used to hold Satsangs at which bhajans were sung
in praise of the Goddess. Paras Ram ceremonially beheaded his four year old boy
at the crescendo of the morning bhajan. He was tried, convicted and sentenced to
death for the murder. His death sentence was confirmed by the High Court. He
filed a petition for grant of special leave to appeal to this Court under
Article 136 of the Constitution. It was contended on behalf of Paras Ram that
the very monstrosity of the crime provided proof of his insanity sufficient to
exculpate the offender under Section 84, Indian Penal Code, or material for
mitigation of the sentence of death. V. R. Krishna Iyer, J., speaking for the
Bench, to which one of us (Sarkaria, J.) was a party, refused to grant special
leave and summarily dismissed the petition with these observations : 198

   "The poignantly pathological grip of macabre superstitions on some crude
Indian minds in the shape of desire to do human and animal sacrifice, in
defiance of the scientific ethos of our cultural heritage and the scientific
impact of our technological century, shows up in crimes of primitive horror such
as the one we are dealing with now, where a blood-curdling butehery of one's own
beloved son was perpetrated, aided by other 'pious' criminals, to propitiate
some blood-thirsty diety. Secular India, speaking through the Court, must
administer shock therepy to such anti- social 'piety' when the manifestation is
in terms of inhuman and criminal violence. When the disease is social,
deterrence through court sentence must, perforce, operate through the individual
culprit coming up before court. Social justice has many facets and Judges have a
sensitive, secular and civilising role in suppressing grievous injustice to
humanist values by inflicting condign punishment on dangerous deviants."
(emphasis added)

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

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

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

199

     native will be an adequate substitute for the death penalty."

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

     In Shiv Mohan Singh v. State (Delhi Administration),(2) the same learned
Judge, speaking for the Court, reiterated the deterrent effect of death penalty
by referring to his earlier judgment in Ediga Annamma's case, as follows: "In
Ediga Annamma this Court, while noticing the social and personel circumstances
possessing an extenuating impact, has equally clearly highlighted that in India
under present conditions deterrence through death penalty may not be a time-
barred punishment in some frightful areas of barbarous murder."

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

     In Trop v. Dulleh,(4) Brennan, J. of the supreme Court of the United
States, concurring with the majority, emphasised the deterrent end of
punishment, in these words: "Rehabilitation is but one of the several purposes
of the penal law. Among other purposes are deterrents of the wrongful act by the
threat of punishment and insulation of society from dangerous individuals by
imprisonment or execution."

200

     In Furman v. Georgia, Stewart, J. took the view that death penalty serves a
deterrent as well as retributive purpose. In his view, certain criminal conduct
is so atrocious that society's interest in deterrence and retribution wholly
outweighs any considerations of reform or rehablitation of the perpetrator, and
that, despite the inconclusive empirical evidence, only penalty of death will
provide maximum deterrence.

     Speaking for the majority, in Gregg v. Georgia, Stewart, J. reiterated his
views with regard to the deterrent and retributive effect of death penalty. Now,
we may notice by way of specimen, the views of some jurists and scholars of
note. Sir James Fitzjames Stephen, the great jurist, who was concerned with the
drafting of the Indian Penal Code, also, was a strong exponent of the view that
capital punishment has the greatest value as a deterrent for murder and other
capital offence. To quote his words:

   "No other punishment deters men so effectually from committing crimes as the
punishment of death. This is one of those propositions which it is difficult to
prove, simply because they are in themselves more obvious than any proof can
make them. It is possible to display ingenuity in arguing against it, but that
is all. The whole experience of mankind is in the other direction. The threat of
instant death is the one to which resort has always been made when there was an
absolute necessity for producing some result. No one goes to certain inevitable
death except by compulsion. Put the matter the other the way. Was there ever yet
a criminal who, when sentenced to death and brought out to die, would refuse to
offer of commutation of his sentence for the severest secondary punishment?
Surely not. Why is this ? It can only be because 'All that a man has will he
give for his life'. In any secondary punishment, however terrible, there is
hope; but death is death; its terrors cannot be described more forcibly."

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

201

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

     Thorsten Sallin is one of the penologists who has made a scientific study
of the subject of capital punishment and complied the views of various scholars
of the 19th and 20th centuries. In his book "Capital Punishment", he has made an
attempt to assemble the arguments for and against the death penalty. He has also
given extracts from the Debates in the British House of Commons in 1956 and,
also, in March and April 1966, in the Candian House of Commons. In the last part
of his book, the learned Editor summarises his ideas about capital punishment.
In his opinion, Retribution seems to be outdated and unworkable. It is neither
efficient nor equitably administered. "Justice is a relative concept that
changes with the times". A retributive philosophy alone is not now socially
acceptable. "In the last analysis, the only utilitarian argument that has being
to be given attention is the one that defends capital punishment as a uniquely
powerful means of protecting the community." He ends his book with the
observation : "I have attempted to show that, as now used, capital punishment
performs none of the utilitarian functions claimed by its supporters, nor can it
ever be made to serve such functions. It is an archaic custom of primitive
origin that has disappeared in most civilized countries and is withering away in
the rest." In his article appearing in "Criminology Review Year Book" (1979)
Vol. 1, complied by Sheldon L. Messinger & Egon Bittner(1), Isaac Ehrlich, after
surveying the past literature on the relation between capital punishment and
capital crimes, has (at pp. 31-33) pointed out the following shortcomings in the
thesis of Sellin :

   "The principal shortcoming of the work by Sellin and others using his
methodology is that the approach taken and the methods applied do not permit a
systematic examination of the main implications emanating from the general
theory of deterrence. The shortcoming is basic, because the implications
following from the general deterrence

202

     hypothesis are what Sellin was challenging. Yet his work neither develops
nor tests the full range of implications following from the theory he attempts
to reject; nor does he develop or test a competing theory. In addition, to my
knowledge, Sellin never reported in any of his studies the results of any
systematic (parametric or non-parametric) statistical tests that could justify
his strong and unqualified inferences." ... ... ...

   "Another fundamental shortcoming of Sellin's studies is their failure to
account systematically for other factors that are expected by the deterrence
hypothesis to affect the frequency of murder in the population, apart from the
relevant risk of execution. These are variables such as the probability of
apprehension, the conditional probability of conviction given apprehension, the
severity of alternative punishments for murder, the distribution of income, the
probability of unemployment, and other indicators of differential gains from
criminal activities occurring jointly with murder. Since, as I shall argue
later, some of these variables are expected to be highly correlated with the
conditional probability of execution given conviction of murder, their exclusion
from the statistical analysis can seriously bias estimates of the partial
deterrent effect of capital punishment. Aware of the problem, Sellin attempted
to compare states that are as alike as possible in all other respects. However,
his "matching procedure", based on the assumption that neighbouring states can
satisfy such pre-requisites without any explicit standardization, is simply
insufficient for any valid inferences. Pairs of states, such as New York, and
Rhode Island, Massachusetts and Maine, or Illinois and Wisconsin all included in
his comparisons, differ in their economic and demographic characteristics, in
their law enforcement activities, and in the opportunities they provide for the
commission of other crimes. Moreover, the direction of the causal relationship
between the murder rate and the overall risk of punishment-be it the death
penalty or any other sanction - is not self-evident because, for example, states
with high murder rates are expected to and, in fact do devote more

203

     resources to apprehend, convict and execute offenders than do states with
lower rates. Specifically, variations in the legal or practical status of the
death penalty occasionally may be the result of, rather than the cause for,
changes in the murder rate, and thus may give rise to an apparent positive
association between these two variables. The same general point applies in
connection with the identification of the effect of any other variable which is
a product of law enforcement activity or private protection against crime. For
these reasons, the true deterrent effect of a sanction such as the death penalty
cannot be readily inferred from simple comparisons of the sort performed by
Sellin."

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

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

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

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

     This eminent social scientist, Prof. Ehrlich(1) whose views we have
extracted, has made intensive studies of the deterrent effect of capital
punishment. Then, a result of his study was also published

204

in the American Economic Review in June, 1975. He includes a specific test for
the presence of a deterrent effect of capital punishment to the results of
earlier studies. He has in his study(1) claimed to identify a significant
reduction in the murder rate due to the use of capital punishment. A version of
his detailed study is said to have been filed with the United States Supreme
Court on March 7, 1975 in the case of Fowler v. North Carolina.(2)

     In 1975, Robert Martinson, a sociologist, published the results of a study
he had made in New York regarding the rehabilitation of of prisoners. Among the
conclusions he drew: "The prison which makes every effort at rehabilitation
succeeds no better than the prison which leaves its inmates to rot....The
certainty of punishment rather than the severity, is the most effective crime
deterrent. We should make plain that prisons exist to punish people for crimes
committed."

     (Quoted in Encyclopaedia Britannica 1978 Book of the Year, pp. 593-594)

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

      (Encyclopaedia Britannica, ibid.)

     Professor Jean Graven, Judge of the Court of Appeal of Geneva, and a
distinguished jurist, maintains in his learned analysis, (see the Postscript in
reply to A World View of Capital Punishment by James Avery Joyce), of the views
of Camus and Koestler, that neither of these two authors has faced up to the
really basic objection to the abolitionist's case. According to Graven, there
are two groups of people, which are not covered by the abolitionist's case and
Camus and Koestler have therefore left their cause open to attack at its

_______________________

(1) See Lee S. Friedman's article at pages 61-87, Review Year Book, 1979,
compiled by Messinger and Bittner. (2) 428 US 904=49 L. Ed. 1212 (1976).

205

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

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

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

   "Whether it (capital punishment) is a greater or lesser deterrent than life
imprisonment. This is an argument that cannot be proven on either side but I
would not like to

206

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

      (Quoted in Sellin's Capital Punishment).

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

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

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

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

     (d) As to conduct of prisoners released from jail (after undergoing
imprisonment for life), it would be difficult to come to a conclusion, without
studies extending over a long period of years. 207

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

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

Views of the British Royal Commission:

     The British Royal Commission, after making an exhaustive study of the issue
of capital punishment and its deterrent value, in their Report (1949-53),
concluded: "The general conclusion which we reach, after careful review of all
the evidence we have been able to obtain as to the deterrent effect of capital
punishment, may be stated as follows. Prima facie the penalty of death is likely
to have a stronger effect as a deterrent to normal human beings than any other
form of punishment, and there is some evidence (though no convincing statistical
evidence) that this is in fact so. But this effect does not operate universally
or uniformly, and there are many offenders on whom it is limited and may often
be negligible."

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

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

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

   Lord Justice Denning, Master of the Rolls of the Court of

208

Appeal in England, appearing before the British Royal Commission on Capital
Punishment, stated his views on this point as under:

   "Punishment is the way in which society expresses its denunciation of wrong-
doing, and, in order to maintain respect for law, it is essential that the
punishment inflicted for grave crimes should adequately reflect the revulsion
felt by the great majority of citizens for them. It is a mistake to consider the
objects of punishment as being deterrent or reformative or preventive and
nothing else...The truth is that some crimes are so outrageous that society
insists on adequate punishment, because the wrong-doer deserves it, irrespective
of whether it is a deterrent or not." That retribution is still socially
acceptable function of punishment, was also the view expressed by Stewart, J.,
in Furman v. Georgia, at page 389, as follows: "...I would say only that I
cannot agree that retribution is a constitutionally impermissible ingredient in
the imposition of punishment. The instinct for retribution is part of the nature
of man, and channeling that instant, in the administration of criminal justice
serves an important purpose in promoting the stability of a society governed by
law. When people begin to believe that organized society is unwilling or unable
to impose upon criminal offenders the punishment they 'deserve', then there are
sown the seeds of anarchy of self help, vigilant justice, and lynch law."

     Patrick Devlin, the eminent jurist and judge, in his book, "The Judge",
emphasises the retributive aspect of the purpose of punishment and criminal
justice, thus: "I affirm that justice means retribution and nothing else.
Vindictiveness is the emotional outflow of retribution and justice has no
concern with that. But it is concerned with the measurement of deserts. The
point was put lucidly and simply by the Vicar of Longton in a letter to The
Times, from which with his permission I quote: Firstly, far from pretending that
retribution should have no place in our penal system, Mr. Levin should recognize
that it is

209

     logically impossible to remove it. If it were removed, all punishments
should be rendered unjust. What could be more immoral than to inflict
imprisonment on a criminal for the sake of deterring others, if he does not
deserve it? Or would it be justified to subject him to a compulsory attempt to
reform which includes a denial of liberty unless, again he deserves it?.
Retribution and deterrence are not two divergent ends of capital punishment.
They are convergent goals which ultimately merge into one. How these ends of
punishment coalesce into one was described by the Law Commission of India, thus:

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

    [Para 265 (18), 35th Report]

     Earlier in 1949-1953, the British Royal Commission in Para 59 of its Report
spoke in a somewhat similar strain: "We think it is reasonable to suppose that
the deterrent force of capital punishment operates not only by affecting the
conscious thoughts of individuals tempted to commit murder, but also by building
up in the community, over a

210

     long period of time, a deep feeling of peculiar abhorrence for the crime of
murder. The fact that men are hung for murder is one great reason why murder is
considered so dreadful a crime. This widely diffused effect on the moral
consciousness of society is impossible to assess, but it must be at least as
important as any direct part which the death penalty may play as a deterrent in
the calculations of potential murderers."

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

     (See The Voice (USA) June 4, 1979)

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

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

     This view is not without respectable support in the jurisprudential
literature of today, despite an opinion to the contrary. (See also the Royal
Commission's Report, 1949- 53). In relying, inter alia, upon the evidence before
it, including that of Lord Denning, the Royal Commission recognised a strong and
widespread demand for retribution. It is a common phenomenon in all the
civilized countries that some murders are so shockingly offensive that there is
a general outcry from the public for infliction of the ultimate penalty on the
criminal.

     In regard to the retributive aspect of capital punishment, we may cite one
recent illustration showing how demand for retribu-

211

tion, in the sense of society's instinctive disapproval of the outrageous
conduct of the murderer is indelibly ingrained in contemporary public opinion
even in advanced countries.

     In November 1978, George Moscone (Mayor) and Harvey Milk (Supervising
Officer) of San Francisco were cruelly, assassinated by Dan White, a police-man.
Six months later, on May 22, 1979, a jury of seven men and five women rejected
the charge of first-degree murder, and in consequence, did not award capital
punishment to Dan White for this heinous double murder. Public opinion reacted
sharply. Public protest against this decision spontaneously manifested itself in
a burst of flame and fury. Thousands of outraged demonstrators rampaged through
the Civic Centre, smashing windows, burning police cars, chanting: "We want
justice" Writing in 'The Voice', a local paper from San Franscisco, in its issue
of June 4, 1979, Lawrence Mullen, fired at the jury a volley of questions, to
which the agitated public would demand answers:

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

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

   The former cop, a law and order and capital punishment advocate driven by his
passion, by his lack of reason, to destroy those who he disagreed with, and by
doing so

212

     demonstrated the greatest human failure-the inability to co-exist.

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

     Dan White's case and the spontaneous reaction of the public opinion that
followed, show that opposition to capital punishment has (to use the words of
Raspberry),"(1) much more appeal when the discussion is merely academic than
when the community is confronted with a crime, or a series of crimes, so gross,
so heinous, so cold-blooded that anything short of death seems an inadequate
response". The Editor of 'Capital Punishment', Thorsten Sellin has noted at page
83 of his compilation, the following views of an outstanding Justice of the
Ontario Appeal Court: "The irrevocable character of the death penalty is a
reason why all possible measures should be taken against injustice-not for its
abolition. Now a days, with the advent of armed criminals and the substantial
increase in armed robberies, criminals of long standing if arrested, must expect
long sentences. However, if they run no risk of hanging, when found guilty of
murder, they will kill police men and witnesses with the prospect of a future no
more unhappy, as one of them put it, than being fed, lodged, and clothed for the
rest of their lives. In addition, once in prison, such people who are capable of
anything could kill their guards and their fellow inmates with relative
impunity."

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

   "If the State has the right and the duty to defend the community against
outside aggression, such as in time of war, and within the country, for
instance, in case of treason

______________

     (1) Raspberry, Death Sentence, the Washington Post, March 12, 1976, p, 27
cols. 5-6.

213

     crimes against the State, etc., and that to the extent of taking the life
of the aggressors and guilty parties, if the citizen wants to protect his own
life by killing whoever attacks him without any reason, the State can do the
same when a criminal attacks and endangers the life of the community by deciding
to eliminate summarily another human being. Capital punishment must be retained
to prove the sanctity of that most precious thing which is the gift of life; it
embodies the revulsion and horror that we feel for the greatest of crimes...For
most people, life is priceless and they will do anything and suffer the worst
privations to preserve it, even when life itself does not hold many consolations
or bright prospects for the future. As a deterrent, the death penalty is playing
its part for which there is no substitute...I suggest that statistics do not
prove much, either on one side or the other.... There are too many variations,
too many changes as regards circumstances, condition between one period and the
other, to enable us to make worthy comparisons."

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

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

     While the Abolitionists look upon death penalty as something which is per
se immoral and inhuman, the Retentionists apprehened that if we surrender even
the risk of the last remaining horrifying deterrent by which to frighten the
toughts of the underworld, we may 214

easily tip the scales in favour of the anti-social hoodlums. They fear that
abolition of capital punishment, will result in increase of murders motivated by
greed, and in affable "crime passionelle."

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

     The argument cannot be rejected out of hand. A number of instances can be
cited where abolitionist States feeling the inadequacy of their penological
armour to combat politically motivated gangsterism, have retrieved and used
their capital weapon which they had once thrown away. Despite their traditional
abhorrence of death penalty, the Norwegians executed Major Vedkun Quisling after
World War II. The Belgians, too, executed no less than 242 collaborators' and
traitors after the liberation, although in their country, the death penalty was
otiose since 1880. In England, death penalty was retained for high treason in
the Silverman Bill of 1956. Even at present, for that offence, death penalty is
a valid sanction in England. In the aftermath of assassination of Prime Minister
Bandernaike in 1959, Ceylon hurriedly reintroduced capital punishment for
murder. Owing to similar considerations, Israel sanctioned death penalty for
crimes committed against the Jewish people, and executed the notorious Jew-
baiter, Adolf Eichmann in 1962. Recently, on April 9, 1979, confronted with a
wave of violent incidents after the signing of Egypt- Israel Peace Treaty.
Israel sanctioned the use of death penalty "for acts of inhuman cruelty".

____________

     (1) Sunday Tribune, December 8, 1963.

215

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

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

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

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

216

That is why statistical attempts to assess the true penological value of capital
punishment, remain inconclusive.

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

     A review of the world events of the last seven or eight years, as evident
from Encyclopaedia Britannica Year Books and other material referred to by the
learned counsel, would show that most countries in the world are in the grip of
an ever-rising tide of violent crime. Murders for monetary gain or from
misdirected political motives, robbery, rape assault are on the increase. India
is no exception. The Union of India has produced for our perusal a statement of
facts and figures showing the incidence of violent crime, including murder,
dacoity and robbery, in the various States of India, during the years 1965 to
1975. Another statement has been furnished showing the number of persons
convicted of murder and other capital offences and sentenced to death in some of
the States of India during the period 1974 to 1978. This statement however, is
incomplete and inadequate. On account of that deficiency and for the general
reasons set out above, it cannot, even statistically show conclusively or with
any degree of certainty, that capital punishment has no penological worth. But
the first statement does bring out clearly the stark reality that the crimes of
murder, dacoity and robbery in India are since 1965 increasing. Now, looking
around at the world during the last decade, we may recall that in Purman v.
Georgia (decided on June 29, 1976), the Supreme Court of the United States held
by a majority, that the imposition and carrying out of the death penalty
constitutes 'cruel and unusual' punishment, in violation of the Eighth and
Fourteenth

____________

     (1) An Enquiry into Criminal Guilt by Prof. Peter Brett, 1963 Edn.
Melbourne, page 13.

217

Amendments. Brennan and Marshall, JJ. (differing from the plurality) went to the
extent of holding that death penalty was per se unconstitutional as it was a
cruel and unusual punishment. In so holding, these learned Justices purported to
adopt the contemporary standards of decency prevailing among the enlightened
public of the United States. Justice Marshall ruled that "it was morally
unacceptable to the people of the United States". This opinion of the learned
Justices was sharply rebuffed by the people of the United States through their
chosen representatives. Soon after the decision in Furman, bowing to the thrust
of public opinion, the Legislatures of not less than 32 States, post-haste
revised their penal laws and reinstituted death penalty for murder and certain
other crimes. Public opinion polls then taken show that approximately 70 per
cent of Americans have been in favour of death penalty. (See 'The Voice',
supra). In 1976, a Gallup Poll taken in the Unitted States showed that more than
65 per cent of those polled preferred to have an operative death penalty.

     Incidently, the rejection by the people of the approach adopted by the two
learned Judges in Furman, furnishes proof of the fact that judicial opinion does
not necessarily reflect the moral attitudes of the people. At the same time, it
is a reminder that Judges should not take upon themselves the responsibility of
becoming oracles or spokesmen of public opinion: Not being representatives of
the people, it is often better, as a matter of judicial restraint, to leave the
function of assessing public opinion to the chosen representatives of the people
in the legislature concerned. Coming back to the review of the world crime
situation, during the last decade, Saudi Arabia and some other countries have
reinstated death penalty or enacted harsher punishments not only for murder but
some other crimes, also. In America, apart from 32 States which reinstated death
penalty under revised laws after Furman, the legislatures of some of the
remaining 15 States have either reinstituted or are considering to reintroduce
death penalty. Currently, a federal legislation for reinstituting or prescribing
capital punishment for a larger range of offences of homicide is under
consideration of United States' Congress. According to the report of the Amnesty
International, in U.S.A., as on May 1, 1979, death penalty can be imposed for
aggravated murder in 35 States. Attempts have been made in other countries, also
to reintroduce death penalty. In Britain, in 218

the wake of serious violent incidents of terrorism, a Bill was moved in
Parliament to reintroduce capital punishment for murder and certain other
offences. It was defeated by a free vote on April 19, 1979. Even so, no less
than 243 Members of Parliament had voted in favour of this measure. We have
noted that Israel has also recently reinstituted death penalty for certain
criminal 'acts of in human cruelty'. In People's Republic of China, a new
legislation was adopted on July 1, 1979 by China's Parliament, according to
Article 43 of which, death penalty can be imposed "for the most heinous crimes".
In Argentina, the death penalty was reintroduced in 1976. Similarly, Belgium
reintroduced death penalty and increased the number of crimes punishable with
death. In France, in 1978 a movement in favour of abolition initiated by the
French bishops failed to change the law under which death penalty is a valid
sanction for murder and certain other offences. In Japan, death penalty is a
legal sanction for 13 crimes. In Greece and Turkey, death penalty can be imposed
for murder and other capital offences. In Malaysia and the Republic of Singapore
under the Drugs Act of May, 1979, misuse of drugs is also punishable with death.
Cuba introduced a new penal code in February 1978, which provides punishment of
death by shooting for crimes ranging from some types of murder and robbery to
hijacking and rape.

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

   "Treason (Article 64); espoinage (Article 65); terrorism (if the offence
includes the killing of an official (Article 66); terrorism against
representative of foreign State (if the offence includes the killing of such a
representative "for the purpose of provoking war or international compli
cations") (Article 67); sabotage (Article 68); organizing the commission of any
of the above-named offences (Article 72); commission of any of the above-named
offences against other Working People's State (Article 73); banditry (Article
77); actions disrupting the work of corrective labour institutions (Article
77-1); making or passing counterfeit money or securities (when the offence is
committed as a form of business) (Article 87); violation of rules for currency
transactions (when committed as a form of business or on

219

     a large scale, or by a person previously convicted under this Article)
(Art. 88); stealing of State property on an especially large scale, regardless
of the manner of stealing (Article 93-1); intentional homicide with aggravating
circumstances (Article 102); rape, when committed by a group of persons or by an
especially dangerous recidivist, or resulting in especially grave consequences,
or the rape of a minor (Article 117); taking a bribe, with especially
aggravating circumstances (Article 173); infringing the life of a policeman or
People's Guard, with aggravating circumstances (Article 191-2); hijacking an
aircraft, if the offence results in death or serious physical injuries (Article
213-2); resisting a superior or compelling him to violate official duties, an
offence applicable only to military personnel, and carrying the death penalty in
peace-time if committed in conjunction with intentional homicide of a superior
or any other person performing military duties (Article 240)." (Vide, Report of
Amnesty International, 1979) Our object in making the above survey is to bring
out the hard fact that in spite of the Abolitionist movement, only 18 States (as
on 30 May 1979) in the world have abolished the death penalty for all offences,
while 8 more have retained it for specific offences committed in time of war,
only. (See Amnesty International Report (1979) page 92). This means, most of the
countries in the modern world still retain death penalty as a legal sanction for
certain specified offences. The countries which retain death penalty in their
penal laws, such as, Russia, U.S.A., France, Belgium, Malaysia, China and Japan,
etc., cannot, by any standard, be called uncivilized nations or immature
societies.

     Surveyors and students of world events and current trends believe that the
reversal of the attitudes towards criminals and their judicial punishments in
general, and capital punishment in particular in several countries of the world,
is partly due to the fact that milder sanctions or corrective processes, or even
the alternative of imprisonment, have been found inadequate and wanting to stem
the mounting tide of serious crime. Writing in Encyclopaedia Britannica, 1978
Book of the Year under the caption, 'Changing Attitudes Towards Criminals',
Richard Whittingham sums up the cause that has led to the adoption of this New
Hard Line, thus :

220

   "Horror Story after horror story of dangerous criminals sent back into
society on bail or parole from a penitentiary or (in many cases) release from a
mental institution to commit further crimes have forced people to say that
enough is enough. The consensus seemed to be that there must be no repetition of
such situations as the one described by Chicago Sun-Times Columnist Roger Simon
in a September 4, 1977, article about a man who had just been convicted of a
particularly despicable crime."

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

     According to Encyclopaedia Britannica Year Book 1979, in 1978 also
penologists were seriously divided in their views about the end of punishment.
Some penologists argued that "It is not possible to punish and reform
simultaneously": while "others would prefer to strip punishment of its moral
overtones", "While many Legislators and most penologists have supported the idea
that reform ought to take priority in dealing with offenders, many Judges
especially in Britain and the United States, where rising crime rates are the
source of much public concern have expressed grave doubts about the wisdom of
this view. They have argued that the courts must reflect a public abhorrence of
crime and that justice demands that some attempt be made to impose punishment
fitting to the crime". India also, as the statistics furnished by the respondent
(Union of India) show, is afflicted by a rising rate of violent crime,
particularly murder, armed robbery and dacoity etc., and this has been the cause
of much public concern. All attempts made by individual members to move Bills in
the Parliament for abolition or restriction of the area of death penalty have
ended in failure. At least four of such unsuccessful attempts were made after
India won Independence, in 1949, 1958, 1961 and 1978. It may be noted that the
last of

221

these cttempts was only to restrict the death penalty to a few types of murders
specified in the Bill. Though it was passed by the Rajya Sabha after being
recast, it has not been passed by Lok Sabha.

     To sum up, the question whether or not death penalty serves any penological
purpose is a difficult, complex and intractable issue. It has evoked strong,
divergent views. For the purpose of testing the constitutionality of the
impugned provision as to death penalty in Section 302, Penal Code on the ground
of reasonableness in the light of Articles 19 and 21 of the Constitution, it is
not necessary for us to express any categorical opinion, one way or the other,
as to which of these two antithetical views, held by the Abolitionists and
Retentionists, is correct. It is sufficient to say that the very fact that
persons of reason, learning and light are rationally and deeply divided in their
opinion on this issue, is a ground among others, for rejecting the petitioners
argument that retention of death penalty in the impugned provision, is totally
devoid of reason and purpose. If, notwithstanding the view of the Abolitionists
to the contrary, a very large segment of people, the world over, including
sociologists, legislators, jurists, judges and administrators still firmly
believe in the worth and necessity of capital punishment for the protection of
society, if in the perspective of prevailing crime conditions in India,
contemporary public opinion chanalised through the people's representatives in
Parliament, has repeatedly in the last three decades, rejected all attempts,
including the one made recently to abolish or specifically restrict the area of
death penalty, if death penalty is still a recognised legal sanction for murder
or some types of murder in most of the civilised countries in the world, if the
framers of the Indian Constitution were fully aware as we shall presently show
they were of the existence of death penalty as punishment for murder, under the
Indian Penal Code, if the 35th Report and subsequent Reports of the Law
Commission suggesting retention of death penalty, and recommending revision of
the Criminal Procedure Code and the insertion of the new Sections 235 (2) and
354 (3) in that Code providing for pre- sentence hearing and sentencing
procedure on conviction for murder and other capital offences were before the
Parliament and presumably considered by it when in 1972-1973 it took up revision
of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it
is not possible to hold that the provision of death penalty as an alternative
punishment for murder, in Section 302, Penal Code is unreasonable and not in the

222

public interest. We would, therefore, conclude that the impugned provision in
Section 302, violates neither the letter nor the ethos of Article 19.

     We will now consider the issue whether the impugned limb of the provision
in Section 302, Penal Code contravenes Article 21 of the Constitution.

     Before dealing with the contention canvassed on the point, it will be
proper to notice briefly the principles which should inform the interpretation
of Article 21. In Maneka Gandhi's case, which was a decision by a Bench of seven
learned Judges, it was held by Bhagwati, J. in his concurring judgment, that the
expression 'personal liberty' in Article 21 is of the widest amplitude and it
covers a variety of rights which go to constitute the personal liberty of man
and some of them have been raised to the status of distinct fundamental rights
under Article 19. It was further observed that Articles 14, 19 and 21 are not to
be interpreted in water-tight compartments, and consequently, a law depriving a
person of personal liberty and prescribing a procedure for that purpose within
the meaning of Article 21 has to stand the test of one or more of the
fundamental rights conferred under Article 19 which may be applicable in a given
situation, ex-hypothesi it must also be liable to be tested with reference to
Article 14. The principle of reasonableness pervades all the three Articles,
with the result, that the procedure contemplated by Article 21 must be 'right
and just and fair' and not 'arbitrary' fancifu or 'oppressive', otherwise, it
should be no procedure at all and the requirement of Article 21 would not be
satisfied.

     Article 21 reads as under:

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

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

   "No person shall be deprived of his life or personal liberty except according
to fair, just and reasonable procedure established by valid law." 223

     In the converse positive form, the expanded Article will read as below:

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

Thus expanded and read for interpretative purposes, Article 21 clearly brings
out the implication, that the Founding Fathers recognised the right of the State
to deprive a person of his life or personal liberty in accordance with fair,
just and reasonable procedure established by valid law. There are several other
indications, also, in the Constitution which show that the Constitution-makers
were fully cognizant of the existence of death penalty for murder and certain
other offences in the Indian Penal Code. Entries 1 and 2 in List III-Concurrent
List-of the Seventh Schedule, specifically refer to the Indian Penal Code and
the Code of Criminal Procedure as in force at the commencement of the
Constitution. Article 72 (1) (c) specifically invests the President with power
to suspend, remit or commute the sentence of any person convicted of any
offence, and also "in all cases where the sentence is a sentence of death".
Likewise, under Article 161, the Governor of a State has been given power to
suspend, remit or commute, inter alia the sentence of death of any person
convicted of murder or other capital offence relating to a matter to which the
executive power of the State extends. Article 134, in terms, gives a right of
appeal to the Supreme Court to a person who, on appeal, is sentenced to death by
the High Court, after reversal of his acquittal by the trial Court. Under the
successive Criminal Procedure Codes which have been in force for about 100
years, a sentence of death is to be carried out by hanging. In view of the
aforesaid constitutional postulates, by no stretch of imagination can it be said
that death penalty under Section 302, Penal Code, either per se or because of
its execution by hanging, constitutes an unreasonable, cruel or unusual
punishment. By reason of the same constitutional postulates, it cannot be said
that the framers of the Constitution considered death sentence for murder or the
prescribed traditional mode of its execution as a degrading punishment which
would defile "the dignity of the individual" within the contemplation of the
Preamble to the Constitution. On parity of reasoning, it cannot be said that
death penalty for the offence of murder violates the basic structure of the
Constitution. 224

     Before we pass on to the main Question No. II, we may dispose of another
contention convassed by Dr. L.M. Singhvi. It is pointed out that India, as a
member of the International Community, was a participating delegate at the
international conference that made the Stockholm Declaration on December 11,
1977, that India has also accepted the International Covenant on Civil and
Political Rights adopted by the Central Assembly of the United Nations, which
came into force on March 23, 1966, and to which some 47 countries, including
India, are a party. This being the position, it is stressed, India stands
committed to the abolition of the death penalty. It is contended that the
constitutional validity and interpretation of the impugned limb of Section 302,
Penal Code, and the sentencing procedure for capital cases provided in Section
354 (3) of the Code of Criminal Procedure, 1973, must be considered in the light
of the aforesaid Stockholm Declaration and the International Covenant, which
represent the evolving attitudes and standards of decency in a maturing world.
Let us examine this contention. The European Convention of Human Rights came
into force on September 1, 1953, and 18 countries had signed this Convention on
November 4, 1950. India acceded to this Resolution of the Convention on March
27, 1979. The International Covenant on Civil and Political Rights, inter alia,
provides:

   "Article 6 (1) Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived of his life. (2)
In countries which have not abolished the death penalty, sentence of death may
be imposed only for the most serious crimes in accordance with the law in force
at the time of the commission of the crime... It will be seen that clauses (1)
and (2) of Article 6 do not abolish or prohibit the imposition of death penalty
in all circumstances. All that they require is that, firstly, death penalty
shall not be arbitrarily inflicted; secondly, it shall be imposed only for most
serious crimes in accordance with a law, which shall not be an ex post facto
legislation. Thus, the requirements of these clauses are substantially 225

the same as the guarantees or prohibitions contained in Articles 20 and 21 of
our Constitution. India's commitment therefore does not go beyond what is
provided in the Constitution and the Indian Penal Code and the Criminal
Procedure Code. The Penal Code prescribes death penalty as an alternative
punishment only for heinous crimes which are not more than seven in number.
Section 354 (3) of the Criminal Procedure Code, 1973, as we shall presently
discuss, in keeping with the spirit of the International Covenant, has further
restricted the area of death penalty. India's penal laws, including the impugned
provisions and their application, are thus entirely in accord with its
international commitment.

     It will be pertinent to note that most of the countries including those who
have subscribed to this International covenant, retain death penalty for murder
and certain other crimes even to the present day in their penal laws. Neither
the new interpretative dimensions given to Articles 19 and 21 by this Court in
Maneka Gandhi and Charles Sobraj v. The Superintendent Central Jail, Tihar, New
Delhi(1) nor the acceptance by India of the International Covenant on Civil and
Political Rights, makes any change in the prevailing standards of decency and
human dignity by which counsel require us to judge the constitutional validity
of the impugned provisions. The International Covenant, as already noticed, does
not outlaw capital punishment for murder, altogether.

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

Question No.II.

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

     (i) (a) Section 354 (3) of the Code of Criminal Procedure, 1973, delegates
to the Court the duty to legislate the field of 'special reasons' for choosing
between life and death, and

____________________

     (1) [1979] 1 S.C.R. 512.

226

   (b) permits imposition of death penalty in an arbitrary and whimsical manner
in as much as it does not lay down any rational principies or criteria for
invoking this extreme sanction. (Reliance has been placed on Furman v. Georgia
(ibid).

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

     As against this, the learned Solicitor-General submits that the policy of
the law in the matter of imposition of death sentence is writ large and clear in
Section 354 (3), namely, that life imprisonment is the rule and death sentence
an exception; that the correct approach should be to apply this policy to the
relevant facts of the particular case, bearing on the question of sentence, and
to find out if there are any exceptional reasons justifying imposition of the
death penalty, as a departure from the normal rule. It is submitted that
conferment of such sentencing discretion on the courts, to be exercised
judicially, in no sense, amounts to delegation of the legislative powers by
Parliament.

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

227

     Before embarking upon a discussion of the arguments advanced on both sides,
it is necessary to have a peep into the history and the legislative background
of the procedural provisions relating to sentencing in the Code of criminal
Procedure.

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

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

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

In deferance to this recommendation, section 66 of the Code of Criminal
Procedure (Amendment) Act, 1955 (XXVI of 1955) deleted old sub-section (5) of
Section 367 with effect from January 1, 1956, and thereafter, for such capital
offences, it was left to the Court, on the facts of each case, to pass, in its
discretion, for reason to be

228

recorded, the sentence of death or the lesser sentence. This led to some
difference of opinion whether, even after the Amendment of 1955, in case of
murder the normal punishment was death or imprisonment for life (See A.I.R.
Commentaries on the Code of Criminal Procedure, Vol. 3, page 565, by D.V.
Chitaley and S. Appu Rao). Overruling its earlier decision, the Bombay High
Court in the State v. Vali Mohammad,(1) held that death is not a normal penalty
for murder. As against this, the Division Bench of the Madras High Court in
Veluchami Thevar,(2) held that death was the normal punishment where there were
no extenuating circumstances. The third set of cases held that both the
sentences were normal but the discretion as regards sentence was to be exercised
in the light of facts and circumstances of the case.

     This view appears to be in accord with the decision of this Court in Iman
Ali & Anr. v. State of Assam.(3) In that case, there was a clear finding by the
Court of Session which had been upheld by the High Court, that each of the two
appellants therein, committed a cold-blooded murder by shooting two inmates of
the house simply with the object of facilitating commission of dacoity by them.
Those persons were shot and killed even though they had not tried to put up any
resistence. It was held by this Court (speaking through Bhargava, J.) that in
these circumstances where the murders were committed in cold-blood with the sole
object of committing dacoity, the Sessions Judge had not exercised his
discretion judicially in not imposing the death sentence, and the High Court was
justified in enhancing the sentence of the appellants from life imprisonment to
death. Jagmohan Singh's case, which we shall notice presently in further detail,
proceeds on the hypothesis that even after the deletion of sub-section (5) of
Section 367 in the Code of 1898, both the alternative sentences provided in
Section 302, Penal Code are normal punishment for murder, and the choice of
either sentence rests in the discretion of the Court which is to be exercised
judicially, after taking into account all the relevant circumstances of the
case. __________________

     (1) AIR 1959 Bom. 294 (299).

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

     (3) [1968] 3 S.C.R. 610.

229

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

   "A sentence of death is the extreme penalty of law and it is but fair that
when a Court awards that sentence in a case where the alternative sentence of
imprisonment for life is also available, it should give special reasons in
support of the sentence" Accordingly, sub-section (3) of Section 354 of the
current Code provides:

   "When the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sentence."

     In the context, we may also notice Section 235 (2) of the Code of 1973,
because it makes not only explicit, what according to the decision in Jagmohan's
case was implicit in the scheme of the Code, but also bifurcates the trial by
providing for two hearings, one at the pre-conviction stage and another at the
pre-sentence stage. It requires that: "If the accused is convicted, the Judge
shall, unless he proceeds in accordance with the provisions of Section 360, hear
the accused on the question of sentence, and then pass sentence on him according
to law."

230

     The Law Commission on its 48th Report had pointed out this deficiency in
the sentencing procedure: "45. It is now being increasingly recognised that a
rational and consistent sentencing policy requires the removal or several
deficiencies in the present system. One such deficiency is the lack of
comprehensive information as to characteristics and background of the offender.

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

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

     We may also notice Sections 432, 433 and 433A, as they throw light as to
whether life imprisonment as currently administered in

______________

     (1) A.I.R. 1976 SC. 2286.

231

India, can be considered an adequate alternative to the capital sentence even in
extremely heinous cases of murder. Sections 432 and 433 of the Code of 1973
continue Sections 401 and 402 of the Code of 1898, with necessary modifications
which bring them in tune with Articles 72 and 161 of the Constitution. Section
432 invests the "appropriate Government" (as defined in sub-section (7) of that
Section) with power to suspend or remit sentences. Section 433 confers on the
appropriate Government power to commute sentence, without the consent of the
person sentenced. Under clause (a) of the Section, the appropriate Government
may commute a sentence of death, for any other punishment provided by the Indian
Penal Code. With effect from December 18, 1978, the Code of Criminal Procedure
(Amendment) Act, 1978, inserted new Section 433A, which runs as under :

   "433A. Restriction on powers of remission or commutation in certain cases-
Notwithstanding anything contained in Section 432, where a sentence of
imprisonment for life is imposed on conviction of a person for an offence for
which death is one of the punishments provided by law or where a sentence of
death imposed on a person has been commuted under Section 433 into one of
imprisonment for life, such person shall not be released from prison unless he
had served at least fourteen years of imprisonment." It may be recalled that in
Jagmohan this Court had observed that, in practice, life imprisonment amounts to
12 years in prison. Now, Section 433A restricts the power of remission and
commutation conferred on the appropriate Government under Sections 432 and 433,
so that a person who is sentenced to imprisonment for life or whose death
sentence is commuted to imprisonment for life must serve actual imprisonment for
a minimum of 14 years. We may next notice other provisions of the extent Code
(corresponding to Sections 374, 375, 376 and 377 of the repealed Code) bearing
on capital punishment. Section 366 (i) of the Code requires the Court passing a
sentence of death to submit the proceedings to the High Court, and further
mandates that such a sentence shall not be executed unless it is confirmed by
the High Court. On such a 232

reference for confirmation of death sentence, the High Court is required to
proceed in accordance with Sections 367 and

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

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

     The High Court has been given very wide powers under these provisions to
prevent any possible miscarriage of justice. In State of Maharashtra v. Sindhi,
(1) this Court reiterated, with emphasis, that while dealing with a reference
for confirmation of a sentence of death, the High Court must consider the
proceedings in all their aspects reappraise, reassess and reconsider the entire
facts and law and, if necessary, after taking additional evidence, come to its
own conclusions on the material on record in regard to the conviction of the
accused (and the sentence) independently of the view expressed by the Sessions
Judge. Similarly, where on appeal, the High Court reverses an acquittal, and
convicts the accused person and sentences him to death, Section 379 of the Code
of 1973, gives him a right of appeal to the Supreme Court. Finally, there is
Article 136 of the Constitution under which the Supreme Court is empowered, in
its discretion, to

__________

     (1) A.I.R. 1975 S.C. 1665.

233

entertain an appeal on behalf of a person whose sentence of death awarded by the
Sessions Judge is confirmed by the High Court.

     In the light of the above conspectus, we will now consider the effect of
the aforesaid legislative changes on the authority and efficacy of the
propositions laid down by this Court in Jagmohan's case. These propositions may
be summed up as under :

     (i) The general legislative policy that underlines the structure of our
criminal law, principally contained in the Indian Penal Code and the Criminal
Procedure Code, is to define an offence with sufficient clarity and to prescribe
only the maximum punishment therefor, and to allow a very wide discretion to the
Judge in the matter of fixing the degree of punishment.

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

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

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

     (iii) The view taken by the plurality in Furman v. Georgia decided by the
Supreme Court of the United States, to the effect, that a law which gives
uncontrolled and un-

_____________________

     (1) [1971] 402 US 183.

234

   guided discretion to the Jury (or the Judge) to choose arbitrarily between a
sentence of death and imprisonment for a capital offence, violates the Eighth
Amendment, is not applicable in India. We do not have in our Constitution any
provision like the Eighth Amendment, nor are we at liberty to apply the test of
reasonableness with the freedom with which the Judges of the Supreme Court of
America are accustomed to apply "the due process" clause. There are grave doubts
about the expediency of transplanting western experience in our country. Social
conditions are different and so also the general intellectual level. Arguments
which would be valid in respect of one area of the world may not hold good in
respect of another area.

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

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

      In view of the above, it will be

        impossible to say that there would be at all any discrimination, since
crime as crime may appear to be superficially the same but the facts and
circumstances of a crime are widely different. Thus considered the provision in
Section 302, Penal Code is not violative of Article 14 of the Constitution on
the ground that it confers on the judges an unguided and uncontrolled discretion
in the matter of awarding capital punishment of imprisonment for life.

     (v) (a) Relevant facts and circumstances impinging on the nature and
circumstances of the crime can be brought before the Court at the preconviction

235

        stage, notwithstanding the fact that no formal procedure for producing
evidence regarding such facts and circumstances had been specifically provided.
Where counsel addresses the Court with regard to the character and standing of
the accused, they are duly considered by the Court unless there is something in
the evidence itself which belies him or the Public Prosecutor

        challenges the facts.

   (b) It is to be emphasised that in exercising its discretion to choose either
of the two

        alternative sentences provided in Section 302, Penal Code, "the Court is
principally concerned with the facts and circumstances whether aggravating or
mitigating, which are connected with the particular crime under inquiry. All
such facts and circumstances are capable of being proved in accordance with the
provisions of the Indian Evidence Act in a trial regulated by the Cr. P.C. The
trial does not come to an end until all the relevant facts are proved and the
counsel on both sides have an opportunity to address the Court. The only thing
that remains is for the Judge to decide on the guilt and punishment and that is
what Sections 306(2) and 309(2) Cr. P.C. purport to provide for. These
provisions are part of the procedure

        established by law and unless it is shown that they are invalid for any
other reasons they must be regarded as valid. No reasons are offered to show
that they are constitutionally invalid and hence the death sentence imposed
after trial in accordance with the procedure established by law is not
unconstitutional under Article 21."

         (emphasis added)

     A study of the propositions set out above, will show that in substance, the
authority of none of them has been affected by the legislative changes since the
decision in Jagmohan's case. Of course, two of them require to be adjusted and
attuned to the shift in the

236

legislative policy. The first of those propositions is No. (iv) (a) which
postulates, that according to the then extant Code of Criminal Procedure both
the alternative sentences provided in Section 302, Penal Code are normal
sentences, and the Court can, therefore, after weighing the aggravating and
mitigating circumstances of the particular case, in its discretion, impose
either of those sentences. This postulate has now been modified by Section
354(3) which mandates the Court convicting a person for an offence punishable
with death or, in the alternative with imprisonment for life or imprisonment for
a term of years, not to impose the sentence of death on that person unless there
are "special reasons"- to be recorded-for such sentence. The expression "special
reasons" in the context of this provision, obviously means "exceptional reasons"
founded on the exceptionally grave circumstances of the particular case relating
to the crime as well as the criminal. Thus, the legislative policy now writ
large and clear on the face of Section 354(3) is that on conviction for murder
and other capital offences punishable in the alternative with death under the
Penal Code, the extreme penalty should be imposed only in extreme cases.

     In this view we are in accord with the dictum of this Court in Balwant
Singh v. State of Punjab (1), wherein the interpretation of Section 354(3) first
came up for consideration. After surveying the legislative background, one of us
(Untwalia, J,) speaking for the Court, summed up the scope and implications of
Section 354 (3), thus : "Under this provision the Court is required to state the
reasons for the sentence awarded and in the case of sentence of death, special
reasons are required to be stated. It would thus be noticed that awarding of the
sentence other than the sentence of death is the general rule now and only
special reasons that is to say, special facts and circumstances in a given case,
will warrant the passing of the death sentence. It is unnecessary nor is it
possible to make a catalogue of the special reasons which may justify the
passing of the death sentence in a case."

While applying proposition (iv) (a), therefore, the Court has to bear

_____________________

     (1) A.I.R.1976 SC 231=[1976] 2 SCR 684.

237

in mind this fundamental principle of policy embodied in Section 354(3).

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

     Attuned to the legislative policy delineated in Sections 354(3) and 235(2),
propositions (iv) (a) and (v) (b) in Jagmohan, shall have to be recast and may
be stated as below :

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

     (b) While considering the question of sentence to be imposed for the
offence of murder under Section 302 Penal Code, the court must have regard to
every relevant circumstance relating to the crime as well as the criminal. If
the court finds, but not otherwise, that the

238

   offence is of an exceptionally depraved and heinous character and
constitutes, on account of its design and the manner of its execution, a source
of grave danger to the society at large, the court may impose the death
sentence.

     The soundness or application of the other propositions in Jagmohan, and the
premises on which they rest, are not affected in any way by the legislative
changes since effected. On the contrary these changes reinforce the reasons
given in Jagmohan, for holding that the impugned provisions of the Penal Code
and the Criminal Procedure Code do not offend Articles 14 and 21 of the
Constitution. Now, Parliament has in Section 354(3) given a broad and clear
guideline which is to serve the purpose of lodestar to the court in the exercise
of its sentencing discretion. Parliament has advisedly not restricted this
sentencing discretion further, as, in its legislative judgment, it is neither
possible nor desirable to do so. Parliament could not but be aware that since
the Amending Act 26 of 1955, death penalty has been imposed by courts on an
extremely small percentage of persons convicted of murder-a fact which
demonstrates that courts have generally exercised their discretion in inflicting
this extreme penalty with great circumspection, caution and restraint. Cognizant
of the past experience of the administration of death penalty in India,
Parliament, in its wisdom, thought it best and safe to leave the imposition of
this gravest punishment in gravest cases of murder, to the judicial discretion
of the courts which are manned by persons of reason, experience and standing in
the profession. The exercise of this sentencing discretion cannot be said to be
untrammelled and unguided. It is exercised judicially in accordance with well-
recognised principles crystalised by judicial decisions, directed along the
broad contours of legislative policy towards the signposts enacted in Section
354(3).

     The new Section 235 (2) adds to the number of several other safeguards
which were embodied in the Criminal Procedure Code of 1898 and have been re-
enacted in the Code of 1973. Then, the errors in the exercise of this guided
judicial discretion are liable to be corrected by the superior courts. The
procedure provided in Criminal Procedure Code for imposing capital punishment
for murder and some other capital crimes under the Penal Code cannot, by any
reckoning, be said to be unfair unreasonable and unjust,

239

Nor can it be said that this sentencing discretion, with which the courts are
invested, amounts to delegation of its power of legislation by Parliament. The
argument to that effect is entirely misconceived. We would, therefore, re-
affirm the view taken by this Court in Jagmohan, and hold that the impgned
provisions do not violate Articles 14, 19 and 21 of the Constitution.

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

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

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

     Firstly, there is little agreement among penologists and jurists as to what
information about the crime and criminal is relevant and what is not relevant
for fixing the dose of punishment for a person convicted of a particular
offence. According to Cessare Beccaria, who is supposed to be the intellectual
progenitor of today's fixed sentencing movement 'crimes are only to be measured
by the injnry done to society'. But the 20th Century sociologists do not wholly
agree

240

with this view. In the opinion of Von Hirsch, the "seriousness of a crime
depends both on the harm done (or risked) by the act and degree of the actor's
culpability". But how is the degree of that culpability to be measured. Can any
thermometer be devised to measure its degree ? This is a very baffling,
difficult and intricate problem. Secondly, criminal cases do not fall into set-
behavioristic patterns. Even within a single-category offence there are
infinite, unpredictable and unforceable variations. No two cases are exactly
identical. There are countless permutations and combinations which are beyond
the anticipatory capacity of the human calculus. Each case presents its own
distinctive features, its peculiar combinations of events and its unique
configuration of facts. "Simply in terms of blame-worthiness or dessert criminal
cases are diferent from one another in ways that legislatures cannot anticipate,
and limitations of language prevent the precise description of differences that
can be anticipated."(1) This is particularly true of murder. "There is probably
no offence", observed Sir Ernest Growers, Chairman of the Royal Commission,
"that varies so widely both in character and in moral guilt as that which falls
within the legal definition of murder." The futility of attempting to lay down
exhaustive standards was demonstrated by this Court in Jagmohan by citing the
instance of the Model Penal Code which was presented to the American Supreme
Court in McGoutha.

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

     Fourthly, standardisation or sentencing discretion is a policy matter which
belongs to the sphere of legislation. When Parliament as a matter of sound
legislative policy, did not deliberately restrict, control or standardise the
sentencing discretion any further than that incompassed by the broad contours
delineated in Section 354 (3), _____________

     (1) Messinger and Bittner's Crimonology Year Book (Ibid) Albert W,
Alcherler's article at page 421. 241

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

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

________________________

     (1) Criminal Appeals Nos. 335 etc. of 1977 and 81 and 82 of 1978.

242

tionary area of anticipatory bail, comes in as a timely reminder. In principle,
these observations aptly apply to the desirability and feasibility of laying
down standards in the area of sentencing discretion, also. Let us therefore,
hark to the same:

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

   "I desire in the first instance to point out that the discretion given by the
section is very wide. Now it seems to me that when the Act is so express to
provide a wide discretion...it is not advisable to lay down any rigid rules for
guiding that discretion. I do not doubt that the rules enunciated by the Master
of the Rolls in the present case are useful maxims in general, and that in
general they reflect the point-of view from which judges would regard an
application for relief. But I think it ought to be distinctly understood that
there may be cases in which any or all of them may be disregarded. If it were
otherwise, the free discretion given by the statute would be fettered by
limitations which have nowhere been enacted. It is one thing to decide what is
the true meaning of the language contained

___________________________

     (1) [1912] A.C. 623,

243

     in an Act of Parliament. It is quite a different thing to place conditions
upon a free discretion entrusted by statute to the Court where the conditions
are not based upon statutory enactment at all. It is not safe. I think, to say
that the Court must and will always insist upon certain things when the Act does
not require them, and the facts of some unforeseen case may make the Court wish
it had kept a free hand." "Judges have to decide cases as they come before them,
mindful of the need to keep passions and prejudices out of their decisions. And
it will be strange if, by employing judicial artifices and techniques, we cut
down the discretion so wisely conferred upon the Courts, by devising a formula
which will confine the power to grant anticipatory bail within a strait-jacket.
While laying down cast-iron rules in a matter like granting anticipatory bail,
as the High Court has done, it is apt to be overlooked that even Judges can have
but an imperfect awareness of the needs of new situations. Life is never static
and every situation has to be assessed in the context of emerging concerns as
and when it arises. Therefore, even if we were to frame a 'Code for the grant of
anticipatory bail', which really is the business of the legislature, it can at
best furnish broad guidelines and cannot compel blind adherence." From what has
been extracted above, it is clear that this Court should not venture to
formulate rigid standards in an area in which the Legislature so warily treads.
Only broad guidelines consistent with the policy indicated by the Legislature in
Section 354(3) can be laid down. Before we come to this aspect of the matter, it
will be fair to notice briefly the decisions of the Supreme Court of U.S.A. in
Gregg v. Georgia and companion cases.

     Soon after the decision in Furman, the Georgia Legislature amended its
statutory scheme. The amended statute retains the death penalty for six
categories of crime: murder, kidnapping for ransom or where victim is harmed,
armed robbery, rape, treason, and aircraft hijacking. The statutory aggravating
circumstances, the existence of any of which may justify the imposition of the
extreme penalty of death, as provided in that statute, are: "(1) The offence of
murder, rape, armed robbery, or

244

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

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

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

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

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

   (9) The offence of murder was committed by a person in, or who has escaped
from, the lawful custody of a peace officer or place of lawful confinement. 245

   (10) The murder was committed for the purpose of avoiding, interfering with,
or preventing a lawful arrest or custody in a place of lawful confinement, of
himself or another."

     The Supreme Court of Georgia in Arnold v. State(1), held unconstitutional
the portion (within brackets) of the first circumstances encompassing persons
who have a "substantial history of serious assaultive criminal convictions" but
did not set clear and objective standards. The amended statute, also, provided
for a bifurcated trial and a pre-sentence hearing. It also provides for an
automatic appeal of death sentence to the Supreme Court of Georgia, which may or
may not affirm the death sentence. The appellate court is also required to
include reference to similar cases that the court considered.

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

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

__________________

     (1) 236 Ga 534, 540, 224 SE 2d 386, 391 (1976) (2) 428 US 242, 49 L. Ed 2d
913 (1976).

246

The actual sentence is, however, determined by the trial judge, who is also
directed to weigh the statutory aggravating and mitigating circumstances. If a
death sentence is imposed, the trial court must set forth in writing its fact
findings that sufficient statutory aggravating circumstances exist and are not
outweighed by statutory mitigating circumstances. Just as in the Georgia
statute, a death sentence is to be automatically reviewed by the Supreme Court
of Florida. Under this new statutory scheme, the Florida Court found Proffitt
(defendant) guilty of first-degree murder and sentenced him to death on the
finding that these aggravating circumstances were established :

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

     (2) the defendant had the propensity to commit murder; (3) the murder was
especially heinous, atrocious, and cruel ; and

     (4) the defendant knowingly, through his intentional act, had created a
great risk of serious bodily harm and death to many persons."

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

     It may be recalled that in Furman, that Court had held that if clear,
definite and articulate standards channeling the sentencing discretion for
imposition of the death penalty are not laid down in a statute, it would violate
the Eighth and Fourteenth Amendments. It may be noted that the aggravating
circumstance No. (7) is couched in a very wide and elastic language. The
expressions "outrageously or wantonly vile", "horrible or inhuman" employed
therein are of the widest amplitude and give this aggravating circumstance the
character of an omnibus clause. Likewise, 247

in the Florida statute, the scope of the words "especially heinous, atrocious
and cruel" was equally large and imprecise.

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

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

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

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

   "As a general proposition these concerns (expressed in Furman) are best met
by a system that provides for a bifurcated proceeding at which the sentencing
authority is apprised of the information relevant to the imposition of sentence
and provided with standards to guide its use of the information." The third
course adopted to foil the attack was: "It is, of course, arguable that any
murder involves depravity of mind or an aggravated battery. But this language
need not be construed in this way, and there is no reason to assume that the
Supreme Court of Georgia will adopt such an open-ended construction," 248

     White, J. with whom the Chief Justice and Rehnquist, J. joined, negatived
the change of these standards being vague and incomplete, with these
observations:

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

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

     Agreeing with the Supreme Court of Florida, the Supreme Court of U.S.A.
recognised that "while it is arguable that all killing are atrocious, still we
believe that the Legislature intended something especially heinous, atrocious,
of cruel" when it authorised the death penalty for first-degree murder. As a
consequence, the Court has indicated that the eighth statutory provision is
directed only at "the conscienceless or pitiless crime which is unnecessarily
tortuous to the victim".

249

     It appears to us that in Gregg v. Georgia and the companion cases, the
Supreme Court of U.S.A. was obliged to read down the requirements of Furman and
to accept these broadly worded, looseended and not-all-inclusive 'standards'
because in the area of sentencing discretion, if it was to retain its judicial
character, exhaustive standardisation or perfect regulation was neither feasible
nor desirable. Moreover, over-standardisation of the sentencing process tends to
defeat its very purpose, and may actually produce opposite results.

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

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

   "The mitigating factors listed in today's capital punishment statutes are
sometimes quite general, but none that I have seen in any statute would permit a
jury to consider any of the circumstances mentioned in this defendant's speech
(or, for that matter any other evidence of pre-crime virtue or past-crime
remorse). Apparently the Florida statute's upheld in Proffitt v. Florida would
not; yet the Supreme Court plurality, seemingly oblivious to the

250

     statutes limitations, declared in a companion case, 'A jury must be allowed
to consider on the basis of all relevant evidence not only why a death sentence
should be imposed, but also why it should not be imposed." (Jurek v.Texas.(1)

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

     This takes us to the question of indicating the broad criteria which should
guide the Courts in the matter of sentencing a person convicted of murder under
Section 302, Penal Code. Before we embark on this task, it will be proper to
remind ourselves, again that "while we have an obligation to ensure that the
constitutional bounds are not over- reached, we may not act as judges as we
might as legislatures."(2)

     In Jagmohan, this Court had held that this sentencing discretion is to be
exercised judicially on well-recognised principles, after balancing all the
aggravating and mitigating circumstances of the crime. By "well-recognised
principles" the Court obviously meant the principles crystallised by judicial
decisions illustrating as to what were regarded as aggravating or mitigating
circumstances in those eases. The legislative changes since Jagmohan-as we have
discussed already-do not have the effect of abrogating or nullifying those
principles. The only effect is that the application of those principles is now
to be guided by the paramount beacons of legislative policy discernible from
Sections 354 (3) and 235 (2), namely: (1) The extreme penalty can be inflicted
only in gravest cases of extreme culpability; (2) In making choice of the
sentence, in addition to the circumstances of the offence, due regard must be
paid to the circumstances of the offences, also. __________________________

     (1) 428 US 262, 271(1976).

     (2) Per Stewart. J. in Gregg. v. Georgia.

251

     We will first notice some of the aggravating circumstances which, in the
absence of any mitigating circumstances, have been regarded as an indication for
imposition of the extreme penalty.

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

   "The weapons used and the manner of their use, the horrendous features of the
crime and hapless, helpless state of the victim, and the like, steel the heart
of the law for a sterner sentence."

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

     With great respect, we find ourselves unable to agree to this enunciation.
As we read Sections 354(3) and 235(2) and other related provisions of the Code
of 1973, it is quite clear to us that for making the choice of punishment or for
ascertaining the existence or absence of "special reasons" in that context, the
Court must pay due regard both to the crime and the criminal. What is the
relative weight to be given to the aggravating and mitigating factors, 252

depends on the facts and circumstances of the particular case. More often than
not, these two aspects are so intertwined that it is difficult to give a
separate treatment to each of them. This is so because 'style is the man'. In
many cases, the extremely cruel or beastly manner of the commission of murder is
itself a demonstrated index of the depraved character of the perpetrator. That
is why, it is not desirable to consider the circumstances of the crime and the
circumstances of the criminal in two separate water-tight compartments. In a
sense, to kill is to be cruel and, therefore, all murders are cruel. But such
cruelty may vary in its degree of culpability. And it is only when the
culpability assumes the proportion of extreme depravity that "special reasons"
can legitimately be said to exist. Drawing upon the penal statutes of the States
in U.S.A. framed after Furman v. Georgia, in general, and clauses (2)(a), (b),
(c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the
Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating
circumstances".

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

     (a) if the murder has been committed after previous planning and involves
extreme brutality; or (b) if the murder involves exceptional depravity; or (c)
if the murder is of a member of any of the armed forces of the Union or of a
member of any police force or of any public servant and was committed. (i) while
such member or public servant was on duty; or

   (ii) in consequence of anything done or attempted to be done by such member
or public servant in the lawful discharge of his duty as such member or public
servant whether at the time of murder he was such member or public

253

        servant, as the case may be, or had ceased to be such member or public
servant; or

     (d) if the murder is of a person who had acted in the lawful discharge of
his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had
rendered assistance to a Magistrate or a police officer demanding his aid or
requiring his assistance under Section 37 and Section 129 of the said Code."

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

     In Rajendra Prasad, the majority said: "It is constitutionally permissible
to swing a criminal out of corporeal existence only if the security of State and
society, public order and the interests of the general public compel that course
as provided in Article 19(2) to (6)." Our objection is only to the word "only".
While it may be conceded that a murder which directly threatens, or has an
extreme potentiality to harm or endanger the security of State and society,
public order and the interests of the general public, may provide "special
reasons" to justify the imposition of the extreme penalty on the person
convicted of such a heinous murder, it is not possible to agree that imposition
of death penalty on murderers who do not fall within this narrow category is
constitutionally impermissible. We have discussed and held above that the
impugned provisions in Section 302, Penal Code, being reasonable and in the
general public interest, do not offend Article 19, or its 'ethos'; nor do they
in any manner violate Articles 21 and 14. All the reasons given by us for
upholding the validity of Section 302, Penal Code, fully apply to the case of
Section 354(3), Code of Criminal Procedure, also. The same criticism applies to
the view taken in Bishnu Deo Shaw v. State of West Bengal, (1) which follows the
dictum in Rajendra Prasad (ibid). In several countries which have retained death
penalty, preplanned murder for monetary gain, or by an assassin hired for

___________________

     (1) [1979] S.C.C. 714.

254

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

     Dr. Chitaley has suggested these mitigating factors: "Mitigating
circumstances: In the exercise of its discretion in the above cases, the Court
shall take into account the following circumstances:

     (1) That the offence was committed under the influence of extreme mental or
emotional disturbance. (2) The age of the accused. If the accused is young or
old, he shall not be sentenced to death.

     (3) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.

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

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

     (6) That the accused acted under the duress or domination of another
person.

255

     (7) That the condition of the accused showed that he was mentally defective
and that the said defect impaired his capacity to appreciate the criminality of
his conduct."

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

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

     There are numerous other circumstances justifying the passing of the
lighter sentence; as there are countervailing circumstances of aggravation. "We
cannot obviously feed into a judicial computer all such situations since they
are astrological imponderables in an imperfect and undulating society."
Nonetheless, it cannot be overemphasised that the scope and concept of
mitigating factors in the area of death penalty must receive a liberal and
expansive construction by the courts in accord with the sentencing policy writ
large in Section 354(3). Judges should never be blood-thirsty. Hedging of
murderers has never been too good for them. Facts and figures, albeit
incomplete, furnished by the Union of India, show that in the past, Courts have
inflicted the extreme penalty with extreme infrequency-a fact which attests to
the caution and compassion which they have always brought to bear on the
exercise of their sentencing discretion in so grave a matter. It is, therefore,
imperative to voice the concern that courts, aided by the broad illustrative
guidelines

256

indicated by us, will discharge the onerous function with evermore scrupulous
care and humane concern, directed along the highroad of legislative policy
outlined in Section 354(3), viz, that for persons convicted of murder, life
imprisonment is the rule and death sentence an exception. A real and abiding
concern for the dignity of human life postulates resistance to taking a life
through law's instrumentality. That ought not to be done save in the rarest of
rare cases when the alternative option is unquestionably foreclosed.

     For all the foregoing reasons, we reject the challenge to the
constitutionality of the impugned provisions contained in Sections 302, Penal
Code, and 354(3) of the Code of Criminal Procedure, 1973.

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

     BHAGWATI, J. These writ petitions challenge the constitutional validity of
Section 302 of the Indian Penal Code read with Section 354, sub-section (3) of
the Code of Criminal Procedure in so far as it provides death sentence as an
alternative punishment for the offence of murder. There are several grounds on
which the constitutional validity of the death penalty provided in Section 302
of the Indian Penal Code read with section 354 sub-section (3) of the Code of
Criminal Procedure is assailed before us, but it is not necessary to set them
out at this stage, for I propose to deal with them when I examine the arguments
advanced on behalf of the parties. Suffice it to state for the present that I
find, considerable force in some of these grounds and in my view, the
constitutional validity of the death penalty provided as an alternative
punishment in section 302 of the Indian Penal Code read with section 354 sub-
section (3) of the Code of Criminal Procedure cannot be sustained. I am
conscious that my learned brethren on the Bench who constitute the majority have
taken a different view and upheld the constitutional validity of the death
penalty but, with the greatest respect to them and in all humility, I cannot
persuade myself to concur with the view taken by them. Mine is unfortunately a
solitary dissent and it is therefore, with a certain amount of hesitation that I
speak but my initial diffidence is overcome by my deep and abiding faith in the
dignity of man and worth of the human person and passionate

257

conviction about the true spiritual nature and dimension of man. I agree with
Bernard Shaw that "Criminals do not die by the hands of the law. They die by the
hands of other men. Assassination on the scaffold is the worst form of
assassination because there it is invested with the approval of the
society.....Murder and capital punishment are not opposites that cancel one
another but similars that breed their kind." It was the Father of the nation who
said years ago, reaffirming what Prince Satyavan said on capital punishment in
Shanti Parva of Mahabharata that "Destruction of individuals can never be a
virtuous act" and this sentiment has been echoed by many eminent men such as
Leonardo Da Vinci, John Bright, Victor Hugo and Berdyaev. To quote again from
Bernard Shaw from Act IV of his play "Caesar and Cleopatra:

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

I share this sentiment because I regard men as an embodiment of divinity and I
am therefore morally against death penalty. But my dissent is based not upon any
ground of morality or ethics but is founded on constitutional issues, for as I
shall presently show, death penalty does not serve any social purpose or advance
any constitutional value and is totally arbitrary and unreasonable so as to be
violative of Articles 14, 19 and 21 of the Constitution. Before I proceed to
consider the various constitutional issues arising out of the challenge to the
validity of the death penalty, I must deal with a preliminary objection raised
on behalf of the respondents against our competence to entertain this challenge.
The learned counsel appearing on behalf of the respondents urged that the
question of constitutional validity of the death penalty stood concluded against
the petitioners by the decision of a constitution bench of five Judges of this
Court in Jagmohan v. State of U.P.(1) and it could not therefore be allowed to
be reagitated before this Bench consisting of the same number of Judges. This
Bench, contended the respondents, was bound by the decision in Jagmohan's
case(supra) and the same issue, once decided in Jagmohan's case (supra), could
not be raised again and reconsidered by this Bench. Now it is true that

______________

     (1) AIR 1973 SC 947.

258

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

   "That was very well for a time, but now at last the precedents have turned
upon us and are engulfing and annihilating us-engulfing and annihilating the
very devotees that worshipped at their shrine. So the air is full of new cults
that disavow the ancient faiths. Some of them tell us that instead of seeking
certainty in the word, the outward sign, we are to seek for something deeper, a
certainty of ends and aims. Some of them tell us that certainty is merely
relative and temporary, a writing on the sands to

_________

     (1) 264 US 646 : 68 Lawyers Edu. 219

259

     be effected by the advancing tides. Some of them even go so far as to
adjure us to give over the vain quest, to purge ourselves of these yearnings for
an unattainable ideal, and to be content with an empiricism that is untroubled
by strivings for the absolute. With all their diversities of form and doctrine,
they are at one at least in their emphasis upon those aspects of truth that are
fundamental and ultimate. They exemplify the method approach, the attitude and
outlook, the concern about the substance of things, which in all its phases and
disguises is the essence of philosophy."

We must therefore rid stare decisis of something of its petrifying rigidity and
warn ourselves with Cardozo that "in many instances the principles and rules and
concepts of our own creation are merely apercus and glimpses of reality" and
remind oursevels "of the need of reformulating them or at times abandoning them
altogether when they stand condemned as mischievous in the social consciousness
of the hour,...the social consciousness which it is our business as Judges to
interpret as best as we can." The question at issue in the present writ
petitions is one of momentous significance namely, whether the state can take
the life of an individual under the cover of judicial process and whether such
an act of killing by the State is in accord with the constitutional norms and
values and if, on an issue like this, a Judge feels strongly that it is not
competent to the State to extinguish the flame of life in an individual by
employing the instrumentality of the judicial process, it is his bounden duty,
in all conscience, to express his dissent, even if such killing by the State is
legitimized by a previous decision of the court. There are certain issues which
transcend technical considerations of stare decisis and if such an issue is
brought before the court, it would be nothing short of abdication of its
constitutional duty for the court to consider such issue by taking refuge under
the doctrine of stare decisis. The court may refuse to entertain such an issue
like the constitutional validity of death penalty because it is satisfied that
the previous decision is correct but it cannot decline to consider it on the
ground that it is barred by the rule of adherence to precedents. Moreover, in
the present case, there are two other supervening circumstances which justify,
nay compel, reconsideration of the decision in Jagmohan's case (supra). The
first is the introduction of the new Code of Criminal Procedure in 1973 which by
sec-

260

tion 354 sub-section (3) has made life sentence the rule in case of offences
punishable with death or in the alternative imprisonment for life and provided
for imposition of sentence of death only in exceptional cases for special
reasons. I shall presently refer to this section enacted in the new Code of
Criminal Procedure and show how, in view of that provision, the imposition of
death penalty has become still more indefensible from the constitutional point
of view. But the more important circumstance which has supervened since the
decision in Jagmohan's case (supra) is the new dimension of Articles 14 and 21
unfolded by this Court in Maneka Gandhi v. Union of India.(1) This new dimension
of Articles 14 and 21 renders the death penalty provided in section 302 of the
Indian Penal Code read with sec. 354 (3) of the Code of Criminal Procedure
vulnerable to attack on a ground not available at the time when Jagmohan's case
(supra) was decided. Furthermore, it may also be noted, and this too is a
circumstance not entirely without significance, that since Jagmohan's case
(supra) was decided, India has ratified two international instruments on human
rights and particularly the International Convenant on Civil and Political
Rights. We cannot therefore consider ourselves bound by the view taken in
Jagmohan's case (supra) and I must proceed to consider the issue as regards the
constitutional validity of death penalty afresh, without being in any manner
inhibited by the decision in Jagmohan's case (supra).

     It must be realised that the question of constitutional validity of death
penalty is not just a simple question of application of constitutional standards
by adopting a mechanistic approach. It is a difficult problem of constitutional
interpretation to which it is not possible to give an objectively correct legal
anwer. It is not a mere legalistic problem which can be answered definitively by
the application of logical reasoning but it is a problem which raises profound
social and moral issues and the answer must therefore necessarily depend on the
judicial philosophy of the Judge. This would be so in case of any problem of
constitutional interpretation but much more so would it be in a case like the
present where the constitutional conundrum is enmeshed in complex social and
moral issues defying a formalistic judicial attitude. That is the reason why in
some countries like the United States and Canada where

_________________

     (1) [1978] 2 SCR 663.

261

there is power of judicial review, there has been judicial disagreement on the
constitutionality of death penalty. On an issue like this, as pointed out by
David Pannick in his book on "Judicial Review of the Death Penalty" judicial
conclusions emanate from the judicial philosophy of those who sit in judgment
and not from the language of the Constitution." But even so, in their effort to
resolve such an issue of great constitutional significance, the Judges must take
care to see that they are guided by "objective factors to the maximum possible
extent." The culture and ethos of the nation as gathered from its history, its
tradition and its literature would clearly be relevant factors in adjudging the
constitutionality of death penalty and so would the ideals and values embodied
in the Constitution which lays down the basic frame-work of the social and
political structure of the country, and which sets out the objectives and goals
to be pursued by the people in a common endeavour to secure happiness and
welfare of every member of the society. So also standards or norms set by
International organisations and bodies have relevance in determining the
constitutional validity of death penalty and equally important in construing and
applying the equivocal formulae of the Constitution would be the "wealth of non-
legal learning and experience that encircles and illuminates" the topic of death
penalty. "Judicial dispensers", said Krishna Iyer, J. in Dalbir Singh and Others
v. State of Punjab(1) "do not behave like cavemen but breathe the fresh air of
finer culture." There is no reason why, in adjudicating upon the constitutional
validity of death penalty. Judges should not obtain assistance from the writings
of men like Dickens, Tolstoy, Dostoyevsky, Koestter and Camus or from the
investigations of social scientists or moral philosophers in deciding the
circumstances in which and the reasons why the death penalty could be seen as
arbitrary or a denial of equal protection. It is necessary to bear in mind the
wise and felicitous words of Judge Learned Hand in his "Spirit of Liberty" that
while passing on question of constitutional interpretation, it is as important
to a Judge:

   ".....to have atleast a bowing acquaintance with Acton and Maitland. With
Thucydides, Gibbon and Carlyle, with Homer, Dante Shakespeare and Milton, with
Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume

262

     and Kant, as with the books which have been specifically written on the
subject. For in such matters everything turns upon the spirit in which he
approaches the question before him. The words he must construe are empty vessels
into which he can pour nearly anything he will. Men do not gather figs of
thistles, nor supply institutions from judges whose outlook is limited by parish
or class. They must be aware that there are before them more than verbal
problems; more than final solutions cast in generalisations of universal
applicability." Constitutional law raises, in a legal context, problems of
economic, social, moral and political theory and practice to which non-lawyers
have much to contribute. Non-lawyers have not reached unanimity on the answers
to the problems posed; nor will they ever do so, But when judges are confronted
by issues to which there is no legal answer, there is no reason (other than a
desire to maintain a fiction that the law provides the answer) for judicial
discretion to be exercised in a vacuum, immune from non-legal learning and
extra-legal dispute. "Quotations from noble minds are not for decoration (in
hard constitutional cases) but for adaptation within the framework of the law."
Vide: David Pannick on 'Judicial Review of the Death Penalty.' The Judges must
also consider while deciding an issue of constitutional adjudication as to what
would be the moral, social and economic consequences of a decision either way.
The consequences of course do not alter the meaning of a constitutional or
statutory provision but they certainly help to fix its meaning. With these
prefatory observations I shall now proceed to consider the question of
constitutional validity of death penalty. I shall presently refer to the
constitutional provisions which bear on the question of constitutionality of
death penalty, but before I do so, it would be more logical if I first examine
what is the international trend of opinion in regard to death penalty. There are
quite a large number of countries which have abolished death penalty de jure or
in any event, de facto The Addendum to the Report of the Amnesty International
on "The Death Penalty" points out that as on 30th May 1979, the following
countries have abolished death penalty for all offences : Australia, Brazil,
Colombia, Costa Rica, Denmark, Dominican Republic, Ecuador, Fiji, Finland,
Federal Republic of Germany, Honduras, Iceland, Luxembourg, Norway, Portugal,
Sweden, Uruguay and Venezuela, and according

263

to this Report, Canada, Italy, Malta, Netherlands, Panama, Peru, Spain and
Switzerland have abolished death penalty in time of peace, but retained it for
specific offences committed in time of war. The Report also states that Algeria,
Belgium, Greece, Guyana, Ivory Coast, Seychelles and Upper Volta have retained
the death penalty on their statute book but they did not conduct any executions
for the period from 1973 to 30th May 1979. Even in the United States of America
there are several States which have abolished death penalty and so also in the
United Kingdom, death penalty stands abolished from the year 1965 save and
except for offences of treason and certain forms of piracy and offences
committed by members of the armed forces during war time. It may be pointed out
that an attempt was made in the United Kingdom in December 1975 to reintroduce
death penalty for terrorist offences involving murder but it was defeated in the
House of Commons and once again a similar motion moved by a conservative member
of Parliament that "the sentence of capital punishment should again be available
to the courts" was defeated in the House of Commons in a free vote on 19th July
1979. So also death penalty has been abolished either formally or in practice in
several other countries such as Argentina, Bolivia, most of the federal States
of Mexico and Nicaragua, Israel, Turkey and Australia do not use the death
penalty in practice. It will thus be seen that there is a definite trend in most
of the countries of Europe and America towards abolition of death penalty. It is
significant to note that the United Nations has also taken great interest in the
abolition of capital punishment. In the Charter of the United Nations signed in
1945, the founding States emphasized the value of individuals's life, stating
their will to "achieve international co-operation...in promoting and encouraging
respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language or religion." Though the San Francisco
Conference did not address itself to the issue of death penalty specifically,
the provisions of the charter paved the way for further action by United Nations
bodies in the field of human rights, by establishing a Commission on Human
Rights and, in effect, charged that body with formulating an International Bill
of Human Rights. Meanwhile the Universal Declaration of Human Rights was adopted
by the General Assembly in its Resolution 217 A (III) of 10 December 1948.
Articles 3 and 5 of the Declaration provided:

264

     3. "Everyone has the right to life, liberty and security of person."

     5. "No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. The United Nations' position on the question of death
penalty was expected to be stated more specifically in the International
Covenant on Civil and Political Rights, the drafting of which had been under way
since the first session of the Commission on Human Rights in 1947. But during
the 11 year period of drafting of the relevant provision of the Covenant, two
main approaches to the issue of capital punishment became evident: one stressed
the need for barring the death penalty and the second placed emphasis on
resstricting its application to certain cases. The proponents of the first
position suggested either the total abolition of the death penalty or its
abolition in time of peace or for political offences. This approach was however
regarded as unfeasible, since many countries, including abolitionist ones, felt
that the provision for an outright ban on the death penalty would prevent some
States from ratifying the Covenant, but at the same time, it was insisted by
many countries that the Covenant should not create the impression of supporting
or perpetuating death penalty and hence a provision to this effect should be
included. The result was that the second approach stressing everyone's right to
life and emphasizing the need for restricting the application of capital
punishment with a view to eventual abolition of the death penalty, won greater
support and Article 6 of the Covenant as finally adopted by the General Assembly
in its resolution 2000(XXX) of 16 December 1966 provided as follows :

     1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.

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

265

   penalty can only be carried out pursuant to a final judgment rendered by a
competent court.

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

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

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

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

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

     So deep and profound was the United Nation's concern with the issue of
death penalty that the General Assembly in its resolotion 1396 (XIV) of 20
November, 1959 invited the Economic and Social Council to initiate study of the
question of capital punishment, of the laws and practices relating thereto, and
of the effects of capital punishment and the abolition thereof on the rate of
criminality. Pursuant to this resolution, the Economic and Social Council
activised itself on this issue and at its instance a substantive report report
was prepared by the noted French jurist Marc Ancel. The report entitled "Capital
Punishment" was the first major survey of the problem from an international
stand point on the deterrent aspect of the death penalty and in its third
chapter, it contained a cautious statement "that the deterrent effect of the
death penalty is, to say the least, not demons-

266

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

267

The Commission on Human Rights considered this Report and adopted a draft
General Assembly Resolution which was submitted by the Economic and Social
Council to the General Assembly and on 26th November 1968, the General Assembly
adopted this draft with certain modifications as its Resolution 2393 (XXIII)
inviting member governments to take various measures and requesting the
Secretary General to invite member governments "to inform him of their present
attitude to possible further restricting the use of the death penalty or to its
total abolition" and to submit a report to the Economic and Social Council. The
Secretary General accordingly submitted his report to the Economic and Social
Council at its 50th session in 1971. This Report contained a finding that "most
countries are gradually restricting the number of offences for which the death
penalty is to be applied and a few have totally abolished capital offences even
in war times". The discussion in the Economic and Social Council led to the
adoption of Resolution 1574 (L) of 20th May 1971 which was reaffirmed by General
Assembly Resolution 2857 (XXVI) of 20th December 1971. This latter resolution
clearly affirmed that: "In order to guarantee fully the right to life, provided
for in article 3 of the Universal Declaration of Human Rights, the main
objective to be pursued is that of progressively restricting the number of
offences for which capital punishment may be imposed, with a view to the
desirability of abolishing this punishment in all countries".

     (Emphasais supplied)

     In 1973 the Secretary General submitted to the Economic and Social Council
at its 54th session his third report on capital punishment as requested by the
Council and at this session, the Council adopted Resolution 1745 (LIV) in which,
inter alia, it invited the Secretary General to submit to it periodic updated
reports on capital punishment at five-year intervals starting from 1975. A
fourth report on capital punishment was accordingly submitted in 1975 and a
fifth one in 1980. Meanwhile the General Assembly at its 32nd Session adopted
Resolution 32/61 on 8th December 1977 and this Resolution re-affirmed "the
desirability of abolishing this" that is capital "punishment" in all countries.
268

     It will thus be seen that the United Nations has gradually shifted from the
position of a neutral observer concerned about but not committed on the question
of death penalty, to a position favouring the eventual abolition of the death
penalty. The objective of the United Nations has been and that is the standard
set by the world body that capital punishment should ultimately be abolished in
all countries. This normative standard set by the world body must be taken into
account in determining whether the death penalty can be regarded as arbitrary,
excessive and unreasonable so as to be constitutionally invalid. I will now
proceed to consider the relevant provisions of the Constitution bearing on the
question of constitutional validity of death penalty. It may be pointed out that
our Constitution is a unique document. It is not a mere pedantic legal text but
it embodies certain human values cherished principles and spiritual norms and
recognises and upholds the dignity of man. It accepts the individual as the
focal point of all development and regards his material, moral and spiritual
development as the chief concern of its various provisions. It does not treat
the individual as a cog in the mighty all-powerful machine of the State but
places him at the centre of the constitutional scheme and focuses on the fullest
development of his personality. The Preamble makes it clear that the
Constitution is intended to secure to every citizen social, economic and
political justice and equality of status and opportunity and to promote
fraternity assuring the dignity of the individual. The Fundamental Rights lay
down limitations on the power of the legislature and the executive with a view
to protecting the citizen and confer certain basic human rights which are
enforceable against the State in a court of law. The Directive Principles of
State Policy also emphasise the dignity of the individual and the worth of the
human person by obligating the State to take various measures for the purpose of
securing and protecting a social order in which justice social, economic and
political, shall inform all the institutions of national life. What is the
concept of social and economic justice which the founding fathers had in mind is
also elaborated in the various Articles setting out the Directive Principles of
State Policy. But all these provisions enacted for the purpose of ensuring the
dignity of the individual and providing for his material, moral and spiritual
development would be Meaningless and ineffectual unless there is rule of law to
invest them with life and force.

269

     Now if we look at the various constitutional provisions including the
Chapters on Fundamental Rights and Directive Principles of State Policy, it is
clear that the rule of law permeates the entire fabric of the Constitution and
indeed forms one of its basic features. The rule of law excludes arbitrariness;
its postulate is 'intelligence without passion' and 'reason freed from desire'.
Wherever we find arbitrariness or unreasonableness there is denial of the rule
of law. That is why Aristotle preferred a government of laws rather than of men.
'Law', in the context of the rule of law, does not mean any law enacted by the
legislative authority, howsoever arbitrary or despotic it may be. Otherwise even
under a dictatorship it would be possible to say that there is rule of law,
because every law made by the dictator howsoever arbitrary and unreasonable has
to be obeyed and every action has to be taken in conformity with such law. In
such a case too even where the political set up is dictatorial, it is law that
governs the relationship between men and men and between men and the State. But
still it is not rule of law as understood in modern jurisprudence, because in
jurisprudential terms, the law itself in such a case being an emanation from the
absolute will of the dictator it is in effect and substance the rule of man and
not of law which prevails in such a situation. What is necessary element of the
rule of law is that the law must not be arbitrary or irrational and it must
satisfy the test of reason and the democratic form of polity seeks to ensure
this element by making the framers of the law accountable to the people. Of
course, in a country like the United Kingdom, where there is no written
constitution imposing fetters on legislative power and providing for judicial
review of legislation, it may be difficult to hold a law to be invalid on the
ground that it is arbitrary and irrational and hence violative of an essential
element of the rule of law and the only remedy if at all would be an appeal to
the electorate at the time when a fresh mandate is sought at the election. But
the situation is totally different in a country like India which has a written
Constitution enacting Pundamental Rights and conferring power on the courts to
enforce them not only against the executive but also against the legislature.
The Fundamental Rights erect a protective armour for the individual against
arbitrary or unreasonable executive or legislative action.

     There are three Fundamental Rights in the Constitution which are of prime
importance and which breathe vitality in the concept

270

of the rule of law. They are Articles 14, 19 and 21 which, in the words of
Chandrachud, C.J. in Minverva Mills case(1) constitute a golden triangle. It is
now settled law as a result of the decision of this Court in Maneka Gandhi's
case (supra) that Article 14 enacts primarily a guarantee against arbitrariness
and inhibits State action whether legislative or executive, which suffers from
the vice of arbitrariness. This interpretation placed on Article 14 by the Court
in Maneka Gandhi's case has opened up a new dimension of that Article which
transcends the classificatory principle. For a long time in the evolution of the
constitutional law of our country, the courts had construed Article 14 to mean
only this, namely, that you can classify persons and things for the application
of a law but such classification must be based on intelligible differentia
having rational relationship to the object sought to be achieved by the law. But
the court pointed out in Maneka Gandhi's case that Article 14 was not to be
equated with the principle of classification. It was primarily a guarantee
against arbitrariness in State action and the doctrine of classification was
evolved only as a subsidiary rule for testing or determining whether a
particular State action was arbitrary or not. The Court said "Equality is
antithetical to arbitrariness. In fact, equality and arbitrariness are sworn
enemies. One belongs to the rule of law while the other to the whim and caprice
of an absolute monarch. Where an act is arbitrary, it is implicit in it that it
is unequal both according to political logic and constitutional law and is,
therefore, violative of Article 14." The Court thus laid down that every State
action must be non-arbitrary and reasonable; if it is not, the court would
strike it down as invalid.

     This view was reaffirmed by the Court in another outstanding decision in
Ramana Dayaram Shetty International Airport Authority of India & Ors. There
tenders were invited by the Airport Authority for giving a contract for running
a canteen at the Bombay Airport. The invitation for tender included a condition
that the applicant must have at least 5 years' experience as a registered 2nd
class hotelier. Several persons tendered. One was a person who had considerable
experience in the catering business but he was not a registered 2nd class
hotelier as required by the condition in the invitation to tender. Yet his
tender was accepted because it was the highest. The contract given to him was
challenged and the court held that the action of the Airport Authority was
illegal. The court pointed out that a ______________________

     (1) [1979] 3 SCR 1014.

271

new form of property consisting of government largesse in the shape of jobs,
cotracts licences, quotas, mineral rights and other benefits and services was
emerging in the social welfare State that India was and it was necessary to
develop new forms of protection in regard to this new kind of property.

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

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

272

   "There has been a certain lack of candor in much of the discussion of the
theme, or rather perhaps in the refusal to discuss it, as if judges must lose
respect and confidence by the reminder that they are subject to human
limitations... if there is anything of reality in my analysis of the judicial
process, they do not stand aloof on these chill and distant heights; and we
shall not help the cause of truth by acting and speaking as if they do. The
great tides and currents which engulf the rest of men do not turn aside in their
course and pass the judges by.

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

   "Much of law is designed to avoid the necessity for the judge to reach what
Holmes called his 'can't helps', his ultimate convictions or values. The force
of precedent, the close applicability of statute law, the separation of powers,
legal presumptions, statutes of limitations, rules of pleading and evidence, and
above all the pragmatic assessments of fact that point to one result whichever
ultimate values be assumed, all enable the judge in most cases to stop short of
a resort to his personal standards. When these prove unavailing, as is more
likely in the case of courts of last resort at the frontiers of the law, and
most likely in a supreme constitutional court, the judge necessarily resorts to
his own scheme of values. It may, therefore, be said that the most important
thing about a judge is his philosophy; and if it be dangerous for him to have
one, it is at all events less dangerous than the self-deception of having none.

That is why Lord Camden described the discretion of a judge to be "the law of
tyrants; it is always unknown; it is different in different men; it is casual
and depends on Constitution,Tamper, and Passion. In the best it is often times
Caprice, in the worst it is every Vice, Folly and Passion to which human Nature
is liable." Doe d. Hindson v. Kersey (1765) at p. 53 of the pamphlet published
in London by J. Wilkes in 1971 entitled "Lord Camden's Genuine Argument in
giving Judgment on the Ejectment between Hindson, and others against Kersey".
Megarry J. also points out in his delightful book "Miscellany at Law" that
"discretion is indeed a poor substitute for 273

principles, however, great the Judge". Therefore, where discretion is conferred
on an authority by a statute, the court always strains to find in the statute
the policy or principle laid down by the legislature for the purpose of guiding
the exercise of such discretion and, as pointed out by Subba Rao, J. as he then
was, the court sometimes even tries to discover the policy or principle in the
crevices of the statute in order to save the law from the challenge of Article
14 which would inevitably result in striking down of the law if the discretion
conferred were unguided and unfettered. But where after the utmost effort and
intense search, no policy or principle to guide the exercise of discretion can
be found, the discretion conferred by the law would be unguided and
unstructured, like a tumultuous river overflowing its banks and that would
render the law open to attack on ground of arbitrariness under Article 14. So
also Article 19 strikes against arbitrary legislation in so far as such
legislation is violative of one or the other provision of clause (1) of that
Article. Sub-clauses (a) to (g) of clause (1) of Article 19 enact various
Fundamental freedoms; sub-clause (1) guarantees freedom of speech and
expression, sub-clause (b), freedom to assemble peacefully and without arms;
sub-clause (c), freedom to form associations or unions; sub-clause (d), freedom
to move freely throughout the territory of India; sub-clause (e) to reside and
settle in any part of the territory of India and sub-clause (g), freedom to
practise any profession or to carry on any occupation, trade or business. There
was originally sub-clause (f) in clause (1) of Article 19 which guaranteed
freedom to acquire, hold and dispose of property but that sub-clause was deleted
by the Constitution (Forty Fourth Amendment) Act 1978. Now the freedoms
guaranteed under these various sub-clauses of clause (1) of Article 19 are not
absolute freedoms but they can be restricted by law, provided such law satisfies
the requirement of the applicable provision in one or the other of clauses (2)
to (6) of that Article. The common basic requirement of the saving provision
enacted in clauses (2) to (6) of Article 19 is that the restriction imposed by
the law must be reasonable. If, therefore, any law is enacted by the legislature
which violates one or the other provision of clauses (1) of Article 19, it would
not be protected by the saving provision enacted in clauses (2) to (6) of that
Article, if it is arbitrary or irrational, because in that event the restriction
imposed by it would a fortiorari be unreasonable.

274

     The third Fundamental Right which strikes against arbitrariness in State
action is that embodied in Article

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

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

This Article also came up for interpretation in Maneka Gandhi's case (supra).
Two questions arose before the Court in that case : one was as to what is the
content of the expression "personal liberty" and the other was as to what is the
meaning of the expression "except according to procedure established by law". We
are not concerned here with the first question and hence I shall not dwell upon
it. But so far as second question is concerned, it provoked a decision from the
Court which was to mark the beginning of amost astonishing development of the
law. It is with this decision that the Court burst forth into un-precedented
creative activity and gave to the law a new dimenston and a new vitality. Until
this decision was given, the view held by this Court was that Article 21 merely
embodied a facet of the Diceyian concept of the rule of law that no one can be
deprived of his personal liberty by executive action unsupported by law. It was
intended to be no more than a protection against executive action which had no
authority of law. If there was a law which provided some sort of procedure, it
was, enough to deprive a person of his life or personal liberty. Even if, to
take an example cited by S.R. Das, J, in his Judgment in A.K. Gopalan v. State
of Madras(1) the law provided that the Bishop of Rochester be boiled in old, it
would be valid under Article 21. But in Maneka Gandhi's case (supra) which marks
a watershed in the history of development of constitutional law in our country,
this Court for the first time took the view that Article 21 affords protection
not only against executive action but also against legislation and any law which
deprives a person of his life or personal liberty would be invalid unless it
prescribes a procedure for such deprivation which is reasonable fair and just.
The concept of reasonableness, it was held, runs through the entire fabric of
the Constitution and it is not enough for the law merely to provide some
semblance of a procedure but the procedure for depriving a ___________

     (1) [1950] SCR 88.

275

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

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

_____________________

     (1) [1981] 2 SCR 516.

276

chains of the Constitution"; and lastly there must be an independent judicially
to protect the citizen against excesses of executive and legislative power.
Fortunately, whatever uncharitable and irresponsible critics might say when they
find a decision of the court going against the view held by them, we can
confidently assert that we have in our country all these three elements
essential to the rule of law. It is plain and indisputable that under our
Constitution law cannot be arbitrary or irrational and if it is, it would be
clearly invalid, whether under Article 14 or Article 19 or Article 21 whichever
be applicable. It is in the light of these constitutional provisions that I must
consider whether death penalty provided under Section 302 of the Indian Penal
Code read with section 354 sub-section (3) of the Code of Criminal Procedure is
constitutionally valid. Now one thing is certain that the Constitution does not
in so many terms prohibit capital panishment. In fact, it recognises death
sentence as one of the penalties which may be imposed by law. Article 21
provides inter alia that no one shall be deprived of his life except according
to procedure established by law and this clearly postulates that a person may be
deprived of his life in accordance with the procedure prescribed by law or in
other words, law may provide a procedure, which of course according to the
decision of this Court in Maneka Gandhi's case (supra) must be reasonable, fair
and just procedure, for inflicting death penalty on a person depriving him of
his life. Clause(c) of Article 72 also recognises the possibility of a sentence
of death being imposed on a person convicted of an offence inasmuch as it
provides that the President shall have the power to suspend, remit or commute
the sentence of any person who is convicted of an offence and sentenced to
death. It is therefore not possible to contend that the imposition of death
sentence for conviction of an offence is in all cases forbidden by the
Constitution. But that does not mean that the infliction of death penalty is
blessed by the Constitution or that it has the imprimatur or seal of approval of
the Constitution. The Constitution is not a transient document but it is meant
to endure for a long time to come and during its life, situations may arise
where death penalty may be found to serve a social purpose and its prescription
may not be liable to be regarded as arbitrary or unreasonable and therefore to
meet such situations, the Constitution had to make a provision and this it did
in Article 21 and clause (c) of Article 72 so that, even where death penalty is
prescribed by any 277

law and it is otherwise not unconstitutional, it must still comply with the
requirement of Article 21 and it would be subject to the clemency power of the
President under clause (c) of Article 72. The question would however still
remain whether the prescription of death penalty by any particular law is
violative of any provision of the Constitution and is therefore rendered
unconstitutional. This question has to be answered in the present case with
reference to section 302 of the Indian Penal Code read with section 354 sub-
section (3) of the Code of Criminal Procedure.

     Now in order to answer this question it is necessary first of all to
examine the legislative trend in our country so far as the imposition of death
penalty is concerned. A "brief survey of the trend of legislative endeavours"
will, as pointed out by Krishna Iyer, J. in Rajendra Prasad v. State of U.P.(1)
"serve to indicate whether the people's consciousness has been protected towards
narrowing or widening the scope for infliction of death penalty." If we look at
the legislative history of the relevant provisions of the Indian Penal Code and
the Code of Criminal Procedure we find that in our country there has been a
gradual shift against the imposition of death penalty. "The legislative
development, through several successive amendments had shifted the punitive
centre of gravity from life taking to life sentence." Sub-section (5) of section
367 of the Code of Criminal Procedure 1898 as it stood prior to its amendment by
Act 26 of 1955 provided :

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

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

__________________

     (1) [1979] 3 SCC 646.

278

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

   "When the conviction is for a sentence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence awarded and, in the case of
sentence of death, special reasons for such sentence."

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

     It is also interesting to note that a further legislative attempt towards
restricting and rationalising death penalty was made in the late seventies. A
Bill called Indian Penal Code (Amendment) Bill 1972 for amending section 302 was
passed by the Rajya Sabha in 1978 and it was pending in the Lok Sabha at the
time when Rajendra

279

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

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

   "To my mind, it is ultimately a question of respect for life and human
approach to those who commit grievous hurts to others. Death sentence is no
remedy for such crimes. A more humane and constructive remedy is to remove the
culprit concerned from the normal milieu and treat him as a mental case. I am
sure a large proportion of the murderers could be weaned away from their path
and their mental condition sufficiently improved to become useful citizens. In a
minority of cases, this may not be possible. They may be kept in prison houses
till they die a natural death. This may cast a heavier economic burden on
society than hanging. But I have no doubt that a humane treatment even of a
murderer will enhance man's dignity and make society more human.

         (emphasis added)

280

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

   "I regard the death penalty as a savage and immoral institution which
undermines the moral and legal foundations of a society. A state, in the person
of its functionaries who like all people are inclined to making superficial
conclusions, who like all people are subject to influence, connections,
prejudices and egocentric motivations for their behaviour, takes upon itself the
right to the most terrible and irreversible act-the deprivation of life. Such a
State cannot expect an improvement of the moral atmosphere in its country. I
reject the notion that the death penalty has any essential deterrent effect on
potential offenders. I am convinced that the contrary is true-that savagery
begets only savagery...I am convinced that society as a whole and each of its
members individually, not just the person who comes before the courts, bears a
responsibility for the occurrence of a crime. I believe that the death penalty
has no moral or practical justification and represents a survival of barbaric
customs of revenge. Blood thirsty and calculated revenge with no temporary
insanity on the part of the judges, and therefore, shameful and disgusting."
(emphasis added)

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

   "Twelve of those by whose labour we live, the very men whom we have depraved
and are still depraving by every means in our power-from the poison of vodka to
the terrible falsehood of a creed we impose on them with all our might, but do
not ourselves believe in- twelve of those men strangled with cords by those whom
we feed and clothe and house, and who have depraved and still continue to
deprave them. Twelve husbands, fathers, and sons, from among those upon whose
kindness, industry and simplicity alone rests the whole of Russian life, are
seized, imprisoned, and shackled. Then their hands are tied

281

     behind their backs lest they should seize the ropes by which they are to be
hung, and they are led to the gallows."

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

   "We shall look upon crime as a disease. Evil will be treated in charity
instead of anger. The change will be simple and sublime. The cross shall
displace the scaffold, reason is on our side, feeling is on our side, and
experience is on our side."

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

   "Destruction of individuals can never be a virtuous act. The evil doers
cannot be done to death. Today there is a movement afoot for the abolition of
capital punishment and attempts are being made to convert prisons into hospitals
as if they are persons suffering from a disease."

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

     I may also at this stage make a few observations in regard to the barbarity
and cruelty of death penalty, for the problem of constitutional validity of
death penalty cannot be appreciated in its proper perspective without an
adequate understanding of the true nature of death penalty and what it involves
in terms of human anguish and suffering. In the first place, death penalty is
irrevocable; it cannot be recalled. It extinguishes the flame of life for ever
and is plainly destructive of the right to life, the most precious right of all,
a right without which enjoyment of no other rights is possible. It silences for
ever a living being and despatches him to that 'undiscovered country from whose
bourn no traveller returns' nor, 282

once executed, 'can stored urn or animated bust back to its mansion call the
fleeting breath'. It is by reason of its cold and cruel finality that death
penalty is qualitatively different from all other forms of punishment. If a
person is sentenced to imprisonment, even if it be for life, and subsequently it
is found that he was innocent and was wrongly convicted, he can be set free. Of
course the imprisonment that he has suffered till then cannot be undone and the
time he has spent in the prison cannot be given back to him in specie but he can
come back and be restored to normal life with his honour vindicated if he is
found innocent. But that is not possible where a person has been wrongly
convited and sentencted to death and put out of existence in pursuance of the
sentence of death. In his case, even if any mistake is subsequently discovered,
it will be too late; in every way and for every purpose it will be too late, for
he cannot be brought back to life. The execution of the sentence of death in
such a case makes miscarriage of justice irrevocable. On whose conscience will
this death of an innocent man lie ? The State through its judicial
instrumentality would have killed an innocent man. How is it different from a
private murder ? That is why Lafayatte said : "I shall ask for the abolition of
the penalty of death until I have the infallibility of human judgment
demonstrated me."

     It is argued on behalf of the retentionists that having regard to the
elaborate procedural safeguards enacted by the law in cases involving capital
punishment, the possibility of mistake is more imaginary than real and these
procedural safeguards virtually make conviction of an innocent person
impossible. But I do not think this argument is well founded. It is not
supported by factual data. Hugo Bedau in his well known book, "The Death Penalty
in America" has individually documented seventy four cases since 1893 in which
it has been responsibly charged and in most of them proved beyond doubt, that
persons were wrongly convicted of criminal homicide in America. Eight out of
these seventy four, though innocent, were executed. Redin, Gardener, Frank and
others have specifically identified many more additional cases. These are cases
in which it has been possible to show from discovery of subsequent facts that
the convictions were erroneous and innocent persons were put to death, but there
may be many more cases where by reason of the difficulty of uncovering the facts
after conviction, let alone after execution, it may not be possible to establish
that there was miscarriage of justice. The jurist Olivecroix, applying a
calculus of probabilities to the chance of judicial error, concluded as far back

283

as in 1860 that approximately one innocent man was condemned out of every 257
cases. The proportion seems low but only in relation to moderate punishment. In
relation to capital punishment, the proportion is infinitivelly high. When Hugo
wrote that he preferred to call the guillotine Lesurques (the name of an
innocent man guillotined in the Carrier de Lyon case) he did not mean that every
man who was decapitated was a Lesurques, but that one Lesurques was enough to
wipe out the value of capital punishment for ever. It is interesting to note
that where cases of wrongful execution have come to public attention, they have
been a major force responsible for bringing about abolition of death penalty.
The Evans case in England in which an innocent man was hanged in 1949 played a
large role in the abolition of capital punishment in that country. Belgium also
abjured capital punishment on account of one such judicial error and so did
Wisconsin, Rhode Island and Maine in the United States of America.

     Howsoever careful may be the procedural safeguards erected by the law
before death penalty can be imposed, it is impossible to eliminate the chance of
judicial error. No possible judicial safeguards can prevent conviction of the
innocent. Students of the criminal process have identified several reasons why
innocent men may be convicted of crime. In the first place, our methods of
investigation are crude and archaic. We are, by and large, ignorant of modern
methods of investigation based on scientific and technological advances. Our
convictions are based largely on oral evidence of witnesses. Often, witnesses
perjure themselves as they are motivated by caste, communal and factional
considerations. Some times they are even got up by the police to prove what the
police believes to be a true case. Sometimes there is also mistaken eye witness
identification and this evidence is almost always difficult to shake in cross-
examination. Then there is also the possibility of a frame up of innocent men by
their enemies. There are also cases where an over zealous prosecutor may fail to
disclose evidence of innocence known to him but not known to the defence. The
possibility of error in judgment cannot therefore be ruled out on any
theoretical considerations. It is indeed a very live possibility and it is not
at all unlikely that so long as death penalty remains a constitutionally valid
alternative, the court or the State acting through the instrumentality of the
court may have on its conscience the blood of an innocent man. 284

     Then again it is sometimes argued that, on this reasoning, every criminal
trial must necessarily raise the possibility of wrongful conviction and if that
be so, are we going to invalidate every form of punishment ? But this argument,
I am afraid, is an argument of despair. There is a qualitative difference
between death penalty and other forms of punishment. I have already pointed out
that the former extinguishes the flame of life altogether and is irrevocable and
beyond recall while the latter can, at least to some extent be set right, if
found mistaken. This vital difference between death penalty and imprisonment was
emphasized by Mahatma Gandhi when he said in reply to a German writer :

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

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

     It is also necessary to point out that death penalty is barbaric and
inhuman in its effect, mental and physical upon the condemned man and is
positively cruel. Its psychological effect on the prisoner in the Death Row is
disastrous. One Psychiatrist has described Death Row as a "grisly laboratory"
"the ultimate experiment alstress in which the condemned prisoner's personality
is incredibly brutalised." He points out that "the strain of existence on Death
Row is very likely to produce....... acute psychotic breaks." Vide the article
of "West on Medicine and Capital Punishment." Some inmates are driven to ravings
or delusions but the majority sink into a sort of catatonic numbness under the
over-whelming stress." Vide "The Case against Capital Punishment" by the
Washington Research Project. Intense mental suffering is inevitably associated
with confinement under sentence of death. Anticipation of approaching 285

death can and does produce stark terror. Vide article on "Mental Suffering under
Sentence of Death". 57 Iowa Law Review 814. Justice Brennan in his opinion in
Furman v. Georgia(1) gave it as a reason for holding the capital punishment to
be unconstitutional that mental pain is an inseparable part of our practice of
punishing criminals by death, for the prospect of pending execution exacts a
frightful toll during the inevitable long wait between the imposition of
sentence and the actual infliction of death." Krishna Iyer, J. also pointed out
in Rajendra Prasad's case (supra) that because the condemned prisoner had "the
hanging agony hanging over his head since 1973 (i.e. for six years)..."he must
by now be more a vegetable than a person." He added that "the excruciation of
long pendency of the death sentence with the prisoner languishing near-solitary
suffering all the time, may make the death sentence unconstitutionally cruel and
agonising." The California Supreme Court also, in finding the death penalty per
se unconstitutional remarked with a sense of poignancy : "The cruelty of capital
punishment lies not only in the execution itself and the pain incident thereto,
but also in the dehumanising effects of the lengthy imprisonment prior to
execution during which the judicial and administrative procedures essential to
due process of law are carried out. Penologists and medical experts agree that
the process of carrying out a verdict of death is often so degrading and
brutalizing to the human spirit as to constitute psychological torture."

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

     (1) 408 US 238.

     (2) 136 US 436.

     (3) 134 US 160.

286

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

   "...the chief and the worst pain is perhaps not inflicted by wounds, but by
your certain knowledge that in an hour, in ten minutes, in half a minute, now
this moment your soul will fly out of your body, and that you will be a human
being no longer, and that that's certain-the main thing is that it is certain
..Take a soldier and put him in front of a cannon in battle and fire at him and
he will still hope, but read the same soldier his death sentence for certain,
and he will go mad or burst out crying. Who says that human nature is capable of
bearing this without madness ? Why this cruel, hideous, unnecessary and useless
mockery ? Possibly there are men who have sentences of death read out to them
and have been given time to go through this torture, and have then been told,
You can go now, you've been reprieved. Such men could perhaps tell us. It was of
agony like this and of such horror that Christ spoke. No you can't treat a man
like that." 287

We have also accounts of execution of several prisoners in the United States
which show how in these last moment condemned prisoners often simply
disintegrate. Canns has in frank and brutal language bared the terrible
psychological cruelty of capital punishment :

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

There can be no stronger words to describe the utter depravity and inhumanity of
death sentence. The physical pain and suffering which the execution of the
sentence of death involves is also no less cruel and inhuman. In India, the
method of execution followed is hanging by the rope. Electrocution or
application of lethal gas has not yet taken its place as in some of the western
countries. It is therefore with reference to execution by hanging that I must
consider whether the sentence of death is barbaric and inhuman as entailing
physical pain and agony. It is no doubt true that the Royal Commission on
Capital Punishment 1949-53 found that hanging is the most humane method of
execution and so also in Ichikawa v. Japan,(1) the Japanese Supreme Court held
that execution by hanging does not corrospond to 'cruel punishment' inhibited by
Article 36 of the Japanese Constituion. But whether amongst all the methods of
execution, hanging is the most humane or in the view of the Japanese Supreme
Court, hanging is not cruel punishment within the meaning of Article 36, one
thing is clear that hanging is undoubtedly accompanied by intense physical
torture and pain. Warden Duffy of San Quentin, a high security

__________

     (1) Vide : David Pannick on "Judicial Review of Death Penalty, page 73,

288

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

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

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

289

     instances the cause of death was strangulation and asphyxin."

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

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

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

21. So far as this challenge is concerned the learned counsel appearing on
behalf of the petitioner contended that the imposition of death penalty under
section 302 of the Indian Penal Code read with section 354 sub-section (3) of
the Code of Criminal Procedure was arbitrary and unreasonable, firstly because
it was cruel and inhuman, disproportionate and excessive, secondly because it
was totally unnecessary and did not serve any social purpose or advance any
constitutional value and lastly because the discretion conferred on the court to
award death penalty was not guided by any policy or principle laid down by the
legislature but was wholly arbitrary. The Union of India as also the States
supporting it sought to counter this argu- 290

ment of the petitioners by submitting first that death penalty is neither cruel
nor inhuman, neither disproportionate nor excessive, secondly, that it does
serve a social purpose inasmuch as it fulfils two penological goals namely,
denunciation by the community and deterrence and lastly, that the judicial
discretion in awarding death penalty is not arbitrary and the court can always
evolve standards or norms for the purpose of guiding the exercise of its
discretion in this punitive area. These were broadly the rival contentions urged
on behalf of the parties and I shall now proceed to examine them in the light of
the observations made in the preceding paragraphs. The first question that
arises for consideration on these contentions is-and that is a vital question
which may well determine the fate of this challenge to the constitutional
validity of death penalty-on whom does the burden of proof lie in a case like
this ? Does it lie on the petitioners to show that death penalty is arbitrary
and unreasonable on the various grounds urged by them or does it rest on the
State to show that death penalty is not arbitrary or unreasonable and serves a
legitimate social purpose. This question was debated before us at great length
and various decisions were cited supporting one view or the other. The earliest
decision relied on was that of Saghir Ahmed v. State of Uttar Pradesh(1) where
it was held by this Court that if the petitioner succeeds in showing that the
impugned law ex facie abridges or transgresses the rights coming under any of
the sub-clauses of clause (1) of Article 19, the onus shifts on the respondent
State to show that the legislation comes within the permissible limits
authorised by any of clauses (2) to (6) as may be applicable to the case, and
also to place material before the court in support of that contention. If the
State fails to discharge this burden, there is no obligation on the petitioner
to prove negatively that the impugned law is not covered by any of the
permissive clauses. This view as to the onus of proof was reiterated by this
Court in Khyerbari Tea Company v. State of Assam(2). But contended the
respondents, a contrary trend was noticeable in some of the subsequent decisions
of this Court and the respondents relied principally on the decision in B.
Banerjee v. Anita Pan(3) where Krishna Iyer, J. speaking on behalf of himself
and Beg, J. as he then was, _________________________

     (1) [1955] 1 SCR 707.

     (2) [1964] 5 SCR 975.

     (3) [1975] 2 S.C.R. 774.

291

recalled the following statement of the law from the Judgment of this Court in
Ram Krishna Dalmia v. S.R. Tendolkar & others: (1)

   "there is always a presu mption in favour of the constitutionality of an
enactment and the burden is upon him who attacks it to show that there has been
a clear transgression of the constitutional principles." and

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

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

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

     These observations of Krishna Iyer, J. undoubtedly seem to support the
contention, of the respondents, but it may be pointed out that what was said by
this Court in the passage quoted above from the judgment in Ram Krishna Dalmia's
case (supra) on which reliance was placed by Krishna Iyer, J. was only with
reference to the challenge under Article 14 and the Court was not considering
there the challenge under Articles 19 or 21. This statement of the law contained
in Ram Krishna Dalmia's case (supra) could not therefore be applied straightaway
without anything more in a case where a law was challenged under Articles 19 or
21. The fact, however, remains that Krishna Iyer, J. relied on this statement of
the law even though the case before him involved a challenge under Article 19(1)
(f) and not under Article 14. Unfortunately, it seems that the attention of the
learned Judge was not invited to the decisions of this Court in Saghir Ahmed's
case and Khyerbari Tea Company's case

_______________________

     (1) [1959] SCR 297.

     (2) [1957] SCR 874.

292

(supra) which were cases directly involving challenge under Article 19. These
decisions were binding on the learned Judge and if his attention had been drawn
to them, I am sure that he would not have made the observations that he did
casting on the petitioners the onus of establishing "excessiveness or perversity
in the restrictions imposed by the statute" in a case alleging violation of
Article 19. These observations are clearly contrary to the law laid down in
Saghir Ahmed and Khyerbari Tea Company cases (supra) The respondents also relied
on the observations of Fazal Ali, J. in Pathumma v. State of Kerala (1). There
the constitutional validity of the Kerala Agriculturists' Debt Relief Act 1970
was challenged on the ground of violation of both Articles 14 and 19(1) (f).
Before entering upon a discussion of the arguments bearing on the validity of
this challenge, Fazal Ali. J. speaking on behalf of himself, Beg, C.J., Krishna
Iyer and Jaswant Singh. JJ. observed that the court will interfere with a
statute only "when the statute is clearly violative of the right conferred on
the citizen under Part III of the Constitution" and proceeded to add that it is
on account of this reason "that courts have recognised that there is always a
presumption in favour of the constitutionality of a statute and the onus to
prove its invalidity lies on the party which assails the same." The learned
Judge then quoted with approval the following passage from the Judgment of S.R.
Das, C.J. in Mohd. Hanif v. State of Bihar (2)

   "The pronouncements of this Court further establish, amongst other things,
that there is always a presumption in favour of the constitutionality of an
enactment and that the burden is upon him, who attacks it, to show that there
has been a clear violation of the constitutional principles. The Courts, it is
accepted, must presume that the legislature understands and correctly
appreciates the needs of its own people, that its laws are directed to problems
made manifest by experience and that its discriminations are based on adequate
grounds."

It is difficult to see how these observations can be pressed into service on
behalf of the respondents. The passage from the judgment of

_______________________

     (1) [1970] 2 SCR 537.

     (2) [1959] S.C.R. 629.

293

S.R. Das, C.J. in Mohd. Hanif's case (supra) relied upon by Fazal Ali, J. occurs
in the discussion relating to the challenge under Article 14 and obviously it
was not intended to have any application in a case involving challenge under
Article 19 or 21. In fact, while discussing the challenge to the prevention of
cow slaughter statutes under Article 19(1)(g), S.R. Das, C.J. proceeded to
consider whether the restrictions imposed by the impugned statutes on the
Fundamental Rights of the petitioners under Article 19(1)(g) were reasonable in
the interest of the general public so as to be saved by clause (6) of Article
19. Moreover, the observations made by Fazal Ali, J. were general in nature and
they were not directed towards consideration of the question as to the burden of
proof in cases involving violation of Article 19. What the learned Judge said
was that there is always a presumption in favour of the constitutionality of a
statute and the court will not interfere unless the statute is clearly violative
of the Fundamental Rights conferred by Part III of the Constitution. This is a
perfectly valid statement of the law and no exception can be taken to it. There
must obviously be a presumption in favour of the constitutionality of a statute
and initially it would be for the petitioners to show that it violates a
Fundamental Right conferred under one or the other sub-clauses of clause (1) of
Article 19 and is therefore unconstitutional, but when that is done, the
question arises, on whom does the burden of showing whether the restrictions are
permissible or not, lie? That was not a question dealt with by Fazal Ali, J. and
I cannot therefore read the observations of the learned Judge as, in any manner,
casting doubt on the validity of the statement of law contained in Saghir Ahmed
and Khyerbari Tea Company's cases (supra). It is clear on first principle that
subclauses (a) to (g) of clause (1) of Article 19 enact certain fundamental
freedoms and if sub clauses (2) to (6) were not there, any law contravening one
or more of these fundamental freedoms would have been unconstitutional. But
clauses (2) to (6) of Article 19 save laws restricting these fundamental
freedoms, provided the restrictions imposed by them fall within certain
permissible categories. Obviously therefore, when a law is challenged on the
ground that it imposes restrictions on the freedom guaranteed by one or the
other subclause of clause (1) of Article 19 and the restrictions are shown to
exist by the petitioner, the burden of establishing that the restrictions fall
within any of the permissive clauses (2) to (6) which may be applicable, must
rest upon the State. The State would have to produce material for satisfying the
court that the restrictions imposed

294

by the impugned law fall within the appropriate permissive clause from out of
clauses (2) to (6) of Article 19. Of course there may be cases where the nature
of the legislation and the restrictions imposed by it may be such that the court
may, without more, even in the absence of any positive material produced by the
State, conclude that the restrictions fall within the permissible category, as
for example, where a law is enacted by the legislature for giving effect to one
of the Directive Principles of State Policy and prima facie, the restrictions
imposed by it do not appear to be arbitrary or excessive. Where such is the
position, the burden would again shift and it would be for the petitioner to
show that the restrictions are arbitrary or excessive and go beyond what is
required in public interest. But, once it is shown by the petitioner that the
impugned law imposes restrictions which infringe one or the other sub-clause of
clause (1) of Article 19, the burden of showing that such restrictions are
reasonable and fall within the permissible category must be on the State and
this burden the State may discharge either by producing socio economic data
before the court or on consideration of the provisions in the impugned law read
in the light of the constitutional goals set out in the Directive Principles of
State Policy. The test to be applied for the purpose of determining whether the
restrictions imposed by the impugned law are reasonable or not cannot be cast in
a rigid formula of universal application, for, as pointed out by Patanjali
Shastri, J. in State of Madras v. V.J. Row (1) "no abstract standard or general
pattern of reasonableness can be laid down as applicable to all cases". The
nature of the right alleged to have been infringed, the underlying purpose of
the restrictions imposed, the extent and urgency of the evil sought to be
remedied, the value of human life, the disproportion of the imposition, the
social philosophy of the Constitution and the prevailing conditions at the time
would all enter into the judicial verdict. And we would do well to bear in mind
that in evaluating such elusive factors and forming his own conception of what
is reasonable in all the circumstances of a given case, it is inevitable that
the social philosophy and the scale of values of the judge participating in the
decision would play a very important part.

     Before I proceed to consider the question of burden of proof in case of
challenge under Article 14, it would be convenient first to

     (1) [1952] SCR 597.

295

deal with the question as to where does the burden of proof lie when the
challenge to a law enacted by the legislature is based on violation of Article
21. The position in regard to onus of proof in a case where the challenge is
under Article 21 is in my opinion much clearer and much more free from doubt or
debate than in a case where the complaint is of violation of clause (1) of
Article 19. Wherever there is deprivation of life, and by life I mean not only
physical existence, but also use of any faculty or limb through which life is
enjoyed and basic human dignity, or of any aspect of personal liberty, the
burden must rest on the State to establish by producing adequate material or
otherwise that the procedure prescribed for such deprivation is not arbitrary
but is reasonable, fair and just. I have already discussed various circumstances
bearing upon the true nature and character of death penalty and these
circumstances clearly indicate that it is reasonable to place on the State the
onus to prove that death penalty is not arbitrary or unreasonable and serves a
compelling State interest. In the first place, death penalty destroys the most
fundamental right of all, namely, the right to life which is the foundation of
all other fundamental rights. The right to life stands on a higher footing than
even personal liberty, because personal liberty too postulates a sentient human
being who can enjoy it. Where therefore a law authorises deprivation of the
right to life the reasonableness, fairness and justness of the procedure
prescribed by it for such deprivation must be established by the State. Such a
law would be 'suspect' in the eyes of the court just as certain kinds of
classification are regarded as 'suspect' in the United States of America.
Throwing the burden of proof of reasonableness, fairness and justness on the
State in such a case is a homage which the Constitution and the courts must pay
to the righ to life. It is significant to point out that even in case of State
action depriving a person of his personal liberty, this Court has always cast
the burden of proving the validity of such action on the State, when it has been
challenged on behalf of the person deprived of his personal liberty. It has been
consistently held by this Court that when detention of a person is challenged in
a habeas corpus petition, the burden of proving the legality of the detention
always rests on the State and it is for the State to justify the legality of the
detention. This Court has shown the most zealous regard for personal liberty and
treated even letters addressed by prisoners and detenus as writ petitions and
taken action upon them and called upon the State to show how the detention is
justified. If this be the anxiety and concern shown by

296

the court for personal liberty, how much more should be the judicial anxiety and
concern for the right to life which indisputably stands on a higher pedestal.
Moreover, as already pointed out above, the international standard or norm set
by the United Nations is in favour of abolition of death penalty and that is the
ultimate objective towards which the world body is moving. The trend of our
national legislation is also towards abolition and it is only in exceptional
cases for special reasons that death sentence is permitted to be given. There
can be no doubt that even under our national legislation death penalty is looked
upon with great disfavour. The drastic nature of death penalty involving as it
does the possibility of error resulting in judicial murder of an innocent man as
also its brutality in inflicting excruciating mental anguish severe
psychological strain and agonising physical pain and suffering on the condemned
prisoner are strong circumstances which must compel the State to justify
imposition of death penalty. The burden must lie upon the State show that death
penalty is not arbitrary and unreasonable and serves a legitimate social
purpose, despite the possibility of judicial error in convicting and sentencing
an innocent man and the brutality and pain, mental as well as physical, which
death sentence invariably inflicts upon the condemned prisoner. The State must
place the necessary material on record for the purpose of discharging this
burden which lies upon it and if it fails to show by presenting adequate
evidence before the court or otherwise that death penalty is not arbitrary and
unreasonable and does serve a legitimate social purpose, the imposition of death
penalty under section 302 of the Indian Penal Code read with section 354 sub-
section (3) of the Code of Criminal Procedure would have to be struck down as
violative of the protection of Article 21.

     So far as the question of burden of proof in a case involving challenge
under Article 14 is concerned, I must concede that the decisions in Ram Krishan
Dalmia's case (supra) and Mohd. Hannif Qureshi's case (supra) and several other
subsequent decisions of the Court have clearly laid down that there is a
presumption in favour of constitutionality of a statute and the burden of
showing that it is arbitrary or discriminary lies upon the petitioner, because
it must be presumed "that the legislature understands and correctly appreciates
the needs of its own people, that its laws are directed to problems made
manifest by experience and that its discriminations are based on adequate
grounds." Sarkaria, J. has pointed out in the majority judgment that underlying
this presumption of constitu-

297

tionality "is the rationale of judicial restraint, a recognition of the limits
of judicial review, a respect for the boundaries of legislative and judicial
functions and the judicial responsibility to guard the tresspass from one side
or the other." The learned Judge with a belief firmly rooted in the tenets of
mechanical jurisprudence, has taken the view that "the primary function of the
Courts is to interpret and apply the laws according to the will of those who
made them and not to transgress into the legislative domain of policy making."
Now there can be no doubt that in adjudicating upon the constitutional validity
of a statute, the Judge should show deference to the legislative judgment and
should not be anxious to strike it down as invalid. He does owe to the
legislature a margin of tolerance and he must constantly bear in mind that he is
not the legislator nor is the court a representative body. But I do not agree
with Sarkaria, J. when he seems to suggest that the judicial role is, as it was
for Francis Bacon, 'jus dicere and not jus dare; to interpret law and not to
make law or give law.' The function of the Court undoubtedly is to interpret the
law but the interpretative process is highly creative function and in this
process, the Judge, as pointed out by Justice Holmes, does and must legislate.
Lord Reid ridiculed as 'a fairytale' the theory that in some Aladdin's cave is
hidden the key to correct judicial interpretation of the law's demands and even
Lord Diplock acknowledged that "The court may describe what it is doing in tax
appeals as interpretation. So did the priestess of the Delphic Oracle. But
whoever has final authority to explain what Parliament meant by the words that
it used, makes law as if the explanation it has given were contained in a new
Act of Parliament. It will need a new Act of Parliament to reverse it."
Unfortunately we are so much obsessed with the simplicities of judicial
formalism which presents the judicial role as jus dicere, that, as pointed out
by David Pannick in his "Judicial Review of the Death Penalty", "we have, to a
substatial extent, ignored the Judge in administering the judicial process. So
heavy a preoccupation we have made with the law, its discovery and its agents
who play no creative role, that we have paid little, if any, regard to the
appointment, training, qualities, demeanour and performance of the individuals
selected to act as the mouth of the legal oracle." It is now acknowledged by
leading jurists all over the world that judges are not descusitized and
passionless instruments which weigh on inanimate and impartial scales of legal
judgment, the evidence and the arguments presented on each side of the case.
They are not political

298

and moral enuchs able and willing to avoid impregnating the law with their own
ideas and judgment. The judicial exercise in constitutional adjudication is
bound to be influenced, consciously or subconsciouly, by the social philosophy
and scale of values of those who sit in judgment. However, I agree with
Sarkaria, J. that ordinarily the judicial function must be characterised by
deference to legislative judgment because the legislature represents the voice
of the people and it might be dangerous for the court to trespass into the
sphere demarcated by the Constitution for the legislature unless the legislative
judgment suffers from a constitutional infirmity. It is a trite saying that the
Court has "neither force nor will but merely judgment" and in the exercise of
this judgment, it would be a wise rule to adopt to presume the constitutionality
of a statute unless it is shown to be invalid. But even here it is necessary to
point out that this rule is not a rigid inexorable rule applicable at all times
and in all situations. There may conceivably be cases where having regard to the
nature and character of the legislation, the importance of the right affected
and the gravity the injury caused by it and the moral and social issues involved
in the determination, the court may refuse to proceed on the basis of
presumption of constitutionality and demand from the State justification of the
legislation with a view to establishing that it is not arbitrary or
discriminatory. There are times when commitment to the values of the
Constitution and performance of the constitutional role as guardian of
fundamental rights demands dismissal of the usual judicial deference to
legislative judgment. The death penalty, of which the constitutionality is
assailed in the present writ petitions, is a fundamental issue to which ordinary
standards of judicial review are inappropriate. The question here is one of the
most fundamental which has arisen under the Constitution, namely, whether the
State is entitled to take the life of a citizen under cover of judicial
authority. It is a question so vital to the identity and culture of the society
and so appropriate for judicial statement of the standards of a civilised
community-often because of legislative apathy-that "passivity and activism
become platitudes through which judicial articulation of moral and social values
provides a light to guide an uncertain community." The same reasons which have
weighed with me in holding that the burden must lie on the State to prove that
the death penalty provided under section 302 of the Indian Penal Code read with
section 354 sub-section (3) of the Code of Criminal Procedure is not arbitrary
and unreasonable and serves a legitimate penological purpose where 299

the challenge is under Article 21 must apply equally to cast the burden of the
proof upon the State where the challenge is under Article 14.

     Now it is an essential element of the rule of law that the sentence imposed
must be proportionate to the offence. If a law provides for imposition of a
sentence which is disproportionate to the offence, it would be arbitrary and
irrational, for it would not pass the test of reason and would be contrary to
the rule of law and void under Articles 14, 19 and 21. The principle of
proportionality is implicit in these three Articles of the Constitution. If, for
example, death penalty was prescribed for the simple offence of theft-as indeed
it was at one time in the seventeenth century England-it would be clearly
excessive and wholly disproportionate to the offence and hence arbitrary and
irrational by any standards of human decency and it would be impossible to
sustain it against the challenge of these three Articles of the Constitution. It
must therefore be taken to be clear beyond doubt that the proportionality
principle constitutes an important constitutional criterion for adjudging the
validity of a sentence imposed by law. The Courts in the United States have also
recognised the validity of the proportionality principle. In Gregg v. Goergia
(1) Stewart, J. speaking for the plurality of the American Supreme Court said
that "to satisfy constitutional requirements, the punishment must not be
excessive...the punishment must not be out of proportion to the severity of the
crime. This constitutional criterion was also applied in Coker v. Georgia (2) to
invalidate the death penalty for rape of an adult woman. While, J. with whom
Stewarts and Blackmun, JJ. agreed, said, with regard to the offence of rape
committed against an adult woman : "a sentence of death is grossly
disproportionate and excessive punishment for the crime of rape and is therefore
forbidden by the Eighth Amendment as cruel and unusual punishment". Likewise in
Lockette v. Ohio (3) where the defendant sat outside the scene of robbery
waiting to drive her accomplices away and contrary to plan, the robbers murdered
three victims in the course of their robbery and she was convicted and sentenced
to death by resort to the doctrine of vicarious liability, 300

the Supreme Court of the United States applying the same principle of
proportionality held the death sentence unconstitutional. Marshall, J. pointed
out that because the appellant was convicted under a theory of vicarious
liability, the death penalty imposed on her "violates the principle of
proportionality embodied in the Eighth Amendment's prohibition" and White J.
also subscribed to the same reasoning when he said, "the infliction of death
upon those who had no intent to bring about the death of the victim is
.....grossly out of proportion to the severity of the crime". Of course, the
Supreme Court of the United States relied upon the Eighth Amendment which
prohibits cruel and unusual treatment or punishment and we have no such express
prohibition in our Constitution, but this Court has held in Francis Mullen's
case (supra) that protection against torture or cruel and inhuman treatment or
punishment is implicit in the guarantee of Article 21 and therefore even on the
basic of the reasoning in these three American decisions, the principle of
proportionallty would have relevance under our Constitution. But, quite apart
from this, it is clear and we need not reiterate what we have already said
earlier, that the principle of proportionality flows directly as a necessary
element from Articles 14, 19 and 21 of the Constitution. We find that in Canada
too, in the case of Rex v. Miller and Cockriell (1) the principle of
proportionality has been recognised by Laskin C.J. speaking on behalf of
Canadian Supreme Court as "one of the constitutional criteria of 'cruel and
unusual treatment or punishment' prohited under the Canadian Bill of Rights.
Laskin C.J. pointed out in that case "It would be patent to me, for example,
that death as a mandatory penalty today for theft would be offensive to s. 2(b).
That is because there are social and moral considerations that enter into the
scope and application of section 2(b). Harshness of punishment and its severity
in consequences are relative to the offence involved but, that being said, there
may still be a question (to which history too may be called in aid of its
resolution) whether the punishment prescribed is so excessive as to outrage
standards of decency. That is not a precise formula for s. 2(b) but I doubt
whether a more precise one-can be found." Similarly, as pointed out by Mr. David
Pannick in his book on "Judicial Review of the Death Penalty" international
charters of rights express or imply the principle of proportionality. Article 7
of the International Covenant on Civil and Political Rights forbids torture and
cruel

301

inhuman or degrading treatment or punishment and so does Article A 3 of the
European Convention on Human Rights. It has been suggested by Francis Jacobs, a
commentator on the European Convention that "among the factors to be considered
in deciding whether the death penalty, in particular circumstances, was contrary
to Article 3, would be whether it was disproportionate to the offence.

     It is necessary to point out at this stage that death penalty cannot be
said to be proportionate to the offence merely because it may be or is believed
to be an effective deterrent against the commission of the offence. In Coker v.
Georgia (supra) the Supreme Court of the United States held that capital
punishment is disproportionate to rape "even though it may measurably serve the
legitimate ends of punishment and therefore is not invalid for its failure to do
so." The absence of any rational purpose to the punishment inflicted is a
separate ground for attacking its constitutionality. The existence of a rational
legislative purpose for imposing the sentence of death is a necessary condition
of its constitutionality but nota sufficient one. The death penalty for theft
would, for example, deter most potential thieves and may have a unique deterrent
effect in preventing the commission of the offence; still it would be wholly
disproportionate and excessive, for the social effect of the penalty is not
decisive of the proportionality to the offence. The European Court of Human
Rights also observed in Tyrer v. United Kingdom (1) that "a punishment does not
lose its degrading character just because it is believed to be, or actually is,
an effective deterrent or aid to crime control. Above all, as the court must
emphasize, it is never permissible to have recourse to punishments which are
contrary to Article 3, whatever their deterrent effect may be." The utilitarian
value of the punishment has nothing to do with its proportionality to the
offence. It would therefore be no answer in the present case for the respondents
to say that death penalty has a unique deterrent effect in preventing the crime
of murder and therefore it is proportionate to the offence. The proportionality
between the offence and death penalty has to be judged by reference to objective
factors such as international standards or norms or the climate of international
opinion, modern penological theories and evolving standards of human decency. I
have already pointed out and I need not repeat that the international standard
or norm which 302

is being evolved by the United Nations is against death penalty and so is the
climate of opinion in most of the civilized countries of the world. I will
presently show that penological goals also do not justify the imposition of
death penalty for the offence of murder. The prevailing standards of human
decency are also incompatible with death penalty. The standards of human decency
with reference to which the proportionality of the punishment to the offence is
required to be judged vary from society to society depending on the cultural and
spiritual tradition of the society, its history and philosophy and its sense of
moral and ethical values. To take an example, if a sentence of cutting off the
arm for the offence of theft or a sentence of stoning to death for the offence
of adultery were prescribed by law, there can be no doubt that such punishment
would be condemned as barbaric and cruel in our country, even though it may be
regarded as proportionate to the offence and hence reasonable and just in some
other countries. So also the standards of human decency vary from time to time
even within the same society. In an evolutionary society, the standards of human
decency are progressively evolving to higher levels and what was regarded as
legitimate and reasonable punishment proportionate to the offence at one time
may now according to the envolving standards of human decency, be regarded as
barbaric and inhuman punishment wholly disproportionate to the offence. There
was a time when in the United Kingdom a sentence of death for the offence of
theft or shop lifting was regarded as proportionate to the offence and therefore
quite legitimate and reasonable according to the standards of human decency then
prevailing, but today such punishment would be regarded as totally
disproportionate to the offence and hence arbitrary and unreasonable. The
question, therefore, is whether having regard to the international standard or
norm set by the United Nations in favour of abolition of death penalty, the
climate of opinion against death penalty in many civilized countries of the
world and the prevailing standards of human decency, a sentence of death for the
offence of murder can be regarded as satisfying the test of proportionality and
hence reasonable and just. I may make it clear that the question to which I am
addressing myself is only in regard to the proportionality of death sentence to
the offence of murder and nothing that I say here may be taken as an expression
of opinion on the question whether a sentence of death can be said to be
proportionate to the offence of treason or any other offence involving the
security of the State. 303

     Now in order to determine what are the prevailing standards of human
decency, one cannot ignore the cultural ethos and spiritual tradition of the
country. To quote the words of Krishna Iyer, J. in Raiendra Prasad's case "The
values of a nation and ethos of a generation mould concepts of crime and
punishment. So viewed, the lode-star of penal policy today, shining through the
finer culture of former centuries, strengthens the plea against death
penalty...The Indian cultural current also counts and so does our spiritual
chemistry, based on divinity in everyone, catalysed by the Buddha Gandhi
compassion. Many humane movements and sublime souls have cultured the higher
consciousness of mankind." In this land of Buddha and Gandhi, where from times
immemorial, since over 5000 years ago, every human being is regarded as
embodiment of Brahman and where it is a firm conviction based not only on faith
but also on experience that "every saint has a past and every sinner a future",
the standards of human decency set by our ancient culture and nourished by our
constitutional values and spiritual norms frown upon imposition of death penalty
for the offence of murder. It is indisputable that the Constitution of a nation
reflects its culture and ethos and gives expression to its sense of moral and
ethical values. It affords the surest indication of the standards of human
decency cherished by the people and sets out the socio-cultural objectives and
goals towards which the nation aspires to move. There can be no better index of
the ideals and aspirations of a nation than its Constitution. When we turn to
our Constitution, we find that it is a humane document which respects the
dignity of the individual and The worth of the human person and directs every
organ of the State to strive for the fullest development of the per - sonality
of every individual. Undoubtedly, as already pointed out above, our Constitution
does contemplate death penalty, and at the time when the Constitution came to be
enacted, death penalty for the offence of murder was on the statute book, but
the entire thrust of the Constitution is in the direction of development of the
full potential of every citizen and the right to life alonggwith basic human
dignity is highly prized and cherished and torture and cruel or in-human
treatment or punishment which would be degrading and destructive of human
dignity are constitutionally forbidden. Moreover, apart from the humanistic
quintessence of the Constitution, the thoughts, deeds and words of the great men
of this country provide the clearest indication of the prevailing standards of
human

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decency. They represent the conscience of the nation and are the most authentic
spokesmen of its culture and ethos. Mahatma Gandhi, the Father of the Nation
wrote long ago in the Harijan. "God alone can take life because He alone gives
it. He also said and this I may be permitted to emphasize even at the cost of
repetition: "Destruction of individuals can never be a virtuous act. The evil
doers cannot be done to death . . Therefore all crimes including murder will
have to be treated as a disease." I have also quoted above what Jai Prakash
Narain said in his message to the Delhi Conference against Death Penalty. The
same humanistic approach we find in the utterances of Vinoba Bhave. His approach
to the problem of dacoits in Chambal Valley and the manner in which he brought
about their surrender through soulforce bear eloquent testimony to the futility
of death penalty and shows how even dacoits who have committed countless murders
can be reclaimed by the society. But, the more important point is that this
action of Vinoba Bhave was applauded by the whole nation and Dr. Rajendra Prasad
who was then the President of India, sent the following telegram to Binoba Bhave
when he came to know that about 20 dacoits from the Chambal region had responded
to the Saint's appeal to surrender .

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

These words coming from the President of India who is the Head of the nation
reflect not only his own admiration for the manner in which Vinoba Bhave
redeemed the dacoits but also the admiration of the entire nation and that shows
that what Vinoba Bhave did, had the approval of the people of the country and
the standards of human decency prevailing amongst the people commended an
approach favouring reformation and rehabilitation of the dacoits rather than
their conviction for the various offences of murder com- mitted by them and the
imposition of death penalty on them. More over, it is difficult to see bow death
penalty can be regarded as pro-

305

portionate to the offence of murder when legislatively it has been A ordained
that life sentence shall be the rule and it is only in exceptional cases for
special reasons that death penalty may be imposed. It is obvious from the
provision enacted in section 354(3) of the - Code of Criminal Procedure that
death sentence is legislatively regarded as disproportionate and excessive in
most cases of murder and it is only in exceptional cases what Sarkaria, J.
speaking on -. - behalf of the majority, describes as "the rarest of rare"
cases, that it can at all be contended that death sentence is proportionate to
the offence of murder. But, then the legislature does not indicate as to what
are those exceptional cases in which death sentence may be regarded as
proportionate to the offence and, therefore, reasonable and just. Merely because
a murder is heinous or horrifying, it cannot be said that death penalty is
proportionate to the offence when it is not so for a simple murder. How does it
become proportionate to the offence merely because it is a 'murder most foul'. I
fail to appreciate how it should make any difference to the penalty whether the
murder is a simple murder or a brutal one. A murder is a murder all the same
whether it is carried out quickly and inoffensively or in a gory and gruesome
manner. If death penalty is not proportionate to the offence in the former case,
it is difficult to see how it can be so in the latter. I may usefully quote in
this connection the words of Krishna Iyer, J. in Rajendra Prasad's case where
the learned Judge said;

   "Speaking illustratively, is shocking crime, without more, good to justify
the lethal verdict ? Most murders are horrifying, and an adjective adds but
sentiment, not argument. The personal story of an actor in a shocking murder, if
considered, may bring tears and soften the sentence. He P . might have been a
tortured child, an ill-treated orphan, a jobless starveling, a badgered brother,
a wounded son, a tragic person hardened by societal cruelty or vengeful justice,
- even a Hemlet or Parasurarna. He might have been an - - angelic boy but thrown
into mafia company or inducted into dopes and drugs by parental neglect or
morally-ment-ally retarded or disordered. Imagine a harijan village hacked out
of existence by the genocidal fury of a kulak ' group and one survivor, days
later, cutting to pieces the villain of the earlier outrage. Is the court in
error in reckoning the prior provocative barbarity as a sentencing factor ? 306

   Another facet. May be, the convict's poverty had disabled his presentation of
the social milieu or other circumstances of extenuation in defence.. When life
is at stake, can such frolics of fortune play with judicial , verdicts ?

   "The nature of the crime-too terrible to contemplate has often been regarded
a traditional peg on which to hang a death penalty. Even Ediga Anamma (supra)
has hardened here. But 'murder most foul' is not the test, speaking J-
scientifically. The doer may be a patriot, a revolutionary, a weak victim of an
overpowering passion who, given better a environment, may be a good citizen, a
good administrator, a good husband, a great saint. What was Valmiki once ? And
that sublime spiritual star, Shri Aurobindo tried once - for murder but by
history's fortune acquitted."

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

     I will now examine whether death penalty for the offence of murder serves
any legitimate social purpose. There are three justi-

307

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

     It would be convenient first to examine the examine the constutionality of
death penalty with reference to the reform tory end of punishment. The civilised
goal of criminal justice is the reformation of the criminal and death penalty
means abandonment of this goal for those who suffer it. Obviously death penalty
cannot serve the reformatory goal because it extinguishes life and puts an end
to any possibility of reformation. In fact, it defeats the reformatory end of
punishment. But the answer given by the protagonists of death penalty to this
argument is that though there may be a few murderers whom it may be possible to
reform and rehabilitate, what about those killers who cannot be reformed and
rehabilitated ? Why should the death penalty be not awarded to them ? But even
in their cases, I am afraid, the argument cannot be sustained. There is no way
of accurately predicting or knowing with any degree of moral certainty that a
murderer will not be reformed or is incapable of reformation. All we know is
that there have been many many successes even with the most vicious of cases.
Was Jean Valjean of Les Miserbles not reformed by the kindness and magnanimity
of the Bishop ? Was Valmiki a sinner not reformed and did he not become the
author of one of the world's greatest epics ? Were the dacoits of Chambal not
transformed by the saintliness of Vinoba Bhave and Jai Prakash Narain ? We have
also the examples of Nathan Leopold, Paul Crump and Edger Smith who were guilty
of the most terrible and gruesome murders but who, having escaped the gallows,
became decent and productive human beings. These and many other examples clearly

308

show that it is not possible to know before hand with any degree of cartainty
that a murderer is beyond reformation. Then would it be right to extinguish the
life of a human being merely on the basis of speculation and it can only be
speculation and not any definitive inference-that he cannot be reformed. There
is divinity in every man and to my mind no one is beyond redemption. It was
Ramakrishna Paramhansa, one of the greatest saints of the last century, who
said, "Each soul is potentially divine". There is Brahman in every living being,
serve khalu idan bramh, as the Upanishad says and to the same effect we find a
remarkable utterance in the Brahmasukta of Atharvaveda where a sage exclaims:
"Indeed these killers are Brahman; these servants (or slaves) are Brahmaa; these
cheats and rogues are also manifestation of one and the same Brahman itself."
Therefore once the dross of Tamas is removed and satva is brought forth by
methods of rehabilitation such as community service, yoga, meditation and sat
sang or holy influence, a change definitely takes place and the man is reformed.
This . is not just a fancy or idealised view taken by Indian philosophical
thought, but it also finds Support from the report of the Royal Commission on
Capital Punishment set up in the United Kingdom where it has been said: "Not
that murderers in general are incapable of reformation, the evidence plainly
shows the contrary. Indeed, as we shall see later" (in paragraphs 651-652) "the
experience of countries without capital punishment indicates that the prospects
of reformation are at least as favourable with murderers as with those who have
committed other kinds of serious crimes." The hope of reforming even the worst
killer is based on exeperience as well as faith and to legitimate the death
penalty even in the so called exceptional cases where a killer is said to be
beyond reformation, would be to destroy this hope by sacrificing it at the altar
of superstition and irrationality. I would not therefore, speaking for myself,
be inclined to recognise any exception, though Justice Krishna Iyer has done so
in Rajendra Prasad's case, that death panalty may be legally permissible where
it is found that a killer is such a monster or beast that he can never be-
reformed. Moreover, it may be noted, as pointed out by Albert Camus, that in
resorting to this philosophy of elimination of social monsters, we would be
approaching some of the worst ideas of totalitarianism or the selective racism
which the Hitler regime propounded. Sir Ernest Gowers, Chairman of the Royal
Commission on Capital Punishment also emphasized the disturbing implications of
this argument favouring elimination of

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a killer who is a social monster and uttered the following warning A "If it is
right to eliminate useless and dangerous members of the community why should the
accident of having committed a capital offence determine who should be selected.
These ar. Only a tiny proportion and not necessarily the most dangerous.... It
can lead to Nazism." This theory that a killer who is believed to be a social
monster or beast should be eliminated in defence of the society cannot therefore
be accepted and it cannot provide a justification for imposition of death
penalty even in this narrow class of cases.

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

   "The punishment inflicted for grave crimes should adequately reflect the
revulsion felt by the great majority of citizens for them. It is a mistake to
consider the objects of punishment as being deterrent or reformative or
preventive and nothing else. The ultimate justification of any punishment is not
that it is a deterrent but that it is the emphatic denunciation by the community
of a crime, and from this point of view there are some murders which in the
present state of opinion demand the most emphatic denunciation of all, namely,
the death penalty.. The truth is that some crimes are so outrageous that it,
irrespective of whether it is a deterrent or not."

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The Royal Commission on Capital Punishment seemed to agree with Lord Denning's
view about this justification for the death penalty and observed.".. the law
cannot ignore the public demand for retribution which heinous crimes undoubtedly
provoke; it would be generally agreed that, though reform of the criminal law
ought sometimes, to give a lead to public opinion, it is dangerous to move too
far in advance of it." Though garbed in highly euphemistic language by labelling
the sentiment underlying this observation as reprobation and not revenge, its
implication can hardly be disguised that the death penalty is considered
necessary not because the preservation of the society demands it, but because
the society wishes to avenge itself for the wrong done to it. Despite its high
moral tone and phrase, the denunciatory theory is nothing but an echo of what
Stephen said in rather strong language: "The criminal law stands to the passion
of revenge in much the same relation as marriage to the sexual appetite." The
denunciatory theory is a remnant of a primitive society which has no respect for
the dignity of man and the worth of the human person and seeks to assuage its
injured conscience by taking revenge on the wrong doer. Revenge is an elementary
passion of a brute and betrays lack of culture and refinement. The manner in
which a society treats crime and criminals affords the surest index of its
cultural growth and development. Long ago in the year 1910 Sir Winston Churchill
gave expression to this social truth when he said in his inimitable language:
"The mood and temper of the public with regad to the treatment of crime and the
criminals is one of the most unfailing tests of civilization of any country. A
calm dispassionate recognition of the right of accused, and even of the
convicted, criminal against the State, a constant heart searching by all charged
with the duty of punishment tireless efforts towards the discovery of curative
and , regenerative processes, unfailing faith that there is a treasure if you
can only find it in the heart of every man-these are the symbols, which, in
treatment of crime and the criminals, mark and measure the stored-up strength of
a nation and are sign and proof of the living virtue in it.-

A society which is truly cultured-a society which is reared on a spiritual
foundation like the Indian society-can never harbour a

311

 feeling of revenge against a wrong doer. On the contrary, it would A try to
reclaim the wrong doer and find the treasure that is in his heart. The wrong
doer is as much as part of the society as anyone else and by exterminating him,
would the society not injure itself ? If a limb of the human body becomes
diseased, should we not try to cure it instead of amputating it ? Would the
human body not be partially disabled: would it not be rendered imperfect by the
. amputation ? Would the amputation not leave a scar on the human body ? Would
the human body not cease to be what it was intended by its maker? But if the
diseased limb can be cured, would it not be so much better that the human body
remains intact in all its perfection. Similarly the society also would benefit
if one of its members who has gone astray and done some wrong can be reformed
and regenerated. It will strengthen the fabric of the society and increase its
inner strength and vitality. Let it not be forgotten that no human being is
beyond redemption. There is divinity in every human being, if only we can create
conditions in which it can blossom forth in its full glory, and effulgence. It
can dissolve the dross of criminality and make God out of man. "Each soul", said
Shri Ramakrishna Paramhansa, "is potentially divine" and it should be the
endeavour of the society to reclaim the wrong doer and bring out the divinity J
in him and not to destroy him in a fit of anger or revenge. Retaliation can have
no place in a civilised society and particularly in the Land of Buddha and
Gandhi. The law of Jesus must prevail over the lex tallionis of Moses, "Thou
shalt not kill" must penologically over power "eye for an eye and tooth for a
tooth." The society has made tremendous advance in the last few decades and
today the concept of human rights has taken firm root in our soil and there is a
tremendous wave of consciousness in regard to the dignity and divinity of man.
To take human life even with the sanction of the law and under the cover of
judicial authority, is retributive barbarity and violent futility: travesty of
dignity and violation of the divinity of man. So lang as the offender can be
reformed through the rehabilitatory therapy which may be administered to him in
the prison or other correctional institute and he can be reclaimed as a useful
citizen and made conscious of the divinity within him by techniques such as
meditation, how can there be any moral justification for liquidating him out of
existence ? In such a case, it would be most unreasonable and arbitrary to
extinguish the flame of life within him, for no social purpose would be served
and no consti- 312

tutional value advanced by doing so. I have already pointed out that death
penalty runs counter to the reformatory theory of punishment and I shall
presently discuss the deterrent aspect of death penalty and show that death
penalty has not greater deterrent effect than life imprisonment. The only ground
on which the death penalty may therefore be sought to be justified is
reprobation which as already pointed out, is nothing but a different name for
revenge and retaliation. But in a civilised society which believes in the
dignity and worth of the human person, which acknowledges and protects the right
to life as the most precious possession of mankind, which recognises the
divinity in man and describes a his kind as "Amaratsaya Putra" that is "children
of Immortality", it is difficult to appreciate now retaliatory motivation can
ever be countenanced as a justificatory reason. This reason is wholly inadequate
since it does not justify punishment by its results, but it merely satisfies the
passion for revenge masquerading as righteousness.

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

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

   "The punishment or treatment of offenders is directed toward one or more of
three ends: (I) to discourage and act as a deterrent upon future criminal
activity. (2) to confine the offender so that he may not harm society; and (3)
to correct and rehabilitate the offender. There is no

313

     place in the scheme for punishment for its own sake, the product simply of
vengeance or retribution." Similarly, the California Supreme Court has held that
"to conclude that the Legislature was motivated by a desire for vengeance" would
be "a conclusion not permitted in view of modern theories of penology."

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

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

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

The Prime Minister of Canada Mr. Pierre Trudeaux, addressing the Canadian
Parliament, pleading for abolition of death penalty, posed a question in the
same strain: "Are we as a society so lacking in respect for ourselves, so
lacking in hope for human betterment, so socially bankrupt that we are ready to
accept state vengeance as our penal philosophy"

It is difficult to appreciate how a feeling of vengeance whether on the
individual wronged or the society can ever be regarded as a healthy sentiment
which the State should foster. It is true that when a heinous offence is
committed not only the individual who suffers

314

as a result of the crime but the entire society is oppressed with a feeling of
revulsion, but as Arthur Koestler has put it in his inimitable style in his
"Reflections on Hanging": "Though easy to dismiss in reasoned argument on both
moral and logical grounds, the desire for vengeance has deep, unconscious roots
and is roused when we feel strong indignation or revulsion-whether the reasoning
mind approves or not. This psychological fact is largely ignored in abolitionist
propaganda-yet it has to be accepted as a fact. The admission that even
confirmed abolitionists are not proof against occasional vindictive impulses
does not mean that such impulses should be legally sanctioned by society, any
more than we sanction some other unpalatable instincts of our biological
inheritance. Deep inside every civilized being there lurks a tiny Stone Age man,
dangling a club to robe and rape, and screaming an eye for an eye. But we would
rather not have that little fur-clad figure dictate the law of the land." I have
no doubt in my mind that if the only justification for the death penalty is to
be found in revenge and retaliation, it would be clearly arbitrary and
unreasonable punishment falling foul of Articles 14 and 21. I must then turn to
consider the deterrent effect of death penalty, for deterrence is undoubtedly an
important goal of punishment.

     The common justification which has been put forward on behalf of the
protagonists in support of capital punishment is that it acts as a deterrent
against potential murderers. This is, to my mind, a myth, which has been
carefully nurtured by a society which is actuated not so much by logic or reason
as by a sense of retribution. It is really the belief in retributive justice
that makes the death penalty attractive but those supporting it are not inclined
to confess to their instinct for retribution but they try to bolster with
reasons their unwillingness to abandon this retributive instinct and seek to
justify the death penalty by attribution to it a deterrent effect. The question
whether the death penalty has really and truly 315

a deterrent effect is an important issue which has received careful attention
over the last 40 years in several countries including the United States of
America. Probably no single subject in criminology has been studied more.
Obviously, no penalty will deter all murders and probably any severe penalty
will deter many. The key question therefore is not whether death penalty has a
deterrent effect but whether death penalty has a greater deterrent effect than
life sentence. Does death penalty deter potential murderers better than life
imprisonment ? I shall presently consider this question but before I do so let
me repeat that the burden of showing that death penalty is not arbitrary and
unreasonable and serves a legitimate penological goal is on the State. I have
already given my reasons for taking this view on principle but I find that the
same view has also been taken by the Supreme Judicial Court of Massachusettes in
"Commonwealth v. O'Neal (No.2)(1) where it has been held that because death
penalty impinges on the right to life itself, the onus lies on the State to show
a compelling State interest to justify capital punishment and since in that case
the State was unable to satisfy this onus, the Court ruled that death penalty
for murder committed in the course of rape or attempted rape was
unconstitutional. The Supreme Judicial Court of Massachusttes also reiterated
the same view in opinion of the Justices 364 N.E. 2d 184 while giving its
opinion whether a Bill before the House of Representatives was compatible with
Article 26 of the Constitution which prohibits cruel or unusual punishment. The
majority Judges stated hat Article 26 "forbids the imposition of a death penalty
in this Commonwealth in the absence of a showing on the part of the Commonwealth
that the availability of that penalty contributes more to the achievement of a
legitimate State purpose-for example, the purpose of deterring criminal conduct
than the availability in like cases of the penalty of life imprisonment." It is
therefore clear that the burden rests on the State to establish by producing
material before the Court or otherwise, that death penalty has greater deterrent
effect than life sentence in order to justify its imposition under the law. If
the State fails to discharge this burden which rests upon it, the Court would
have to hold that death penalty has not been shown to have greater deterrent
effect and it does not therefore serve a rational legislative purpose.

316

     The historical course through which death penalty has passed in the last
150 years shows that the theory that death penalty acts as a greater deterrent
than life imprisonment is wholly unfounded. Not more than a century and a half
ago, in a civilised country like England, death penalty was awardable even for
offences like shop lifting, cattle stealing and cutting down of trees. It is
interesting to note that when Sir Samuel Romully brought proposals for abolition
of death penalty for such offences, there was a hue and cry from lawyers,
judges, Parliamentarians and other so called protectors of social order and they
opposed the proposals on the grounds that death penalty acted as a deterrent
against commission of such offences and if this deterrent was removed, the
consequences would be disastrous. The Chief Justice said while opposing
abolition of capital punishment for shop-lifting:

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

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

The Bill for abolition of death penalty for cutting down a tree was opposed by
the Lord Chancellor in these terms: "It did undoubtedly seem a hardship that so
heavy a punishment as that of death should be affixed to the cutting down of a
single tree, or the killing or wounding of a cow.

317

     But if the Bill passed in its present state a person might root up or cut
down whole acres of plantations or destroy the whole of the stock of cattle of a
farmer without being subject to capital punishment." Six times the House of
Commons passed the Bill to abolish capital punishment for shop lifting and six
times the House of Lords threw out the Bill, the majority of one occasion
including all the judicial members, one Arch Bishop and six Bishops. It was
firmly believed by these opponents of abolition that death penalty acted as a
deterrent and if it was abolished, offences of shop-lifting etc would increase.
But it is a matter of common knowledge that this belief was wholly unjustified
and the abolition of death penalty did not have any adverse effect on the
incidence of such offences. So also it is with death penalty for the offence of
murder. It is an irrational belief unsubstantiated by any factual data or
empirical research that death penalty acts as a greater deterrent than life
sentence and equally unfounded is the impression that the removal of death
penalty will result in increase of homicide. The argument that the rate of
homicide will increase if death penalty is removed from the statute book has
always been advanced by the established order out of fear psychosis, because the
established order has always been apprehensive that if there is any change and
death penalty is abolished, its existence would be imperilled. This argument has
in my opinion no validity because, beyond a superstitious belief for which there
is no foundation in fact and which is based solely on unreason and fear, there
is nothing at all to show that death penalty has any additionally deterrent
effect not possessed by life sentence. Arthur Koestler tells us an interesting
story that in the period when pick-pockets were punished by hanging in England,
other thieves exercised their talents in the crowds sorrounding the scaffold
where the convicted pick-pocket was being hanged. Statistics compiled during the
last 50 years in England show that out of 250 men hanged, 170 had previously
attended one or even two public executions and yet they were not deterred from
committing the offence of murder which ultimately led to their conviction and
hanging. It is a myth nurtured by superstition and fear that death penalty has
some special terror for the criminal which acts as a deterrent against the
commission of the crime. Even an eminent judge like Justice Frank Furter of the
Supreme Court of the United States expressed the same opinion when he said in
the course of his

318

examination before the Royal Commission on Capital Punishment:

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

The Royal Commission on Capital Punishment, after four years of investigation
which took it throughout the continent and even to the United States, also came
to the same conclusion: "Whether the death penalty is used or not and whether
executions are frequent or not, both death penalty states and abolition states
show rates which suggests that these rates are conditioned by other factors than
the death penalty."

and then again, it observed in support of this conclusion: "The general
conclusion which we have reached is that there is no clear evidence in any of
the figures we have examined that the abolition of capital punishment has led to
an increasing homicide rate or that its reintroduction has led to a fall."
Several studies have been carried out in the United States of America for the
purpose of exploring the deterrent effect of death penalty and two different
methods have been adopted. The first and by far the more important method seeks
to prove the case of the abolitionists by showing that the abolition of capital
punishment in other countries has not led to an increase in the incidence of
homicide. This is attempted to be shown either by comparing the homicide
statistics of countries where capital punishment has been abolished with the
statistics for the same period of countries where it has been retained or by
comparing statistics of a single country in which capital punishment has been
abolished, for periods before and after abolition or where capital punishment
has been reintroduced, then for the period before and after its reintroduction.
The second method relates to comparison of the number of executions in a country
in particular years with the homicide rate in the years succeeding. Now, so far
as the comparison of homicide statistics of countries which have abolished
capital punishment with the statistics of countries which have retained it, is
concerned, it may not yield any definitive inference, because in most cases
abolition or retention of death

319

penalty may not be the only differentiating factor but there may be other
divergent social, cultural or economic factors which may affect the homicide
rates. It is only if all other factors are equal and the only variable is the
existence or non-existence of death penalty that a proper comparison can be made
for the purpose of determining whether death penalty has an additional deterrent
effect which life sentence does not possess, but that would be an almost
impossible controlled experiment. It may however be possible to find for
comparison a small group of countries or States, preferably contiguous and
closely similar in composition of population and social and economic conditions
generally, in some of which capital punishment has been abolished and in others
not. Comparison of homicide rates in these countries or States may afford a
fairly reliable indication whether death penalty has a unique deterrent effect
greater than that of life sentence. Such groups of States have been identified
by Professor Sellin in the United States of America and similar conditions
perhaps exist also in Newzealand and the Australian States. The figures of
homicide rate in these States do not show any higher incidence of homicide in
States which have abolished death penalty than in those which have not.
Professor Sellin points out that the only conclusion which can be drawn from
these figures is that there is no clear evidence . Of any influence of death
penalty on the homicide rates of these States. In one of the best known studies
conducted by him, Professor Sellin compared homicide rates between 1920 and 1963
in abolition States with the rates in neighboring and similar retention States.
He found that on the basis of the rates alone, it was impossible to identify the
abolition States within each group. A similar study comparing homicide rates in
States recently abolishing the death penalty and neighboring retention States
during the 1960's reached the same results. Michigan was the first State in the
United States to abolish capital punishment and comparisons between Michigan and
the bordering retention states of Ohio and Indiana States with comparable
demographic characteristics did not show any significant differences in homicide
rates. Professor Sellin therefore concluded: "You cannot tell from .... the
homicide rates alone, in contiguous, which are abolition and which are retention
states; this indicates that capital crimes are dependent upon factors other than
the mode of punishment."

     Students of capital punishment have also studied the effect of abolition
and reintroduction of death penalty upon the homicide

320

rate in a single state. If death penalty has a significant deterrent effect?
abolition should produce a rise in homicides apart from the general trend and
reintroduction should produce a decline. After examining statistics from 11
states, Professor Sellin concluded that "there is no evidence that the abolition
of capital punishment generally causes an increase in criminal homicides, or
that its reintroduction is followed by a decline. The explanation of changes in
homicide rates must be sought elsewhere." Some criminologists have also examined
the short term deterrent effects of capital punishment. One study compared the
number of homicides during short periods before and after several well-
publicized executions during the twenties and thirties in Philadelphia. It was
found that there were significantly more homicides in the period after the
executions than before-the opposite of what the deterrence theory would suggest
other studies have also shown that in those localities where capital punishment
is carried out, the incidence of homicide does not show any decline in the
period immediately following well-publicized executions when, if death penalty
had any special deterrent effect, such effect would be greatest. Sometimes, as
Bowers points out in his book on "Executions in America" the incidence of
homicide is higher. In short, there is no correlation between the ups and downs
of the homicide rate on the one hand and the presence or absence of the death
penalty on the other.

     I may also refer to numerous other studies made by jurists and sociologists
in regard to the deterrent effect of death penalty Barring only one study made
by Ehrlich to which I shall presently refer, all the other studies are almost
unanimous that death penalty has no greater deterrent effect than life
imprisonment. Dogan D. Akman, a Canadian Criminologist, in a study made by him
on the basis of data obtained from the records of all Canadian penitentiaries
for the years 1964 and 1965 observed that the threat of capital punishment has
little influence on potential assaulters. So also on the basis of comparison of
homicide and execution rates between Queensland and other Australian States for
the period 1860-1920, Barber and Wilson concluded that the suspension of capital
punishment from 1915 and its abolition from 1922 in Qneensland did not have any
significant effect on the murder rate. Chambliss, another Criminologist, also
reached the same conclusion in his Article on "Types of Deviance and the
Effectiveness of Legal Sanctions" (1967) Wisconsin

321

Law Review 703 namely, that "given the preponderance of evi- dence, it seems
safe to conclude that capital punishment does not act as an effective deterrent
to murder." Then we have the opinion of Fred J. Cook who says in his Article on
"Capital Punishment: Does it Prevent Crime ?" that "abolition of the death
penalty may actually reduce rather than encourage murder." The European
Committee on Crime Problems of the Council of Europe gave its opinion on the
basis of data obtained from various countries who are Members of the Council of
Europe that these data did not give any "positive indication regarding the value
of capital punishment as a deterrent". I do not wish to burden this judgment
with reference to all the studies which have been conducted at different times
in different parts of the world but I may refer to a few of them, namely
"Capital Punishment as a Deterrent to Crime in Georgia" by Frank Gibson, "The
Death Penalty in Washington State" by Hayner and Crannor, Report of the
Massachusett Special Commission Relative to the Abolition of the Death Penalty
in Capital Cases, "The use of the Death Penalty-Factual Statement" by Walter
Reckless, "Why was Capital Punishment resorted in Delaware" by Glenn W.
Samuelson, "A Study in Capital Punishment" by Leonard o. Savitz, "The Deterrent
Influence of the Death Penalty" by Karl F. Schuessler, "Murder and the Death
Penalty" by E.H. Sutherland, "Capital Punishment: A case for Abolition" by
Tidmarsh, Halloran and Connolly, "Can the Death Penalty Prevent Crime" by George
B. Vold and "Findings on Deterrence with Regard to Homicide" by Wilkens and
Feyerherm. Those studies, one and all, have taken the view that "statistical
findings and case studies converge to disprove the claim that the death penalty
has any special deterrent value" and that death penalty "fails as a deterrent
measure". Arthur Koestler also observes in his book on "Reflections on Hanging"
that the figures obtained by him from various jurisdictions which have abolished
capital punishment showed a decline in the homicide rate following abolition.
The Report made by the Department of Economic and Social Affairs of the United
Nations also reaches the conclusion that "the information assembled confirms the
now generally held opinion that the abolition or ..suspension of death penalty
does not have the immediate effect of appreciably increasing the incidence of
crime." These various studies to which I have referred clearly establish beyond
doubt that death penalty does not have any special deterrent effect which life
sentence does not posses and that in any event there is no evidence at all to
suggest that death penalty has any such special deterrent effect. 322

     There is unfortunately no empirical study made in India to assess,
howsoever imperfectly, the deterrent effect of death penalty. But we have the
statistics of the crime of murder in the former States of Travancore and Cochin
during the period when the capital punishment was on the statute book as also
during the period when it was kept in abeyance. These figures have been taken by
me from - the Introduction of Shri Mohan Kumar Mangalam to the book entitled
"Can the State Kill its Citizen" brought out by Shri Subramaniam: Statistics of
murder cases during the period when Capi- tal Punishment was kept in abeyance.

     Year Travancore Cochin Total for Travan- core & Cochin

     1945 111 cases 22 133

     1946 135 cases 13 148

     1947 148-cases 26 174

     1948 160 cases 43 203

     1949 114 cases 26 140

     1950 125 cases 39 164

       Total 793 169 962

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

     1951 141 cases 47 188

     1952 133 cases 32 165

     1953 146 cases 54 200

     1954 114 cases 57 171

     1955 99 cases 30 129

     1956 97 cases 17 114

       Total 730 237 967

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These figures show that the incidence of the crime murder did not A increase at
all during the period of six years when the capital punishment was in abeyance.
This is in line with the experience of ether countries where death penalty has
been abolished.

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

     First, Peter Passell and John Taylor attempted to replicate Ehrlich's
findings and found that they stood scrutiny only under an unusually restrictive
set of circumstances. They found, for example that the appearance of deterrence
is produced only when

324

the regression equation is in logarathmic form and in the more conventional
linear regression frame work, the deterrent effect disappeared. They also found
that no such effect emerged when data for the years after 1962 were omitted from
the analysis and only the years 1953-61 were considered. Kenneth Avio of the
University of Victoria made an effort to replicate Ehrlich's findings from
Canadian experience but that effort also failed and the conclusion reached by
the learned jurist was that "the evidence would appear to indicate that Canadian
offenders over the period 1926-60 did not behave in a manner consistent with an
effective deterrent effect of capital punishment." William Bowers and Glenn
Pierce also made an attempt to replicate Ehrlich's results and in replicating
Ehrlich's work they confirmed the Passel-Taylor findings that Ehrlich's results
were extremely sensitive as to whether the logarithmic specification was used
and whether the data for the latter part of 1960's were included. During 1975
the Yale Law Journal published a series of Articles reviewing the evidence on
the deterrent effect of death penalty and in the course of an Article in this
series, Ehrlich defended his work by addressing himself to some of the criticism
raised against his study. Hans Zeisel, Professor Emeritus of Law and Sociology
in the University of Chicago points out in his article on The deterrent effect
of death penalty; Facts v. Faith that in this article contributed by him to the
Yale Law Journal, Ehrlich did refute some criticisms but the crucial ones were
not met. Ehrlich in this Article referred to a second study made by him, basing
it this time on a comparison by States for the years 1940 and 1950. He claimed
that this study bolstered his original thesis but conceded that his findings
were "tentative and inconclusive". In the mean time Passell made a State-by-
State comparison for the years 1950 and 1960 and as a result of his findings,
concluded that "we know of no reasonable way of interpreting the cross sections
(i.e. State-by State) data that would lend support to the deterrence
hypothesis." A particularly extensive review of Ehrlich's time series analysis
was made by a team led by Lawrence Klein, President of the American Economic
Association. The authors found serious methodological problems with Ehrlich's
analysis. They raised questions about his failure to consider the feedback
effect of crime on the economic variables in his model, although he did consider
other feedback effects in his analysis. They found some of Ehrlich's technical
manipulations to be superfluous and tending to obscure the accuracy of his
estimates. They, too, raised questions about

325

variables omitted from the analysis, and the effects of these omissions on the
findings.

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

     By this time, Ehrlich's model had been demonstrated to be peculiar enough.
Klein went on to reveal further difficulties. One was that Ehrlich's deterrence
finding disappeared after the introduction of a variable rejecting the factors
that caused other crimes to increase during the latter part of the period of
analysis. The inclusion of such a variable would seem obligatory not only to
substitute for the factors that had obviously been omitted but also to account
for interactions between the crime rate and the demographic characteristics of
the population. Klein also found Ehrlich's results to be affected by an unusual
construction of the execution rate variable, the central determinant of the
analysis. Ehrlich constructed this variable by using three other variables that
appeared elsewhere in his regression model: the estimated homicide arrest rate
the estimated homicide conviction rate, and the estimated number of homicides.
Klein showed that with this construction of the execution rate, a very small
error in the estimates of any of these three variables produced unusually strong
spurious appearances of a deterrent effect. He went on to show that the combined
effect of such slight errors in all three variables was likely to be
considerable, and that in view of all these considerations, Ehrlich's estimates
of the deterrent effect were so weak that they "could be regarded as evidence..
(of) a counter deterrent effect of capital punishment." In view of these serious
problems with Ehrlich's analysis, Klein concluded: "We see too many plausible
explanations for his finding a deterrent effect other than the theory that
capital punishment deters murder" and further observed: "Ehrlich's results
cannot be used at this time to pass judgment on the use of the death penalty."

     This is the analysis of the subsequent studies of Passell and Taylor,
Bowers and Pierce and Klein and his colleagues made by Hans

326

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

     I may also at this stage refer once again to the opinion expressed ed by
Professor Sellin. The learned Professor after a serious and thorough study of
the entire subject in the United States on behalf

327

of the American Law Institute stated his conclusion in these terms:

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

   (Emphasis supplied.)

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

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

     It is a strange irony of fate that Prime Minister Bhandarnaike who
suspended the death penalty in Sri Lanka was himself murdered by a fanatic and
in the panic that ensued death penalty was reintroduced in Sri Lanka. The
evidence on whether the threat of death penalty has a deterrent effect beyond
the threat of life sentence is therefore overwhelmingly on one side. Whatever be
the measurement yardstick adopted and howsoever sharpened may be the analytical
instruments they have not been able to discover any special deterrent effect.
Even regression analysis, the most sophisticated of these instruments after
careful application by the scholarly community, has failed to detect special
deterrent effect in death penalty which is not to be found in life imprisonment.
One answer which the protagonists of

328

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

     The majority speaking through Sarkaria, J. has observed that "in most of
the countries of the world including India, a very large segment of the
population including noteable penologists, Judges, jurists, legislators and
other enlightened people believe that death penalty for murder and certain other
capital offences does serve as a deterrent and a greater deterrent than life
imprisonment." I do not think this statement represents the correct factual
position. It is of course true that there are some penologists, judges, jurists,
legislators and other people who believe that death penalty acts as a greater
deterrent but it would not be correct to say that they form a large segment of
the population. The enlightened opinion in the world, 329

as pointed out by me, is definitely veering round in favour of A abolition of
death penalty. Moreover, it is not a rational conviction but merely an
unreasoned belief which is entertained by some people including a few
penologists, judges, jurists and legislators that death penalty has a uniquely
deterrent effect. When you ask these persons as to what is the reason why they
entertain this belief, they will not be able to give any convincing answer
beyond stating that basically every human being dreads death and therefore death
would naturally act as a greater deterrent than life imprisonment. That is the
same argument advanced by Sir James Fitz James Stephen, the draftsman of the
Indian Penal Code in support of the deterrent effect of capital punishment. That
great Judge and author said in his Essay on Capital Punishment:

   "No other punishment deters men so effectually from committing crimes as the
punishment of death. This is one of those propositions which it is difficult to
prove simply because they are in themselves more obvious than any proof can make
them. It is possible to display ingenuity in arguing against it, but that is
all. The whole experience of mankind is in the other direction. The threat of
instant death is the one to which resort has always been made when there was an
absolute necessity of producing some results.... No one goes to certain
inevitable death except by compulsion. Put the matter the other way, was there
ever yet a criminal who when sentenced to death and brought out to die would
refuse the offer of a commutation of a sentence for a severest secondary
punishment ? Surely not. Why is this ? It can only be because 'all that a man
has will be given for his life'. In any secondary punishment, however terrible,
there is hope, but death is death; its terrors - cannot be described more
forcibly."

     The Law Commission in its thirty-fifth report also relied largely on this
argument for taking the view that "capital punishment does act as a deterrent."
It set out the main points that weighed with it in arriving at this conclusion
and the first and foremost amongst them was that: "Basically every human being
dreads death", suggesting that death penalty has therefore a greater deterrent
effect than any other punishment. But this argument is not valid and a little
scrutiny will reveal that it is wholly unfounded. In the first place,

330

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

331

certainty Of detection." Professor Hart emphasized the same point, refuting the
argument of Sir James Fitz James Stephen in these words:

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

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

332

special leave, and, barring the case of Ranga and Billa, I do not think there is
a single case in which death penalty has been affirmed by this Court. There have
been numerous cases where even after special leave petitions against sentence of
death were dismissed, review petitions have been entertained and death sentence
commuted by this Court. Then there is also the clemency power of the President
under Article 72 and of the Governor under Article 161 of the Constitution and
in exercise of this power, death sentence has been commuted by the President or
the Governor, as the case may be, in a number of cases. The chances of
imposition of death sentence following upon a conviction for the offence of
murder are therefore extremely slender. This is also evident from the figures
supplied to a us by the Government of India for the years 1974 to 1978 pursuant
to the inquiry made by us. During the course of the hearing, we called upon the
Government of India to furnish us statistical information in regard to following
three matters, namely, (i) the number of cases in which and the number of
persons on whom death sentence was imposed and whose death sentence was
confirmed by various High Courts in India; (ii) the number of cases in which
death sentence was executed in the various States and the various Union
Territories; and (iii) the number of cases in which death sentence was commuted
by the President of India under Article 72 or by the Governors under Article 161
of the Constitution. The statistical information sought by us was supplied by
the Government of India and our attention was also drawn to the figures showing
the total number of offences of murder committed inter alia during the years
1974-77. These figures showed that on an average about 17,000 offences of murder
were committed in India every year during the period 1974 to 1977, and if we
calculate on the basis of this average, the total number of offences of murder
during the period of five years from 1974 to 1978 would come to about 85,000.
Now, according to the statistical information supplied by the Government of
India, out of these approximately 85,000 case of murder, there were only 288 in
which death sentence was imposed by the sessions court and confirmed by the High
Courts and out of them, in 12 cases death sentence was commuted by the President
and in 40 cases, by the Governors and death sentence was executed in only 29
cases. It will thus be seen that during the period of five years from 1974 to
1978, there was an infinitesingly small number of cases, only 29 out of an
aggregate number of approximately 85,000 cases of murder, in which death
sentence was executed. Of course, the figures supplied by the

333

Government of India did not include the figures from the States of A Bihar,
Jammu and Kashmir, West Bengal and Delhi Administration but the figures from
these three States and from the Union Territory of Delhi would not make any
appreciable difference. It is obvious therefore that even after conviction in a
trial, there is high degree of probability that death sentence may not be
imposed by the sessions court and even If death sentence is imposed by the
sessions court, it may not be confirmed by the High Court and even after
confirmation by the High Court, it may not be affirmed by this Court and lastly,
even if affirmed by this Court, it may be commuted by the President of India
under Article 72 or by the Governor under Article 161 of the Constitution in
exercise of the power of clemency. The possibility of execution pursuant to a
sentence of death is therefore almost negligible, particularly after the
enactment of section 354 sub-section (3) of the Code of Criminal Procedure 1973
and it is difficult to see how in these circumstances death penalty can ever act
as a deterrent. The knowledge that . death penalty is rarely imposed and almost
certainly, it will not be imposed takes away whatever deterrent value death
penalty might otherwise have. The expectation, bordering almost on certainty,
that death sentence is, extremely unlikely to be imposed is a factor that would
condition the behaviour of the offender and death penalty cannot in such a
situation have any deterrent effect. The risk of death penalty being remote and
improvable, it cannot operate as a greater deterrent than the threat of life
imprisonment. Justice Brennan and Justice White have also expressed the same
view in Furman v. Georgia (supra), namely, that, when infrequently and
arbitrarily imposed, death penalty is not a greater deterrent to murder than is
life imprisonment.

     The majority speaking through Sarkaria, J. has referred to a few decisions
of this Court in which, according to majority Judges, the deterrent value of
death penalty has been judicially recognised. But I do not think any reliance
can be placed on the observations in these decisions in support of the view that
death penalty has a uniquely deterrent effect. The learned Judges who made these
observations did not have any socio-legal data before them on the basis of which
they could logically come to the conclusion that death penalty serves as a
deterrent. They merely proceeded upon an impressionistic in view which is
entertained by quite a few lawyers, judges and legislators without any
scientific investigation or empiri- 334

cal research to support it. It appears to have been assumed by these learned
judges that death penalty has an additional deterrent effect which life sentence
does not possess. In fact, the learned judges were-not concerned in these
decisions to enquire and determine whether death penalty has any special
deterrent effect and therefore if they proceeded on any such assumption, it
cannot be said that by doing so they judicially recognised the deterrent value
of death penalty. It is true that in Jagmohan's case (supra) Palekar J. speaking
on behalf of the court did take the view that death penalty has a uniquely
deterrent effect but I do Dot think that beyond a mere traditional belief the
validity of which cannot be demonstrated either by logic or by reason, there is
any cogent and valid argument put forward by the learned Judge in support of the
view that death sentence has greater deterrent effect than life sentence. The
majority judges have relied on some of the observations of Krishna Iyer, J. but
it must not be forgotten that Krishna Iyer, J. has been one of the strongest
opponents of death penalty and he has pleaded with passionate conviction for
'death sentence on death sentence'. In Dalbir Singh & Ors. v. State of Punjab
(supra) he emphatically rejected the claim of deterrence in most unequivocal
terms: ".. the humanity of our Constitution historically viewed (does not)
subscribe to the hysterical assumption or facile illusion that a crime free
society will dawn if hangmen and firing squads were kept feverishly busy." It
would not be right to rely on stray or casual observations of Krishna Iyer, J.
in support of the thesis that death penalty has a uniquely deterrent effect. It
would be doing grave injustice to him and to the ideology for which he stands.
In fact, the entire basis of the judgment of Krishna Iyer, J. in Rajendra
Prasad's is that death penalty has not deterrent value and that is only where
the killer is found to be a social monster or a beast incapable of reformation
that he can be liquidated out of existence. Chinnappa Reddy, J. has also in
Bishnu Deo Shaw's case (supra) taken the view that "there is no positive
indication that the death penalty has been deterrent" or in other words, "the
efficacy of the death penalty as a deterrent is unproven."

     Then reliance has been placed by Sarkaria, J. speaking on behalf of the
majority on the observations of Stewart, J. in Furman v. Georgia (supra) where
the learned Judge took the view that death penalty serves a deterrent as well as
retributive purpose. In his view, certain criminal conduct is so atrocious that
society's interest in deterrence and retribution wholly outweighs any
considerations 335

of reform or rehabilitation of the perpetrator and that, despite the on
conclusive empirical evidence, only penalty of death will provide maximum
deterrence. It has also been pointed out by Sarkaria, J. that in Gregg v.
Georgia (supra) Stewart, J. reiterated the same view in regard to the deterrent
and retributive effect of death penalty. But the view taken by Stewart, J.
cannot be regarded as decisive of the present question as to the deterrent
effect of death penalty. It is just one view like any other and its validity has
to be tested on the touchstone of logic and reason. It cannot be accepted merely
because it is the view of an eminent judge, I find that as against the view
taken by him, there is a contrary view taken by at least two judges of the
United States Supreme Court, namely. Brennan J. and Marshall J. who were
convinced in Gregg v. Georgia (supra) that "capital punishment is not necessary
as a deterrent to crime in our society." It is natural differing judicial
observations supporting one view or the other that these should be particularly
on a sensitive issue like this, but what is necessary is to examine objectively
and critically the logic and rationale behind these observations and to
determine for ourselves which observations represent the correct view that
should find acceptance with us. The majority Judges speaking through Sarkaria,
J. have relied upon the observations of Stewart, J. as also on the observations
made by various other Judges and authors for the purpose of concluding that when
so many eminent persons have expressed the view that capital punishment is
necessary for the protection of society, how can it be said that it is arbitrary
and unreasonable and does not serve any rational penological purpose. It has
been observed by Sarkaria, J: "It is sufficient to say that the very fact that
persons of reason, learning and light are rationally and deeply divided in their
opinion on this issue, is a ground among others, for rejecting the petitioners'
argument that retention of death penalty in the impugned provision, is totally
devoid of reason and purpose. If, notwithstanding the view of the Abolitionists
to the contrary, a very large segment of people, the world over, including
sociologists legislators, jurists, judges and administrators still firmly
believe in the worth and necessity of capital punishment for the protection of
society......it is not possible to hold that the provision of death penalty as
an alternative punishment for murder is unreasonable and not in the public
interest. I find it difficult to accept this argument which proceeds upon the
hypothesis that merely because some lawyers, judges and jurists are of the
opinion that death penalty 336

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

337

if the State fails to discharge this burden which lies upon it, death penalty as
alternative punishment for murder must be held to be arbitrary and unreasonable.

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

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

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

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

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

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

So far as the first argument set out in clause (a) is concerned, I have already
shown that the circumstance that every human being dreads

338

death cannot lead to the inference that death penalty act as a deterrent. The
statement made in clause (b) is perfectly correct and I agree with they Law
Commission that death as a penalty stands on a totally different level from life
imprisonment and the difference between them is one of quality and not merely of
degree, but I fail to see how from this circumstance an inference can
necessarily follow that death penalty has a uniquely deterrent effect. Clause
(c) sets out that those who are specially qualified to express an opinion on the
subject have in their replies to the questionnaire stated their definite view
that the deterrent effect of capital punishment is achieved in a fair measure in
India. It may be that a large number of persons who sent replies to the
questionnaire issued by the Law Commission might have expressed the view that
death penalty does act as a deterrent in our country, but mere expression of
opinion in reply to the questionnaire, unsupported by reasons, cannot have any
evidenciary value. There are quite a number of people in this country who still
nurture the superstitions and irrational belief, ingrained in their minds by a
century old practice of imposition of capital punishment and fostered, though
not consciously, by the instinct for retribution, that death penalty alone can
act as an effective deterrent against the crime of murder. I have already
demonstrated how this belief entertained by lawyers, judges, legislators and
police officers is a myth and it has no basis in logic or reason. In fact, the
statistical research to which I have referred completely falsifies this belief.
Then, there are the arguments in clauses (d) and (e) but these arguments even
according to the Law Commission itself are inconclusive and it is difficult to
see how they can be relied upon to support the thesis that capital punishment
acts as a deterrent. The Law Commission states in clause (f) that statistics of
other countries are inconclusive on the subject. I do not agree. I have already
dealt with this argument and shown that the statistical studies carried out by
various jurists and criminologists clearly disclose That there is no evidence at
all to suggest that death penalty acts as a deterrent and it must therefore be
held on the basis of the available material that death penalty does not act as a
deterrent. But even if we accept the proposition that the statistical studies
are inconclusive and they cannot be regarded as proving that death penalty has
no deterrent effect, it is clear that at the same time they also do not
establish that death penalty has a uniquely deterrent effect and in this
situation, the burden of establishing that death penalty has an additional
deterrent effect which life sentence does not have and therefore serves a
penological purpose 339

being on the State, it must held that the State has failed to discharge the
burden which rests upon it and death penalty must therefore be held to be
arbitrary and unreasonable.

     There was also one other argument put forward by the Law Commission in its
35th Report and that argument was that having regard to the conditions in India
to the variety of social up-bringing of its inhabitants, to the disparity in the
level of morality and education in the country, to the vastness of its area, to
the diversity of its population and to the paramount Deed to maintain law and
order in the country at the present juncture, India cannot risk the experiment
of abolition of capital punishment. This argument does not commend itself to me
as it is based more on fear psychosis than on reason. It is difficult to see how
any of the factors referred to by the Law Commission, barring the factor
relating to the need to maintain law and order, can have any relevance to the
question of deterrent effect of capital punishment. I cannot subscribe to the
opinion that, because the social upbringing of the people varies from place to
place or from class to class or there are demographic diversities and
variations, they tend to increase the incidence of homicide and even if they do,
I fail to see how death penalty can counter act the effect of these factors. It
is true that the level of education in our country is low, because our
developmental process started only after we became politically free, but it
would be grossly unjust to say that uneducated people are more prone to crime
than the educated ones. I also cannot agree that the level of morality which
prevails amongst our people is low. I firmly hold the view that the large bulk
of the people in our country, barring only a few who occupy positions of
political, administrative or economic power, are actuated by a high sense of
moral and ethical values. In fact, if we compare the rate of homicide in India
with that in the United States, where there is greater homogeneity in population
and the level of education is fairly high, we find that India compares very
favourably with the United States. The rate of homicide for the year 1952 was
4.7 in the United States as against the rate of only 2.9 in India per 1,00,000
population and the figures for the year 1960 show that the rate of homicide in
the United States was 5.1 as against the rate of only 2.5 in India per 1,00,000
population. The comparative figures for the year 1967 also confirm that the rate
of homicide per 1,00,000 population in the United States was definitely higher
than that in India because in the United States it was 6.1

340

while in India it was only 2.6. It is therefore obvious that, despite the
existence of the factors referred to by the Law Commission, the conditions in
India, in so far as the rate of homicide is concerned, are definitely better
than in the United States and I do not see how these factors can possibly
justify an apprehension that it may be risky to abolish capital punishment.
There is in fact statistical evidence to show that the attenuation of the area
in which death penalty may be imposed and the remoteness and infrequency of
abolition of death penalty have not resulted in increase in the rate of
homicide. The figures which were placed before us on behalf of the Union clearly
show that there was no increase in the rate of homicide even though death
sentence was made awardable only in exceptional cases under section 354 sub-
section (3) of the new Code of Criminal Procedure 1973. I must therefore express
my respectful dissent from the view taken by the Law Commission that the
experiment of abolition of capital punishment, would involve a certain element
of risk to the law and order situation.

     It will thus be seen that death penalty as provided under section 302 of
the Indian Penal Code read with section 354 sub-section (3) of the Code of
Criminal Procedure, 1973 does not subserve any legitimate end of punishment,
since by killing the murderer it totally rejects the reformative purpose and it
has no additional deterrent effect which life sentence does not possess and it
is therefore not justified by the deterrence theory of punishment. Though
retribution or denunciation is regarded by some as a proper end of punishment. I
do not think, for reasons I have already discussed, that it can have any
legitimate place in an enlightened philosophy of punishment. It must therefore
be held that death penalty has no rational nexus with any legitimate penological
goal or any rational penological purpose and it is arbitrary and irrational and
hence violative of Articles 14 and 21 of the Constitution. I must now turn to
consider the attack against the constitutional validity of death penalty
provided under section 302 of the Indian Penal Code read with section 354 sub-
section (3) of the Code of Criminal Procedure, 1973 on the ground that these
sections confer an unguided and standardless discretion on the court whether to
liquidate an accused out of existence or to let him continue to live and the
vesting of such discretion in the court renders the death penalty arbitrary and
freakish. This ground of challenge is in my opinion well founded and it
furnishes one additional reason

341

why the death penalty must be struck down as violative of Articles A 14 and 21.
It is obvious on a plain reading of section 302 of the Indian Penal Code which
provides death penalty as alternative punishment for murder that it leaves it
entirely to the discretion of Court whether to impose death sentence or to award
only life imprisonment to an accused convicted of the offence of murder. This
section does not lay down any standards or principles to guide the discretion of
the Court in the matter of imposition of death penalty. The critical choice
between physical liquidation and life long incarceration is left to the
discretion of the court and no legislative light is shed as to how this deadly
discretion is to be exercised. The court is left free to navigate in an
uncharted sea without any com- pass or directional guidance. The respondents
sought to find some guidance in section 354 sub-section (3) of the Code of
Criminal Procedure 1973 but I fail to see how that section can be of any help at
all in providing guidance in the exercise of discretion. On the contrary it
makes the exercise of discretion more difficult and uncertain. Section 354 sub-
section (3) provides that in case of offence of murder, life sentence shall be
the rule and it is only in exceptional cases for special reasons that death
penalty may be awarded. But what are the special reasons for which the court may
award death penalty is a matter on which section 354 sub-section (3) is silent
nor is any guidance in that behalf provided by any other provision of law. It is
left to the Judge to grope in the dark for himself and in the exercise of his
unguided and unfettered discretion decide what reasons may be considered as
'special reasons' justifying award of death penalty and whether in a given case
any such special reasons exist which should persuade the court to depart from
the normal rule and inflict death penalty on the accused. There being no
legislative policy or principle to guide the court in exercising its discretion
in this delicate and sensitive area of life and death, the exercise of
discretion of the Court is bound to vary from judge to judge. What may appear as
special reasons to one judge may not so appear to another and the decision in a
given case whether to impose the death sentence or to let off the offender only
with life imprisonment would, to a large extent, depend upon who is the judge
called upon to make the decision. The reason for this uncertainty in the
sentencing process is two-fold. Firstly, the nature of the sentencing process is
such that it involves a highly delicate task calling for skills and talents very
much different from those ordinarily expected of lawyers. This was pointed out
clearly

342

and emphatically by Mr. Justice Frankfurter in the course of the evidence he
gave before the Royal Commission on Capital Punishment:

   "I myself think that the bench-we lawyers who be come Judges-are not very
competent, are not qualified by experience, to impose sentence where any
discretion is to be exercised. I do not think it is in the domain of the
training of lawyers to know what to do with a fellow after you find out he is a
thief. I do not think legal training has given you any special competence. I,
myself, hope that one of these days, and before long, we will divide the
functions of criminal justice. I think the lawyers are people who are competent
to ascertain whether or not a crime has been committed. The whole scheme of
common law judicial machinery-the rule of evidence, the ascertainment of what is
relevant and what is irrelevant and what is fair, the whole question of whether
you can introduce prior crimes in order to prove intent-I think lawyers are
peculiarly fitted for that task. But all the questions that follow upon
ascertainment of guilt, I- think require very different and much more
diversified talents than the lawyers and judges are normally likely to possess."
Even if considerations relevant to capital sentencing were provided by the
legislature, it would be a difficult exercise for the judges to decide whether
to impose the death penalty or to award the life sentence. But without any such
guidelines given By the legislature, the task of the judges becomes much more
arbitrary and the sentencing decision is bound to vary with each judge.
Secondly, when unguided discretion is conferred upon the Court to choose between
life and death, by providing a totally vague and indefinite criterion of
'special reasons' without laying down any principles or guidelines for
determining what should be considered To be 'special reasons', the choice is
bound to be influenced by the subjective philosophy of the judge called upon to
pass the sentence and on his value system and social philosophy will depend
whether the accused shall live or die. No doubt the judge will have to give
'special reasons' if he opts in favour of inflicting the death penalty, H-but
that does not eliminate arbitrariness and caprice, firstly because there being
no guidelines provided by the legislature, the reasons

343

which may appeal to one judge as 'special reasons' may not appeal to another,
and secondly, because reasons can always be found for a conclusion that the
judge instinctively wishes to reach and the judge can bonafide and
conscientiously find such reason to be 'special reasons'. It is now recognised
on all hands that judicial conscience is not a fixed conscience; it varies from
judge to judge depen- ding upon his attitudes and approaches, his predilections-
and prejudices, his habits of mind and thought and in short all that goes with
the expression "social philosophy". We lawyers and judges like to cling to the
myth that every decision which we make in the exercise of our judicial
discretion is guided exclusively by legal principles and we refuse to admit the
subjective element in judicial decision making. But that myth now stands
exploded and it is acknowledged by jurists that the social philosophy of the
judge plays a not inconsiderable part in moulding his judicial decision and
particularly the exercise of judicial discretion. There is nothing like complete
objectivity in the decision making process and especially so, when this process
involves making of decision in the exercise of judicial discretion. Every
judgment necessarily bears the impact of the attitude and approach of the judge
and his social value system. It would be pertinent here to quote Justice
Cardozo's analysis of the mind of a Judge in his famous lectures on "Nature of
Judicial Process": "We are reminded by William James in a telling page of his
lectures on Pragmatism that every one of us has in truth an underlying
philosophy of life, even those of us to whom the names and the notions of
philosophy are unknown or anathema. There is in each of us a stream of y
tendency, whether you choose to call it philosophy or not, which gives coherence
and direction to thought and ' t action. Judges cannot escape that current any
more than other mortals. All their lives, forces which they do not recognize and
cannot name, have been tugging at them- inherited instincts, traditional
beliefs, acquired convictions; - and the resultant is an outlook on life, a
conception of ' social needs, a sense in Jame's phrase of 'the total push and
pressure of the cosmos,' which when reasons are nicely balanced, must determine
where choice shall fall. In this mental background every problem finds its
setting. We l may try to see things as objectively as we please. None-

344

     theless, we can never see them with any eyes except our own."

It may be noted that the human mind, even at infancy, is no blank sheet of
paper. We are born with predisposition and the process of education, formal and
informal, and, our own subjective experiences create attitudes which effect us
in judging situations and coming to decisions. Jerome Frank says in his book;
"Law and the Modern Mind", in an observation with which I find myself in entire
agreement: "Without acquired 'slants' preconceptions, life could not go on.
Every habit constitutes a pre- judgment; were those pre-judgments which we call
habits absent in any person, were he obliged to treat every event as an
unprecedented crisis presenting a wholly new problem, he would go mad.
Interests, points of view, preferences, are the essence of living. Only death
yields complete dispassionateness, for such dispassionateness signifies utter
indifference.. An 'open mind' in the sense of a mind containing no pre-
conceptions whatever, would be a mind incapable of learning anything, would be
that of an utterly emotion- less human being."

It must be remembered that "a Judge does not shed the attributes of common
humanity when be assumes the ermine." The ordinary human mind is a mass of pre-
conceptions inherited and acquired, often unrecognised by their possessor. "Few
minds are as neutral as a sheet of plain glass and indeed a mind of that quality
may actually fail in judicial- efficiency, for the warmer tints of imagination
and sympathy are needed to temper the cold light of reason, if human justice is
to be done." It is, therefore, obvious that when a Judge is called upon to
exercise his discretion as to whether the accused shall be killed or shall be
permitted to live, his conclusion would depend to a large extent on his approach
and attitude, his predilections and pre-conceptions, his value system and social
philosophy and his response to the evolving norms of decency and newly
developing concepts and ideas in penological jurisprudence. One Judge may have
faith in the Upanishad doctrine that every human being is an embodiment of the
Divine and he may believe with Mahatma Gandhi that every offender can be
reclaimed

345

and transformed by love and it is immoral and unethical to kill him, while
another Judge may believe that it is necessary for social defence that the
offender should be put out of way and that no mercy should be shown to him who
did not show mercy to another. One Judge may feel that the Naxalites, though
guilty of murders, . are dedicated souls totally different from ordinary
criminals as they are motivated not by any self-interest but by a burning desire
to bring about a revolution by eliminating vested interests and should not
therefore be put out of corporeal existence while another Judge may take the
view that the Naxalities being guilty of cold premeditated murders are a menace
to the society and to innocent men and women and therefore deserve to be
liquidated. The views of Judges as to what may be regarded as 'special reasons'
are bound to differ from Judge to Judge depending upon his value system and
social philosophy with the result that whether a person shall live or die
depends very much upon the composition of the bench. which tries his case and
this renders the imposition of death penalty arbitrary and capricious.

     Now this conclusion reached by me is not based merely on theoretical or a
priori considerations. On an analysis of decisions given over a period of years
we find that in fact there is no uniform pattern of judicial behaviour in the
imposition of death penalty and the judicial practice does not disclose any
coherent guidelines for ' the award of capital punishment. The Judges have been
awarding death penalty or refusing to award it according to their own scale of
values and social philosophy and it is not possible to discern any consistent
approach to the problem in the judicial decisions. It is p apparent from a study
of the judicial decisions that some Judges are readily and regularly inclined to
sustain death sentences, other are . similarly disinclined and the remaining
waver from case to case. Even in the Supreme Court there are divergent attitudes
and opinions in regard to the imposition of capital punishment. If a case comes
before one Bench consisting of Judges who believe in the social efficacy of
capital punishment, the death sentence would in all probability be confirmed but
if the same case comes before another Bench consisting of Judges who are morally
and ethically against the death penalty, the death sentence would most likely be
commuted to life imprisonment. The former would find and I say this not in any
derogatory or disparaging sense, but as a consequence of psychological and
attitudinal factors operating on the

346

minds of the Judges constituting the Bench-'special reasons' in the case to
justify award of death penalty while the latter would reject any such reasons as
special reasons. It is also quite possible that one Bench may, having regard to
its perceptions, think that there are special reasons in the case for which
death penalty should be awarded while another Bench may bonafide and
conscientiously take a different view and hold that there are no special reasons
and that only life sentence should be imposed and it may not be possible to
assert objectively and logically as to who is right and who is wrong, because
the exercise of discretion in a case of this kind, where no broad standards or
guidelines are supplied by the legislature, is bound to be influenced by the
subjective attitude and approach of the Judges constituting the Bench, their
value system, individual tone of their mind, the colour of their experience and
the character and variety of their interests and their predispositions. This
arbitrariness in the imposition of death penalty is considerably accentuated by
the fragmented bench structure of our Courts where benches are inevitably formed
with different permutations and combinations from time to time and cases
relating to the offence of murder come up for hearing sometimes before one
Bench, sometimes before another sometimes before a third and so on. Prof.
Blackshield has in his Article on 'Capital Punishment in India' published in
Volume 21 of the Journal of the Indian Law Institute pointed out how the
practice of bench formation contributes to arbitrariness in the imposition of
death penalty. It is well-known that so far as the Supreme Court is concerned,
while the number of Judges has increased over the years, the number of Judges on
Benches which hear capital punishment cases has actually decreased. Most cases
are now heard by two judge Benches. Prof. Blackshield has abstracted 70 cases in
which the Supreme Court had to choose between life and death while sentencing an
accused for the offence of murder and analysing these 70 cases he has pointed
out that during the period 28th April 1972 to 8th March 1976 only eleven Judges
of the Supreme Court participated in 10% or more of the cases. He has listed
these eleven Judges in an ascending order of leniency based on the proportion
for each Judge of plus votes (i.e. votes for the death sentence) to total votes
and pointed out that these statistics show how the judicial response to the
question of life and death varies for judge to judge." It is significant to note
that out of 70 cases analysed by Prof. Blackshield, 37 related to the period
subsequent to the coming into force of section 354 sub-section (3) of the Code
of Criminal Procedure 1973. If a similar

347

exercise is performed with reference to cases decided by the Supreme A Court
after 8th March 1976, that being the date upto which the survey carried out by
Prof. Blackshield was limited, the analysis will x reveal the same pattern of
incoherence and arbitrariness, the decision to kill or not to kill being guided
to a large extent by the com position of the Bench. Take for example Rajendra
Prasad's case (supra) decided on 9th February 1979. In this case, the death
sentence imposed on Rajendra Prasad was commuted to life imprisonment by a
majority consisting of Krishna Iyer, J. and Desai, J.A.P. Sen, J. dissented and
was of the view that the death sentence should be confirmed. Similarly in one of
the cases before us, namely, Bachan Singh v. State of Punjab,(l) when it was
first heard by a Bench consisting of Kailasam and Sarkaria, JJ., Kailasam, J.
was definitely of the view that the majority decision in . Rajendra Prasad's
case was wrong and that is why 'he referred that case to the Constitution Bench.
So also in Dalbir Singh v. State of Punjab (supra), the majority consisting of
Krishna Iyer, J. and Desai, J. took the view that the death sentence imposed on
Dalbir Singh should be commuted to life imprisonment while A.P. Sen, J. struck
to the original view taken by him in Rajendra Prasad's case and was inclined to
confirm the death sentence. It will thus be seen that the exercise of discretion
whether to inflict death penalty or not depends to a considerable extent on the
value system and social philosophy of the Judges constituting the Bench. The
most striking example of freakishness in imposition of death penalty is provided
by a recent case which involved three accused, namely, Jeeta Singh, Kashmira
Singh and Harbans Singh. These three persons were sentenced to death by the
Allahabad High Court by a judgment and order dated 20th October 1975 for playing
an equal part in jointly murdering a family of four persons. Each of these three
persons preferred a separate petition in the Supreme Court for special leave to
appeal against the common judgment sentencing them all to death penalty. The
special leave petition of Jeeta Singh came up for hearing before a bench
consisting of Chandrachud, J. (as he then was) Krishna Iyer, J. and N.L.
Untwalia, J. and it was dismissed on 15th April 1976. Then came the special
leave petition preferred by Kashmira Singh from jail and this petition was
placed for hearing before another bench consisting of Fazal Ali, J. and myself.
We granted leave to Kashmira Singh limited to 348

the question of sentence and by an order dated 10th April 1977 we allowed his
appeal and commuted his sentence of death into one of imprisonment for life. The
result was that while Kashmira Singh's death sentence was commuted to life
imprisonment by one Bench, - the death sentence imposed on Jeeta Singh was
confirmed by another bench and he was executed on 6th October 1981, though both
had played equal part in the murder of the family and there was nothing to
distinguish the case of one from that of the other. The special leave petition
of Harbans Singh then came up for hearing and this time, it was still another
bench which heard his special leave petition. The Bench consisted of Sarkaria
and Singhal, JJ. and they rejected the special leave petition of Harbans Singh
on 1 6th October, 1978. Harbans Singh applied for review of this decision, but
the review petition was dismissed by Sarkaria, J. and A.P. Sen, J. On 9th May
1980. It appears that though the registry of this court had mentioned in its
office report that Kashmira Singh's death sentence was already commuted, that
fact was not brought to the notice of the court specifically when the special
leave petition of Harbans Singh and his review petition were dismissed. Now
since his special leave petition as also his review petition were dismissed by
this Court, Harbans Singh would have been executed on 6th October 1981 along
with Jeeta Singh, but fortunately for him he filed a writ petition in this Court
and on that writ petition, the court passed an order staying the execution of
his death sentence. When this writ petition came up for hearing before a still
another bench consisting of Chandrachud, C.J., D.A. Desai and AN. Sen. JJ., it
was pointed out to the court that the death sentence imposed on Kashmira Singh
had been commuted by a bench consisting of Fazal Ali, J. and myself and when
this fact was pointed out, the Bench directed that the case be sent back to the
President for reconsideration of the clemency petition filed by Harbans Singh.
This is a classic case which illustrates the judicial vagaries in the imposition
Of death penalty and demonstrates vividly, in all its cruel and stark reality,
how the infliction of death penalty is influenced by the composition of the
bench, even in cases governed by section 354 sub-section (3) of the Code of
Criminal Procedure 1973. The question may well be asked by the accused: Am I to
live or die depending upon the way in which the Benches are constituted from
time to time ? Is that not clearly violative of the fundamental guarantees
enshrined in Articles 14 and 21 ?

349

     If we study the judicial decisions given by the courts over a number of
years, we find Judges resorting to a wide variety of factors in justification of
confirmation or commutation of death sentence and these factors when analysed
fail to reveal any coherent pattern. This is the inevitable consequence of the
failure of the legislature to supply broad standards or guidelines which would
structure and channelise the discretion of the court in the matter of imposition
of death penalty. Of course, I may make it clear that when I say this I do not
wish to suggest that if broad standards or guidelines are supplied by the
legislature, they would necessarily cure death penalty of the vice of
arbitrariness or freakishness. Mr. Justice Harlan pointed out in Mc Gautha v.
California(l) the difficulty of formulating standards or guidelines for
channelising or regulating the discretion of the court in these words ": "Those
who have come to grips with the hard task of actually attempting to draft means
of channeling capital sentencing discretion have confirmed the lesson taught by
history...To identify before the fact those characteristics of criminal
homicides and their perpetrators which call for the death penalty, and to
express these characteristics in language which can be fairly understood and
applied by the sentencing authority, appear to be tasks which are beyond present
human ability."

But whether adequate standards or guidelines can be formulated or not which
would cure the aspects of arbitrariness and capriciousness, the fact remains
that no such standards or guidelines are provided by the legislature in the
present case, with the result that the court has unguided and untrammelled
discretion in choosing between death and life imprisonment as penalty for the
crime of murder and this has led to considerable arbitrariness and uncertainty.
This is evident from a study of the decided cases which clearly shows that the
reasons for confirmation or commutation of death sentence relied upon by the
court in different cases defy coherent analysis. Dr. Raizada has, in his
monumental doctoral study entitled "Trends in sentencing; a study of the
important penal statutes and judicial pronouncements of the High Courts and the
Supreme Court" identified a large number of decisions of this Court where
inconsis-

350

tent awards of punishment have been made and the judges have frequently
articulated their inability to prescribe or follow consistently any standards or
guidelines. He has classified cases upto 1976 in terms of the reasons given by
the court for awarding or refusing to award death sentence. The analysis made by
him is quite rewarding and illuminating.

     (i) one of the reasons given by the courts in a number of cases for
imposing death penalty is that the murder is "brutal", "cold blooded",
"deliberate", "unprovoked", "fatal", "gruesome", "wicked", "callous", "heinous"
or "violent". But the use of these labels for describing the nature of the
murder is indicative only of the degree of the court's aversion for the nature
or the manner of commission of the crime and it is possible that different
judges may react differently to these situations and moreover, some judges may
not regard this factor as having any relevance to the imposition of death
penalty and may therefore decline to accord to it the status of "special
reasons". In fact, there are numerous cases, where despite the murder being one
falling within these categories, the court has refused to award death sentence.
For example, Janardharan whose appeal was decided along with the appeal of
Rajendra Prasad had killed his innocent wife and children in the secrecy of
night and the murder was deliberate and cold blooded, attended as it was with
considerable brutality, and yet the majority consisting of Krishna Iyer, J. and
D.A. Desai, J. commuted his death sentence to life imprisonment. So also Dube
had committed triple murder and still his death sentence was commuted to life
imprisonment by the same two learned Judges, namely, Krishna Iyer, J. and D.A.
Desai, J. It is therefore clear that the epithets mentioned above do not
indicate any clearcut well defined categories but are merely expressive of the
intensity of judicial reaction to the murder, which may not be uniform in all
Judges and even if the murder falls within one of these categories, that factor
has been regarded by some judges as relevant and by others, as irrelevant and it
has not been uniformly applied as a salient factor in determining whether or not
death penalty should be imposed.

351

     (ii) There have been cases where death sentence has been A . . awarded on
the basis of constructive or joint liability arising under sections 34 and 149.
Vide: Babu v. State of U.P.,(1) Mukhtiar Singh v. State of Punjab,(2) Masalt v.
State of U.P.,(3) Gurcharan Singh v. State - of Punjab.(4) But, there are
equally a large number of cases whether death sentence has not been awarded
because the criminal liability of the accused was only . under section 34 or
Section 149. There are no establi- shed criteria for awarding or refusing to
award death sentence to an accused who himself did not give the fatal blow but
was involved in the commission of - murder along with other assailants under
section 34 or section 149.

     (iii)The position as regards mitigating factors also shows the same
incoherence. One mitigating factor which -, has often been relied upon for the
purpose of com- muting the death sentence to life imprisonment is the youth of
the offender. But this too has been quite arbitrarily applied by the Supreme
Court. There are . cases such as State of U.P. v. Suman Das,(5) Raghubir Singh
v. Sate of Haryana(6) and Gurudas Singh v. State of Rajasthan(7) where the
Supreme Court took into account the young age of the appellant and refused to
award death sentence to him. Equally there are - cases such as Bhagwan Swarup v.
State of U.P.(') and Raghomani v. State of U.P.(9) where the Supreme Court took
the view that youth is no ground for extenuation of sentence. Moreover there is
also divergence of opinion as to what should be the age at which an offender may
be regarded as a young man deserving i of commutation. The result is that as
pointed out

352

     by Dr. Raizada, in some situations young offenders who have committed
multiple murders get reduction in life sentence whereas in others, "where
neither the loss of as many human lives nor of higher valued properly" is
involved, the accused are awarded death sentence. (iv) one other mitigating
factor which is often taken into account is delay in final sentencing. This
factor of delay after sentence received great emphasis in Ediga Annamma v. State
of Andhra Pradesh,(1) Chawla v. State of Haryana,(2) Raghubir Singh v. State of
Haryana (supra) Bhur Singh v. State of Punjab,(3) State of Punjab v Hari
Singh(4) and Gurudas Singh v. State of Rajasthan(5) and in these cases delay was
taken into account for the purpose of awarding the lesser punishment of life
imprisonment. In fact, in Raghubir Singh v. State of Haryana (supra) the fact
that for 20 months the spectre of death penalty must have been tormenting his
soul was held sufficient to entitle the accused to reduction in sentence. But
equally there are a large number of cases where death sentences have been
confirmed, even when two or more years were taken in finally disposing of the
appeal; Vide: Rishdeo v. State of U.P.,(6) Bharmal Mapa v. State of Bombay(7)
and other cases given by Dr. Raizada in foot-note 186 to chapter III. These
decided cases show that there is no way of predicting. the exact period of
prolonged proceeding which may favour an accused. Whether any im- portance
should be given to the factor of delay and if so to what extent are matters
entirely within the dis- cretion of the court and it is not possible to assert
with any definitiveness that a particular period of delay after sentencing will
earn for the accused immunity

353

   from death penalty. It follows as a necessary corrolary from these vagaries
in sentencing arising from the factor of delay, that the imposition of capital
punishment becomes more or less a kind of cruel judicial lottery. If the case of
the accused is handled expeditiously by the prosecution, defence lawyer,
sessions court, High Court and the Supreme Court, then this mitigating factor of
delay is not available to him for reduction to life sentence. If, on the other
hand, there has been lack of despatch, engineered or natural, then the accused
may escape the gallows, subject of course to the judicial vagaries arising from
other causes. In other words, the more efficient the proceeding, the more
certain the death sentence and vice-versa.

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

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

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

354

Anamma's case, where this Court had to choose between life and death under
section 302 of the Indian Renal Code. The cases sub sequent to the decision in
Ediga Anamma's case have been chosen for study and analysis presumbly because
that was the decision in which the court for the first time set down some
working formula whereby a synthesis could be reached between death sentence and
life imprisonment and Krishna Iyer, J. speaking on behalf of the court,
formulated various grounds which in his opinion, might warrant death sentence as
an exceptional measure. But, despite this attempt made in Ediga Anamma's case to
evolve some broad standards or guidelines for imposition of death penalty, the
subsequent decisions, as pointed out by Professor Blackshield, display the same
pattern of confusion, contradictions and aberrations as the decisions before
that case. The learned author has taken 45 reported decisions given after Ediga
Anamma's case and shown that it is not possible to discern any coherent pattern
in these decisions and they reveal con tradictions and inconsistencies in the
matter of imposition of death penalty. This is how the learned author has summed
up his conclusion after an examination of these judicial decisions:

   "But where life and death are at stake, inconsistencies which are
understandable may not be acceptable. The hard evidence of the accompanying "kit
of cases" compels the conclusion that, at least in contemporary India, Mr.
Justice Douglas' argument in Furman v. Georgia is correct: that arbitrariness
and uneven incidence are inherent and inevitable in a system of capital
punishment and that therefore-in Indian constitutional terms, and in spite of
Jagmohan Singh- the retention of such a system necessarily violates Article 14's
guarantee of "equality before the law".

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

     I may point out that Krishna Iyer, J. has also come to the the same
conclusion on the basis of his long experience of the sentencing process. He has
analysed the different factors which have prevailed with the Judges from time to
time in awarding or refusing

355

to award death penalty and shown how some factors have weighed A with one Judge,
some with another, some with a third and so on, resulting in chaotic
arbitrariness in the imposition of death penalty. I can do no better than quote
his own words in Rajendra Prasad's case (supra): "Law must be honest to itself.
Is it not true that some judges count the number of fatal wounds, some the
nature of the weapon used, others count the corpses or the degree of horror and
yet others look into the age or sex of the offendar and even the lapse of time
between the trial Court's award of death sentence and the final disposal. Of the
appeal ? With some judges, motives, provocations, primary or constructive guilt,
mental disturbance and old feuds, the savagery of the murderous moment or the
plan which has preceded the killing; the social milieu, the sublimated class
complex and other odd factors enter the sentencing calculas. Stranger still, a
good sentence of death by the trial Court is sometimes upset by the Supreme
Court - I; because of law's delays. Courts have been directed execution of
murderers who are mental cases, who do not fall within the McNaghten rules,
because of the insane fury - of the slaughter. A big margin of subjectivism, a
preference for old English precedents, theories of modern penology, behavioral
emphasis or social antecedents, judicial hubris or human rights perspectives,
criminological literacy -. or fanatical reverence for outworn social
philosophers burried in the debris of time except as part of history-this h
plurality of forces plays a part in swinging the pendulum of sentencing justice
erratically." This passage from the judgment of the learned Judge exposes, in
language remarkable for its succinctness as well as eloquence, the vagarious
nature of the imposition of death penalty and highlights a few of the causes
responsible for its erratic operation. I find myself totally in agreement with
these observations of the learned - Judge. But when it was contended that
sentencing discretion is inherent in our legal system, and, in fact, it is
desirable, because no two cases or criminals are identical and if no discretion
is left to the

356

court and sentencing is to be done according to a rigid predetermined formula
leaving no room for judicial discretion, the sentencing process would cease to
be judicial and would de-generate into a bed of procrustean cruelty. The
argument was that having regard to the nature of the sentencing process, it is
impossible to lay down any standards or guidelines which will provide for the
endless and often unforeseeable variations in fact situations and sentencing
discretion his necessarily to be left to the court and the vesting of such
discretion in the court, even if no standards or guidelines are provided by the
legislature for structuring or challenging such discretion, cannot be regarded
as arbitrary or unreasonable. This argument, plausible though it may seem, is in
my opinion not well a founded and must be rejected. It is true that criminal
cases do not fall into set behaviouristic patterns and it is almost impossible
to find two cases which are exactly identical. There are, as pointed out by
Sarkaria, J. in the majority judgment, "countless permutations and combinations
which are beyond the anticipatory capacity of the human calculus". Each case
presents its own distinctive features, its peculiar combinations of events and
its unique configuration of facts. That is why, in the interest of
individualised justice, it is necessary to vest sentencing discretion in the
court so that appropriate sentence may be imposed by the court in the exercise
of its judicial discretion, having regard to the peculiar facts and
circumstances of a given case, or else the. sentencing process would cease to be
just and rational and justice would be sacrificed at the altar of blind
uniformity. But at the same time, the sentencing discretion conferred upon the
court cannot be altogether uncontrolled or unfettered. The strategem which is
therefore followed by the legislatures while creating and defining offences is
to prescribe the maximum punishment and in some cases, even the minimum and
leave it to the discretion of the court to decide upon the actual term of
imprisonment. This cannot be regarded as arbitrary or unreasonable since the
discretion that is left to the court is to choose an appropriate term of
punishment between the limits laid down by the legislature, having regard to the
distinctive features and the peculiar facts and circumstances of the case. The
conferment of such sentencing discretion is plainly and indubitably essential
for rendering individualised justice. But where the discretion granted to the
court is to choose between life and death without any standards or guidelines
provided by the legislature, the death penalty does become arbitrary and
unreasonable. The death penalty is

357

qualitatively different from a sentence of imprisonment. Whether Ia sentence of
imprisonment is for two years or five years or for life, it is qualitatively the
same, namely, a sentence of imprisonment, but the death penalty is totally
different. It is irreversible; it is beyond recall or reparation; it
extinguishes life. It is the choice between - life and death which the court is
required to make and this is left to its sole discretion unaided and unguided by
any legislative yardstick to determine the choice. The only yardstick which may
be said to have been provided by the legislature is that life sentence shall be
the rule and it is only in exceptional cases for special reasons that death
penalty may be awarded. but it is nowhere indicated by legislature as to what
should be regarded as f 'special reasons' justifying imposition of death
penalty. The awesome and fearful discretion whether to kill a man or to let him
live is vested in the court and the court is called upon to exercise . this
discretion guided only by its own perception of what may be regarded as 'special
reasons' without any light shed by the legislature. It is difficult to
appreciate how a law which confers such unguided discretion on the court without
any standards or guidelines on so vital an issue as the choice between life and
death can be regarded as constitutionally valid. If I may quote the words of
Harlan, J.:

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

There must be standards or principles to guide the court in making the choice
between life and death and it cannot be left to the court to decide upon the
choice on an ad hoc notion of what it conceives to be "special reasons' in a
particular case. That is exactly what we mean when we say that the government
should be of laws and not y of men and it makes no difference in the application
of this princi- ple, whether 'men' belong to the administration or to the
judiciary. It is a basic requirement of the equality clause contained in Article
14 that the exercise of discretion must always be guided by standards or norms
so that it does not degenerate into arbitrariness and operate unequally on
persons similarly situate. Where unguided and unfettered discretion is conferred
on any authority, whether it be the executive or the judiciary, it can be
exercised arbitrarily or

358

capriciously by such authority, because there would be no standards k or
principles provided by the legislature with reference to which the exercise of
the discretion can be tested. Every form of arbitrariness, whether it be
executive waywardness or judicial adhocism is anathema in our constitutional
scheme. There can be no equal protection without equal principles in exercise of
discretion. Therefore. the equality clause of the Constitution obligate that
whenever death sentence is imposed it must be a principled sentence, a sentence
based on some standard or principle and not arbitrary or indignant capital
punishment It has been said that 'a Judge untethered by a text is a dangerous
instrument, and I may well add that Judge power, uncanalised by clear
principles, may be equally dangerous when the consequence of the exercise of
discretion may result in the hanging of a human being It is obvious that if
judicial discretion is not guided by any standard or norms, it would degenerate
into judicial caprice, which, as is evident from the foregoing discussion, has
in fact happened and in such a situation, unregulated and un-principled
sentencing discretion in a highly sensitive area involving a question of life
and death would clearly be arbitrary and hence violative of the equal protection
clause contained in Article 14. It would also militate against Article 21 as
interpreted in Maneka Gandhi's case (supra) because no procedure for depriving a
person of his life can be regarded as reasonable, fair and just, if it vests
uncontrolled and unregulated discretion in the court whether to award death
sentence or to inflict only the punishment of life im- prisonment. The need for
well recognised principles to govern the 'deadly' discretion is so interlaced
with fair procedure that unregulated power not structured or guided by any
standards or principles would fall foul of Article 21. The respondents however
contendent that the absence of any standards or guidelines in the legislation
did not affect the constitutional validity of the death penalty, since the
sentencing discretion being vested in the court, standards or principles for
regulating the exercise of such discretion could always be evolved by the court
and the court could by a judicial fiat lay down standards or norms which would
guide the Judge in exercising his discretion to award the death penalty. Now it
is true that there are cases where the court lays down principles and standards
for guidance in the exercise of the discretion conferred upon it by a statute,
but that is done by the court only in those cases where

359

the principles or standards are gatherable from the provisions of the statute
Where a statute confers discretion upon a court, the statute may lay down the
broad standards or principles which should guide the court in the exercise of
such discretion or such standards or principles may be discovered from the
object and purpose of the statute, its underlying policy and the scheme of its
provisions and some times, even from the surrounding circumstances. When the
court lays down standards or principles which should guide it in the exercise of
its discretion, the court does not evolve any new standards or principles of its
own but merely discovers them from the statute. The standards or principles laid
down by the court in such a case are not standards or principles created or
evolved by l' the court but they are standards or principles enunciated by the
Iegislature in the statute and are merely discovered by the court as a matter of
statutory interpretation. It is not legitimate for the court to create or evolve
any standards or principles which are not found in the statute, because
enunciation of such standards or principles is a legislative function which
belongs to the legislative and not to the judicial department. Moreover, it is
difficult to see how any standards or principles which would adequately guide
the - exercise of discretion in the matter of imposition of death penalty can be
evolved by the court. Sarkaria, J. himself has lamented the impossibility of
formulating standards or guidelines in this highly ' sensitive area and pointed
out in the majority judgment:

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

360

dents that the court may evolve its own standards or principles for guiding the
exercise of its discretion. This is not a function which can be satisfactorily
and adequately performed by the court more particularly when the judicial
perception of what may be regarded as proper and relevant standards or
guidelines is bound to vary from judge having regards to his attitude and
approach, his predilections and prejudices and his scale of values and social
philosophy. I am fortified in this view by the decision of the Supreme Court of
the United States in Furman v. Georgia (supra). The question which was brought
before the court for consideration in that Case was whether the imposition and
execution of death penalty constituted "cruel and unusual punishment" within the
meaning of the Eighth Amendment as applied to the States by the Fourteenth. The
court, by a majority of five against four, held that the death penalty as then
administered in the United States was unconstitutional, because it was being
used in an arbitrary manner and such arbitrariness in capital punishment was a
violation of the Eighth Amendment prohibition against "cruel and unusual
punishment" which was made applicable to the States by the Fourteenth Amendment.
Brennan J. and Marshall, J. took the view that the death - penalty was per se
unconstitutional as violative of the prohibition of the Eighth Amendment.
Brennan, J. held that the death penalty constituted cruel and unusual punishment
as it did not comport with human dignity and it was a denial of human dignity
for a State arbitrarily to subject a person to an unusually severe punishment
which society indicated that it did not regard as acceptable and which could not
be shown to serve any penal purpose more effectively than a significantly less
drastic punishment. Marshall, J. stated that the death penalty violated the
Eighth Amendment because it was an excessive and unnecessary punishment and also
because it was morally unacceptable to the people of the United States. The
other three learned Judges namely, Douglas, J. Stewart, J. and White, J. did not
subscribe to the view that the death penalty was per se unconstitutional in all
circumstances but rested their judgment on the limited ground that the death
penalty as applied in the United States was unconstitutional. Douglas, J. argued
that "we deal with a system of law and of justice that leaves to the
uncontrolled discretion of judges or juries the determination whether defendants
committing these crimes should die or be imprisoned. Under these laws no
standards govern the selection of the penalty. People live or die dependent on
the whim of one man or of twelve," 361

Stewart, J. also voiced his concern about the unguided and unregulated
discretion in the sentencing process and observed: "...the Eighth and Fourteenth
Amendments cannot tolerate the infliction of a sentence of death under legal
systems that permit this unique penalty to be so wantonly and so freakishly
imposed." The remaining four Judges, namely, Burger, C.J. Blackmun, J. Powell,
J. and Rehnquist, J. took the opposite view and upheld the constitutional
validity of the death penalty in its entirety. It will thus be seen that the
view taken by the majority decision in this case was that a law which gives
uncontrolled and unguided discretion to the Judge (or the jury) to choose
arbitrarily between death sentence and life imprisonment for a capital offence
violates the Eighth Amendment which inhibits cruel and unusual punishment. Now
Sarkaria, J. speaking on behalf of the majority, has brushed aside this decision
as inapplicable in India on the ground that we "do not have in our Constitution
any provision like the Eighth Amendment nor are we at liberty to apply the test
of reasonableness with the freedom with which the Judges of the Supreme Court of
America are accustomed to apply the 'due process' clause." I am unable to agree
with this reasoning put forward in the majority judgment. I have already pointed
out that though there is no explicit provision in our Constitution prohibiting
cruel and unusual punishment, this Court has in Francis Mullin's case (supra)
held that immunity against torture or cruel and unusual punishment or treatment
is implicit in Article 21 and therefore, if any punishment is cruel and unusual,
it would be violative of basic human dignity which is guaranteed under Article
21. Moreover, in Maneka Gandhi's case (supra) this court has by a process of
judicial interpretation brought in the procedural due process clause of the
American Constitution by reading in Article 21 the requirement that the
procedure by which a person may be deprived of his life or personal liberty must
be reasonable, fair and just. Douglas, J. has also pointed out in Furman's case
(supra) that "there is increasing recognition of the fact that the basic theme
of equal protection is implicit in 'cruel and unusual' punishment. A penalty
....should be considered 'unusually' imposed. if it is administered arbitrarily
or discriminatorily" and thus brought in the equal protection clause for
invalidating the death penalty. It is also significant to note that despite the
absence of provisions like the American Due Process Clause and the Eighth
Amendment, this Court speaking through Desai, J. said in

362

Sunil Batra v. Delhi Administration.(1)

   "Treatment of a human being which offends human dignity, imposes avoidable
torture and reduces the man to the level of a beast would certainly be arbitrary
and can be questioned under Article 14.. ." Krishna Iyer, J. was more emphatic
and he observed in the same case.

   "True, our Constitution has no 'due process' clause or the VIII Amendment;
but, in this branch of law, after Cooper.. and Maneka Gandhi........... the
consequence is the same. For what is punitively outrageous, scandalizing unusual
or cruel or rehabilitatively counter productive is unarguably unreasonable and
arbitrary and is shot down by Article 14 and 19 "

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

     It may be pointed out that subsequent to the decision in Furman's case
(supra) and as a reaction to it the legislatures of several States in the United
States passed statutes limiting or controlling the exercise of discretion by
means of explicit standards to be followed in the sentencing process. These
'guided discretion' statutes provided standards typically