Bachan Singh vs State Of Punjab on 9 May, 1980
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Supreme Court of India
Equivalent citations: (1982) 3 SCC 24, 1983 1 SCR 145 a
Bench: Y Chandrachud, N Untwalia, P Bhagwati, R Sarkaria, A Gupta
Bachan Singh vs State Of Punjab on 9/5/1980
JUDGMENT
R.S. Sarkaria, J.
1. 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 CrPC, 1973.
2. 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.
3. 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 CrPC 1973.
4. Shri H.K. Puri, appearing as Amicus Curiae on behalf of the appellant,
Bachan Singh, in Criminal Appeal No. 273 of 1979, contended that in view of the
ratio of Rajendra Prasad v. State of U.P. 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 CrPC 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.
5. 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 , 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 Jagmohai's case.
(ii) In Jagmohan's case, the Constitution Bench held :
The impossibility of laying down standards (in the matter of sentencing) is
at the very core of criminal law as administered in India which invests the
judges with a very wide discretion in the matter of fixing the degree of
punishment and that this discretion in the matter of sentence 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 Rajendra Prasad, the majority decision characterised the above
observations in Jagmohan as: "incidental observations without concentration on
the sentencing criteria", and said that they are not the ratio of the decision,
adding. "Judgments are not Bible for every line to be venerated."
(iii) In Rajendra Prasad, the plurality observed :
It is constitutionally permissible to swing a criminal out of corporeal
existence only if the security of State and society, public order and the
interests of the general public compel that course as provided in Article 19(2)
to (6).
This view again, according to Kailasam, J., is inconsistent with the law
laid down by the Constitution Bench in Jagmohan, wherein it was held that
deprivation of life is constitutionally permissible if that is done according to
"procedure established by law".
(iv) In Rajendra Prasad, the majority has further opined :
The only correct approach is to read into Section 302. I.P.C. and Section
354(3) Cr. P.C., the human rights and humane trends in the Constitution. So
examined, the rights to life and the fundamental freedoms is deprived when he is
hanged to death, his dignity is defiled when his neck is noosed and strangled.
Against the above, Kailasam, J. commented : 'The only change after the
Constitution Bench delivered its judgment is the introduction of Section 354(3)
which requires special reasons to be given if the Court is to award the death
sentence. If without the restriction of stating sufficient reasons death
sentence could be constitutionally awarded under the I.P.C. and Cr.P.C. as it
stood before the amendment, it is difficult to perceive how by requiring special
reasons to be given the amended section would be unconstitutional unless the
"sentencing sector is made most restrictive and least vagarious".
(v) In Rajendra Prasad, the majority has held that :
Such extraordinary grounds alone constitutionally qualify as special
reasons as leave no option to the Court but to execute the offender if State
and. society are to survive. One stroke of murder hardly qualifies for this
drastic 'requirement, however, gruesome the killing or pathetic the situation,
unless the inherent testimony coming from that act is irresistible that the
murderous appetite of the convict is too chronic and deadly that ordered life in
a given locality or society or in prison itself would be gone if this man were
now or later to be at large. If he is an irredeemable, like a bloodthirsty
tiger, he has to quit his terrestrial tenancy.
According to Kailasam, J., what is extracted above, runs directly counter
to and cannot be reconciled with the following observations in Jagmohan's case :
But some (murders) at least are diabolical in conception and cruel in
execution. In some others where the victim is a person of high standing in the
country, society is liable to be recked to its very foundation. Such murders
cannot be simply wished away by finding alibis in the social maladjustment of
the murderer. Prevalence of such crimes speaks, in the opinion of many, for the
inevitability of death penalty not only by way of deterrence but as a token of
emphatic disapproval by the society... A very responsible body (Law Commission)
has come to the conclusion after considering all the relevant factOrs.. On the
conclusions thus offered to us, it will be difficult to hold that capital
punishment as such is unreasonable or not required in the public interest.
(vi) Kailasam, J. was further of the opinion that it is equally beyond the
functions of a' Court to evolve "working rules for imposition of death sentence
bearing the markings of enlightened flexibility and social sensibility" or to
make law "by cross-fertilisation from sociology, history, cultural anthropology
and current national perils and developmental goals and, above all,
constitutional currents". This function, in his view, belongs only to
Parliament. The Court must administer the law as it stands.
(vii) The learned Judge has further expressed that the view taken by V.R.
Krishna Iyer, J. in Rajendra Prasad that " 'special reasons' necessary for
imposing death penalty must relate not to the crime as such, but to the
criminal" is not warranted by the law as it stands today.
6. 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 CrPC, 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.
7. 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 CrPC, 1974. That is how, the matter has now
come up before this larger Bench of five Judges.
8. 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 CrPC, 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 CrPC, 1973,
death sentence has ceased to be the normal penalty for murder. Secondly,. it is
argued, the seven-Judge decision of this Court in Maneka Gandhi v. Union of
India 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'.
9. 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.
10. 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.
11. 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.
12. We have heard the arguments of Shri R.K. Garg, appearing for the writ-
petitioners in Writ Petition No. 564/79 for more than three weeks and also those
of Dr. L.M. Singhvi, Dr. Chitaley and S/Shri Mukhoty, Dave and R.K. Jain,
appearing for interveners or for the other writ-petitioners.
13. 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.
14. 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 CrPC, 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.
15. We will first take up Question No. (I) relating to the constitutional
validity of Section 302, Penal Code.
Question No. (I) :
16. 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.
17. The Indian Penal Code was- drafted by the First Indian Law Commission
presided over by Mr. Macaulay. The draft underwent further revision at the hands
of well-known jurists, like Sir Barnes Peacock, and was completed in 1850. The
Indian Penal Code was passed by the then Legislature on October 6, 1860 and was
enacted as Act No XLV of 1860.
18. 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. (Section 121)
(2) Abetting mutiny actually committed. (Section 132)
(3) Giving or fabricating false evidence upon which an innocent person
suffers death. (Section 194)
(4) Murder which may be punished with death or life imprisonment. (Section
302)
(5) Abetment of suicide of a minor or insane, or intoxicated person.
(Section 305)
(6) Dacoity accompanied with murder. (Section 396)
(7) Attempt to murder by a person under sentence of imprisonment for life
if hurt is caused. (Section 307)
19. 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
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.
20. 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).
21. Article 19, as in force today, reads as under :
19(1). All citizens shall have the right-
(a) to freedom of speech and expression ;
(b) to assemble peaceably and without arms;
(c) to form associations or unions ;
(d) to move freely throughout the territory of India ;
(e) to reside and settle in any part of the territory of India;
(f)...;
(g) to practice any profession, or to carry on any occupation, trade or
business.
(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as such
law imposes reasonable restrictions on the exercise of the right conferred by
the said sub-clause in the interests of the sovereignty and integrity of India,
the security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or
incitement to an offence.
(3) Nothing in Sub-clause (b) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from making
any law imposing, in the interests of the sovereignty and integrity of India or
public order, reasonable restrictions on the exercise of the right conferred by
the said sub-clause.
(4) Nothing in Sub-clause (c) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from making
any law imposing, in the interests of the sovereignty and integrity of India or
public order or morality, reasonable restrictions on the exercise of the right
conferred by the said sub-clause.
(5) Nothing in Sub-clauses (d) and (e) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevents the State
from making any law imposing, reasonable restrictions on the exercise of any of
the rights conferred by the said sub-clauses either in the interests of the
general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in Sub-clause (g) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevents the State from making
any law imposing, in the interests of the general public, reasonable
restrictions on the exercise of the right conferred 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 carrying 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.
22. 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.
23. The power, if properly exercised, is itself a safeguard of the freedoms
guaranteed in Clause (1). The conferment of this power is founded on the
fundamental truth that uncontrolled liberty entirely freed from restraint,
degenerates into a licence, leading to anarchy and chaos; that libertine pursuit
of liberty, absolutely free, and free for all, may mean liberticide for all.
"Liberty has, therefore," as Justice Patanjali Sastri put it, "to be limited in
order to be effectively possessed."
24. 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).
25. 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.
26. 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. [1957] S.C.R. 874 at p. 920 In that
case the constitutional validity of certain provisions of the Bombay Lotteries
and Prize Competition Control Act, 1952, as amended by Bombay Act No. XXX of
1952, was challenged on the ground, inter alia, that it infringes the
fundamental rights of the promoters of such competitions under Article 19(1)(g),
to carry on their trade or business and that the restrictions imposed by the
said Act cannot possibly be supported as reasonable restrictions in the interest
of the general public permissible under Article 19(b). It was contended that the
words "trade" or "business" or "commerce" in Sub-clause (g) of Article 19(a)
should be read in their widest amplitude as any activity which is undertaken or
carried on with a view to earning profit since there is nothing in Article
19(1)(g) which may qualify or cut down the meaning of the critical words ; that
there is no justification for excluding from the meaning of those words
activities which may be looked upon with disfavour by the State or the Court as
injurious to public morality or public interest. Speaking for the Constitution
Bench, S.R. Das, C.J. repelled this contention, in these terms :
On this argument it will follow that criminal activities undertaken and
carried on with a view to earning profit will be protected as fundamental rights
until they are restricted by law. Thus there will be a guaranteed right to carry
on a business of hiring out goondas to commit assault or even murder, or house-
breaking, or selling obscene pictures, of trafficking in women and so on until
the law curbs or stops such activities. This appears to us to be completely
unrealistic and incongruous. We have no doubt that there are certain activities
which can under no circumstance be regarded as trade or business or commerce
although the usual forms and instruments are employed therein. To exclude those
activities from the meaning of those words is not to cut down their meaning at
all but to say only that they are not within the true meaning of those words.
This approach to the problem still holds the field. The observations in
Chamarbaugwala, extracted above, were recently quoted with approval by V.R.
Krishna Iyer, J., while delivering the judgment of the Bench in Fatehchand
Himmatlal & Ors. v. Suite of Maharashtra .
27. In A.K. Gopalan v. The State of Madras [1960] 1 SCR 88, 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.
28. 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.
29. Kania, C J. rejected this argument, inter alia, on these grounds :
(i) Argument would have been equally applicable to a case of punitive
detention, and its acceptance would lead to absurd results. "In spite of the
saving Clauses (2) to (6), permitting abridgement of the rights connected with
each other, punitive detention under several sections of the Penal Code, e.g.
for theft, cheating, forgery and even ordinary assault, will be illegal (because
the reasonable restrictions in the interest of "public order" mentioned in
Clauses (2) to (4) of the article would not cover these offences and many other
crimes under the Penal Code which injure specific individuals and do not affect
the community or the public at large). Unless such conclusion necessarily
follows from the article, it is obvious that such construction should be
avoided. In my opinion, such result is clearly not the outcome of the
Constitution."
(The underlined words within brackets supplied.) (At page 100 of the
Report)
(ii) Judged by the test of direct and indirect effect on the rights
referred to in Article 19(1), the Penal Code is not a law imposing restrictions
on these rights. The test is that "the legislation to be examined must be
directly in respect of one of the rights mentioned in the sub-clauses. If there
is a legislation directly attempting to control a citizen's freedom of speech or
expression or his right to assemble peaceably and without arms, etc., the
question whether that legislation is saved by the relevant saving clause of
Article 19 will arise. If, however, the legislation is not directly in respect
of any of these subjects, but as a result of the operation of other legislation,
for instance, for punitive or preventive detention, his right under any of these
sub-clauses is abridged, the question of the application of Article 19 does not
arise. The true approach is only to consider the directness of the legislation
and not what will be the result of the detention otherwise valid, on the mode of
the detenu's life." (Pages 100-101).
(iii) "The contents and subject-matter of Articles 19 and 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).
30. 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).
31. "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).
32. "(Personal liberty) was used in Article 21 as a sense which excludes the
freedoms dealt in Article 19..."
33. Rejecting the argument of the Attorney General, the learned Judge held
that Clauses (4) to (7) of Article 22 do not form a complete Code and that "the
language of Article 21 is perfectly general and covers deprivation of personal
liberty or incarceration, both for punitive and preventive reasons." (Page 207).
34. 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 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).
35. 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).
36. "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).
37. S.R. Das, J. also, rejected the argument that the whole of the Indian
Penal Code is a law imposing reasonable restriction on the rights conferred by
Article 19(1), with these observations (at Page 303) :
"To say that every crime undermines the security of the State and,
therefore, every section of the Indian Penal Code, irrespective of whether it
has any reference to speech or expression, is a law within the meaning of this
clause is wholly unconvincing and betrays only a vain and forlorn attempt to
find an explanation for meeting the argument that any conviction by a Court of
law must necessarily infringe Article 19(1)(a). There can be no getting away
from the fact that a detention as a result of a conviction impairs the freedom
of speech for beyond what is permissible under Clause (2) of Article 19.
Likewise, a detention on lawful conviction impairs each of the other personal
rights mentioned in Sub-clauses (3) to (6). The argument that every section of
the Indian Penal Code irrespective of whether it has any reference to any of the
rights referred to in Sub-clauses (b) to (e) and (g) is a law imposing
reasonable restriction on those several rights has not even the merit of
plausibility. There can be no doubt that a detention as a result of lawful
conviction must necessarily impair the fundamental personal rights guaranteed by
Article 19(1) far beyond what is permissible under Clauses (2) to (6) of that
article and yet nobody can think of questioning the validity of the detention or
of the section of the Indian Penal Code under which the sentence was passed."
(ii) Das, J. then gave an additional reason as to why validity of punitive
detention or of the sections of the Penal Code under which the sentence was
passed, cannot be challenged on the ground of Article 19, thus:
Because the freedom of his person having been lawfully taken away, the
convict ceases to be entitled to exercise any of the rights protected by Clause
(1) of Article 19.
(iii) The learned Judge also held that "Article 19 protects some of the
important attributes of personal liberty as independent rights and the
expression 'personal liberty' has been used in Article 21 as. a compendious term
including within its meaning all the varieties of rights which go to make up the
personal liberties of men." (Page 299)
38. 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 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)
39. 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).
40. In applying the above test, which was the same as adopted by Kania, C.J.,
Fazal Ali, J. reached a conclusion contrary to that reached by the Chief
Justice, on the following reasoning :
Punitive detention is however essentially different from preventive
detention. A person is punitively detained only after trial for committing a
crime and after his guilt has been established in a competent court of justice.
A person so convicted can take his case to the State High Court and sometimes
bring it to this Court also; and he can in the course of the proceedings
connected with his trial take all pleas available to him including the plea of
want of jurisdiction of the Court of trial and the invalidity of the law under
which he has been prosecuted. The final judgment in the criminal trial will thus
constitute a serious obstacle in his way if he chooses to assert even after his
conviction that his right under Article 19(1)(d) has been violated. But a person
who is preventively detained has not to face such an obstacle whatever other
obstacle may be in his way. (Page 146)
41. 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 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, JJ. 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 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 (I) of the
article may be justified.
42. It is true, as was pointed out by Hidayatullah, J. (as he then was) in
Dr. Ram Manohar Lohia's 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.
43. This proposition was recently (1975) reiterated in Hardhan Saha & Anr. v.
State of West Bengal . 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 or
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)
44. 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.
45. 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."
46. 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. Bhagwati 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."
47. 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
[1940] FCR 188 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.
48. 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.
49. 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. [1951] SCR 451
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.
50. 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. [1959] SCR 12 In that case, the constitutional 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.
51. 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.
Article 19(1)(a)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.
52. 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 [1930]
283 US 697 at p. 708 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.
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.
53. N.H. Bhagwati, J. who delivered the unanimous Judgment of the
Constitution Bench, after noting that the object of the impugned legislation is
to provide for the amelioration of the conditions of the workmen in the
newspaper industry, overruled this contention of the employers, thus :
That, however would be a consequence which would be extraneous and not
within the contemplation of the legislature. It could therefore hardly be urged
that the possible effect of the impact of these measures in conceivable cases
would vitiate the legislation as such. All the consequences which have been
visualized in the behalf by the petitioners, viz., the tendency to curtail
circulation and thereby narrow the scope of dissemination of information,
fetters on the petitioners' freedom to choose the means of exercising the right,
likelihood of the independence of the press being undermined by having to seek
government aid; the imposition of penalty on the petitioners' right to choose
the instruments for exercising the freedom or compelling them to seek
alternative media, etc. would be remote and depend upon various factors which
may or may not come into play. Unless these were the direct or inevitable
consequences of the measures enacted in the impugned Act, it would not be
possible to strike down the legislation as having that effect and operation.
(emphasis added)
The learned Judge further observed that the impugned Act could be
"legitimately characterised as a measure which affects the press", but its
"intention or the proximate effect and operation" was not such as would take
away or abridge the right of freedom of speech and expression guaranteed in
Article 19(1)(a), therefore, it could not be held invalid on that ground. The
impugned decision of the Wage Board, however, was held to be ultra vires the Act
and contrary to the principles of natural justice.
54. 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.
55. Again, in Sakal Papers (P) Ltd. & Ors. v. The Union of India . 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.
56. In Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr. 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 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).
57. 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.
58. 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 legislation 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).
59. In Bennett Coleman 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".
60. From a survey of the cases noticed above, a comprehensive test which can
be formulated, may be re-stated as under :
Does the impugned law, in its pith and substance, whatever may be its form
and object, deal with any of the fundamental rights conferred by Article 19(1) ?
If it does, does it abridge or abrogate any of those rights ? And even if it
does not, in its pith and substance, deal with any of the fundamental rights
conferred by Article 19(1), is the direct and inevitable effect of the impugned
law such as to abridge or abrogate any of those rights ?
The mere fact that the impugned law incidentally, remotely or collaterally
has the effect of abridging or abrogating those rights, will not satisfy the
test. If the answer to the above queries be in the affirmative, the impugned law
in order to be valid, must pass the test of reasonableness under Article 19. But
if the impact of the law on any of the rights under Clause (1) of Article 19 is
merely incidental, indirect, remote or collateral and is dependent upon factors
which may or may not come into play, the anvil of Article 19 will not be
available for judging its validity.
62. Now, let us apply this test to the provisions of the Penal Code in
question. Section 299 defines 'culpable homicide' and Section 300 defines
culpable homicide amounting to murder. Section 302 prescribes death or
imprisonment for life as penalty for murder. It cannot, reasonably or
rationally, be contended that any of the rights mentioned in Article 19(1) of
the Constitution confers the freedom to commit murder or, for the matter of
that, the freedom to commit any offence whatsoever. Therefore, penal laws, that
is to say, laws which define offences and prescribe punishment for the
commission of offences do not attract the application of Article 19(1). We
cannot, of course, say that the object of penal laws is generally such as not to
involve any violation of the rights conferred by Article 19(1) because after the
decision of this Court in the Bank Nationalization case the theory, that the
object and form of the State action alone determine the extent of protection
that may be claimed by an individual and that the effect of the State action on
the fundamental right of the individual is irrelevant, stands discredited. But
the point of the matter is that, in pith and substance, penal laws do not deal
with the subject matter of rights enshrined in Article 19(1). That again is not
enough for the purpose of deciding upon the applicability of Article 19 because
as the test formulated by us above shows, even if a law does not, in its pith
and substance, deal with any of the fundamental rights conferred by Article
19(1), if the direct and inevitable effect of the law is such as to abridge or
abrogate any of those rights, Article 19(1) shall have been attracted. It would
then become necessary to test the validity of even a penal law on the touchstone
of that Article. On this latter aspect of the matter, we are of the opinion that
the deprivation of freedom consequent upon an order of conviction and sentence
is not a direct and inevitable consequence of the penal law but is merely
incidental to the order of conviction and sentence which may or may not come
into play, that is to say, which may or may not be passed. Considering therefore
the test formulated by us in its dual aspect, we are of the opinion that Section
302 of the Penal Code does not have to stand the test of Article 19(1) of the
Constitution.
63. 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.
64. 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?
65. 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 and Khyerbari Tea Co. v. State of
Assam & Ors.
it was laid down by this Court that if the writ
petitioner succeeds in showing that the impugned law ex facie abridges or
transgresses the rights coming under any 6f 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.
66. 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
Article 19.
67. In B. Banerjee v. Anita Pan . this Court, speaking through V.R. Krishna
Iyer, J., reiterated the ratio of Ram Krishna Dalmia's case [1959] SCR 279,
297-propositions (b) & (c) that :
there is always a presumption in favour of the constitutionality of an
enactment and the burden is upon him who attack it to show that there has been a
clear transgression of the constitutional principles"; and
"that it must be presumed that the legislature understands and correctly
appreciates the need of its own people, that its laws are directed to problems
made manifest by experience and that its discriminations are based on adequate
grounds.
It was emphasised that "Judges act not by hunch but on hard facts properly
brought on record and sufficiently strong to rebuff the initial presumption of
constitutionality of legislation. Nor is the Court a third Chamber of the House
to weigh whether it should draft the clause differently". Referring, inter alia,
to the decision of this Court in R.M.D. Chamarbaugwala (ibid), and Seervai's
'Constitutional Law of India', Vol. I, page 54, it was recalled, "Some courts
have gone to the extent of holding that there is a presumption in favour of
constitutionality, and a law will not be declared unconstitutional unless the
case is so clear as to be free from doubt; and to doubt the constitutionality of
a law is to resolve it in favour of its validity". Similar view was taken by a
Bench of seven learned Judges of this Court in Pathumma v. State of Kerala.
[1978] 2 S.C.R. 547
68. 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."
69. A similar warning was echoed by the Supreme Court of the United States in
Dennis v. United States 341 US 494, 525:95 L. Ed. 1137; 71 S. Ct. 857 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.
70. In Gregg v. Georgia, 428 US 153: 49 L. Ed. 2d 859 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 consequently the moral values of the
people.
71. 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 [1952] S.C.R. 797 at 607 reiterated in Jagmohan).
72. 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.
73. The Law Commission of India, after making an intensive and extensive
study of the subject of death penalty in India, published and submitted its 35th
Report in 1967 to the Government. After examining, a wealth of evidential
material and considering the arguments for and against its retention, that high-
powered Body summed up its conclusions at page 354 of its Report, as follows :
The issue of abolition or retention has to be decided on a balancing of the
various arguments for and against retention. No single argument for abolition or
retention can decide the issue. In arriving at any conclusion on the subject,
the need for protecting society in general and individual human beings must be
borne in mind.
It is difficult to rule out the validity of, of the strength behind, many
of the arguments for abolition nor does, the Commission treat lightly the
argument based on the irrevocability of the sentence of death, the need for a
modern approach, the severity of capital punishment and the strong feeling shown
by certain sections of public opinion in stressing deeper questions of human
values.
Having regard, however, to the conditions in India, to the variety of the
social up-bringing of its inhabitants, to the disparity in the level of morality
and education in the country, to the vastness of its area, to diversity of its
population and to the paramount need for maintaining law and order in the
country at the present juncture, India cannot risk the experiment of abolition
of capital punishment.
74. 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 CrPC 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.
75. Death penalty has been the subject of an age-old debate between
Abolitionists and Retentionists, although recently the controversy has come in
sharp focus. Both the groups are deeply anchored in their antagonistic views.
Both firmly and sincerely believe in the righteousness 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.
76. 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.
77. 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. Theoretically, 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.
78. 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.
79. In the first place, we will notice a few decisions of Courts wherein the
deterrent value of death penalty has been judicially recognised.
80. In Paras Ram v. State of Punjab, S.L.P. (Crl.) Nos. 698 & 678 of 1973,
decided on October 9, 1973. the facts were that Paras Ram, who was a fanatic
devotee of the Devi, used to hold Satsangs at which bhajans were sung in praise
of the Goddess. Paras Ram ceremonially beheaded his four year old boy at the
crescendo of the morning bhajan. He was tried, convicted and sentenced to death
for the murder. His death sentence was confirmed by the High Court. He filed a
petition for grant of special leave to appeal to this Court under Article 136 of
the Constitution. It was contended on behalf of Paras Ram that the very
monstrosity of the crime provided proof of his insanity sufficient to exculpate
the offender under Section 84, Indian Penal Code, or material for mitigation of
the sentence of death. V. R. Krishna Iyer, J., speaking for the Bench, to which
one of us (Sarkaria, J.) was a party, refused to grant special leave and
summarily dismissed the petition with these observations:
The poignantly pathological grip of macabre superstitions on some crude
Indian minds in the shape of desire to do human and animal sacrifice, in
defiance of the scientific ethos of our cultural heritage and the scientific
impact of our technological century, shows up in crimes of primitive horror such
as the one we are dealing with now, where a blood-curdling butchery 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)
81. 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 alternative
will be an adequate substitute for the death penalty.
82. In Ediga Anamma v. State of Andhra Pradesh, .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."
83. In Shiv Mohan Singh v. State (Delhi Administration) [1977] 3 S.C.R. 172
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.
84. Again, in Charles Sobraj v. The Superintendent, Central Jail, Tihar, New
Delhi 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.
85. In Trop v. Dulleh, 256 US 86 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.
86. 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.
87. Speaking for the majority, in Gregg v. Georgia, Stewart, J. reiterated
his views with regard to the deterrent and retributive effect of death penalty.
88. 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.
89. Even Marchese De Cesare Bonesana Beccaria, who can be called the father
of the modern Abolitionist movement, concedes in his treatise, "Dei Delitti a
della Pana" (1764), that capital punishment would be justified in two instances:
Firstly, in an execution would prevent a revolution against popularly
established Government; and, secondly, if an execution was the only way to deter
others from committing a crime. The adoption of double standards for capital
punishment in the realm of conscience is considered by some scholars as the
biggest infirmity in the Abolitionists' case.
90. Thorsten Sallin is one of the penologists who has made a scientific study
of the subject of capital punishment and compiled 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."
91. In his article appearing in "Criminology Review Year Book" (1979) Vol. I,
compiled by Sheldon L. Messinger & Egon Bittner Published by Sage. Publications
INC Ltd., 275 South Beverly Drive. Beverly Hills, California 90212., Isaac
Ehrlich, after surveying the past literature on the relation between capital
punishment and capital crimes, has (at pp. 31-33) pointed out the following
shortcomings in the thesis of Sellin:
The principal shortcoming of the work by Sellin and others using his
methodology is that the approach taken and the methods applied do not permit a
systematic examination of the main implications emanating from the general
theory of deterrence. The shortcoming is basic, because the implications
following from the general deterrence hypothesis are what Sellin was
challenging. Yet his work neither develops nor tests the full range of
implications following from the theory he attempts to reject; nor does he
develop or test a competing theory. In addition, to my knowledge, Sellin never
reported in any of his studies the results of any systematic (parametric or non-
parametric) statistical tests that could justify his strong and unqualified
inferences."
"Another fundamental shortcoming of Sellin's studies is their failure to
account systematically for other factors that are expected by the deterrence
hypothesis to affect the frequency of murder in the population, apart from the
relevant risk of execution. These are variables such as the probability of
apprehension, the conditional probability of conviction given apprehension, the
severity of alternative punishments for murder, the distribution of income, the
probability of unemployment, and other indicators of differential gains from
criminal activities occurring jointly with murder. Since, as I shall argue
later, some of these variables are expected to be highly correlated with the
conditional probability of execution given conviction of murder, their exclusion
from the statistical analysis can seriously bias estimates of the partial
deterrent effect of capital punishment. Aware of the problem, Sellin attempted
to compare states that are as alike as possible in all other respects. However,
his "matching procedure", based on the assumption that neighbouring states can
satisfy such pre-requisites without any explicit standardization, is simply
insufficient for any valid inferences. Pairs of states, such as New York, and
Rhode Island, Massachusetts and Maine, or Illinois and Wisconsin all included in
his comparisons, differ in their economic and 1 demographic characteristics, in
their law enforcement activities, and in the opportunities they provide for the
commission of other crimes. Moreover, the direction of the causal relationship
between the murder rate and the overall risk of punishment-be it the death
penalty or any other sanction -is not self-evident because, for example, states
with high murder rates are expected to and, in fact do" devote more resources to
apprehend, convict and execute offenders than do states with lower rates.
Specifically, variations in the legal or practical status of the death penalty
occasionally may be the result of, rather than the cause for, changes in the
murder rate, and thus may give rise to an apparent positive association between
these two variables. The same general point applies in connection with the
identification of the effect of any other variable which is a product of law
enforcement activity or private protection against crime. For these reasons, the
true deterrent effect of a sanction such as the death penalty cannot be readily
inferred from simple comparisons of the sort performed by Sellin.
92. 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.
93. The scholar then stresses another purpose of capital punish ment, 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.
94. This eminent social scientist, Prof. Ehrlich See Ehrlich's, The Deterrent
Effect of Capital Punishment, 65 AM Econ. Rev. 397 (1975). And also the comments
of Peter Passell in his article, "The Deterrent Effect of the Death Penalty" in
Stanford Law Review, November 1975, pp. 62-64. whose views we have extracted,
has made intensive studies of the deterrent effect of capital punishment. Then,
a result of his study was also published in the American Economic Review in
June, 1975. He includes a specific test for the presence of a deterrent effect
of capital punishment to the results of earlier studies. He has in his study See
Lee S. Friedman's article at pages 61-87, Review Year Book, 1979, compiled by
Messinger and Bittner 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. 428 US 904 : 49 L.Ed. 1212 (1976)
95. 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.
96. (Quoted in Encyclopaedia Britannica 1978 Book of the Year, pp. 593-594)
97. 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.)
98. 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 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".
99. 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".
100. (Quoted in A World View of Capital Punishment, by James Avery Joyce).
101. J.J. Maclean, a Parliamentarian, articulated his views with regard to
the deterrent, value of capital punishment in the Canadian House of Commons in
the March-April, Debates 1966, as follows :
Whether it (capital punishment) is a greater or lesser deterrent than life
imprisonment. This is an argument that cannot be proven on either side but I
would not like to have to try to convince any one that capital punishment is not
a deterrent. Statistically this cannot be proven because the deterrent effect on
both capital punishment and life imprisonment is obscured by the fact that most
criminals plan a crime on the basis that they are going to avoid any penalty...I
say, the deterrent value is with respect to people who did not commit crimes,
who were deterred from becoming murderers by the fact that capital punishment or
some other heavy penalty would be meted out to them if caught.
(Quoted in Sellin's Capital Punishment).
102. The Law Commission of India in its 35th Report, after carefully sifting
all the materials collected by them, recorded their views regarding the
deterrent effect of capital punishment as follows :
In our view capital punishment does act as a deterrent. We have already
discussed in detail several aspects of this topic. We state below, very briefly,
the main points that have weighed with us in arriving at this conclusion :
(a) Basically, every human being dreads death.
(b) Death, as a penalty, stands on a totally different level from
imprisonment for life or any otber punishment. The difference is one of quality,
and not merely of degree.
(c) Those who are specifically qualified to express an opinion on the
subject, including particularly the majority of the replies received from State
Governments, Judges, Members of Parliament and Legislatures and Members of the
Bar and police officers-are definitely of the view that the deterrent object of
capital punishment is achieved in a fair measure in India.
(d) As to conduct of prisoners released from jail (after undergoing
imprisonment for life), it would be difficult to come to a conclusion, without
studies extending over a long period of years.
(e) Whether any other punishment can possess all the advantages of capital
punishment is a matter of doubt.
(f) 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.
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.
103. 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.
104. Even retribution in the sense of society's reprobation for the worst of
crimes, i.e., murder, is not an altogether outmoded concept. This view is held
by many distinguished sociologist, jurists and judges.
Lord Justice Denning, Master of the Rolls of the Court of Appeal in England,
appearing before the British Royal Commission on Capital Punishment, stated his
views on this point as under:
Punishment is the way in which society expresses its denunciation of wrong-
doing, and, in order to maintain respect for law, it is essential that the
punishment inflicted for grave crimes should adequately reflect the revulsion
felt by the great majority of citizens for them. It is a mistake to consider the
objects of punishment as being deterrent or reformative or preventive and
nothing else...The truth is that some crimes are so outrageous that society
insists on adequate punishment, because the wrong-doer deserves it, irrespective
of whether it is a deterrent or not.
That retribution is still socially acceptable function of punishment, was
also the view expressed by Stewart, J., in Furman v. Georgia, at page 389, as
follows :
...I would say only that I cannot agree that retribution is a
constitutionally impermissible ingredient in the imposition of punishment. The
instinct for retribution is part of the nature of man, and channeling that
instant, in the administration of criminal justice serves an important purpose
in promoting the stability of a society governed by law. When people begin to
believe that organized society is unwilling or unable to impose upon criminal
offenders the punishment they 'deserve', then there are sown the seeds of
anarchy of self help, vigilant justice, and lynch law.
105. Patrick Devlin, the eminent jurist and judge, in his book, "The Judge",
emphasises the retributive aspect of the purpose of punishment and criminal
justice, thus:
I affirm that justice means retribution and nothing else. Vindictiveness is
the emotional outflow of retribution and justice has no concern with that. But
it is concerned with the measurement of deserts. The point was put lucidly and
simply by the Vicar of Longton in a letter to The Times, from which with his
permission I quote: Firstly, far from pretending that retribution should have no
place in our penal system, Mr. Levin should recognize that it is logically
impossible to remove it. If it were removed, all punishments should be rendered
unjust. What could be more immoral than to inflict imprisonment on a criminal
for the sake of deterring others, if he does not deserve it? Or would it be
justified to subject him to a compulsory attempt to reform which includes a
denial of liberty unless, again he deserves it?
106. 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]
107. Earlier in 1949-1953, the British Royal Commission in Para 59 of its
Report spoke in a somewhat similar strain:
We think it is reasonable to suppose that the deterrent force of capital
punishment operates not only by affecting the conscious thoughts of individuals
tempted to commit murder, but also by building up in the community, over a long
period of time, a deep feeling of peculiar abhorrence for the crime of murder.
The fact that men are hung for murder is one great reason why murder is
considered so dreadful a crime. This widely diffused effect on the moral
consciousness of society is impossible to assess, but it must be at least as
important as any direct part which the death penalty may play as a deterrent in
the calculations of potential murderers.
108. 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)
109. 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.
110. 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.
111. In regard to the retributive aspect of capital punishment, we may cite
one recent illustration showing how demand for retribution, 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.
112. 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 center, smashing windows, burning police cars, chanting: "We want
justice" Writing in 'The Voice', a local paper from San Franscisco, in its issue
of June 4, 1979, Lawrence Mullen, fired at the jury a volley of questions, to
which the agitated public would demand answers:
"What comment did the jury make on the value of life? Was the tragedy of
the execution-style murders the central issue, or was the jury only concerned
with technicalities, absurdities and loopholes of the law? Was justice
considered not revenge but justice? High irony, Dan White's strong belief in
capital punishment has found thousands of new converts. From now on a lot of
people will die because Dan White lives. Are we so insensitive, callous and
inhuman that we accept or excuse violence and brutality? Consider White's
defence lawyer, Douglas Schmidt's reference to that tragic Monday in November :
"It was a tragedy. Now it's behind us."
"For those who loved and still miss George Moscone and Harvey Milk, for
those who were cast into darkness and cried for justice, for those who still
seek answers, the lawyer's words are a chilling reminder that we must not forget
that we must not 'put it behind us'.
The former cop, a law and order and capital punishment advocate driven by
his passion, by his lack of reason, to destroy those who he disagreed with, and
by doing so demonstrated the greatest human failure- the inability to co-exist.
"Dan White symbolizes the violence and brutality that is undermining
civilization.
113. 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)," 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".
114. 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.
115. 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 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)
116. 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.
117. While the Abolitionists look upon death penalty as something which is
per se immoral and inhuman, the Retentionists apprehened that if we surrender
even the risk of the last remaining horrifying deterrent by which to frighten
the toughts of the underworld, we may easily tip the scales in favour of the
anti-social hoodlums. They fear that abolition of capital punishment, will
result in increase of murders motivated by greed, and in affable "crime
passionelle."
118. "It is feared", wrote George A. Florist, Sunday Tribune, December 8,
1963 "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 promise, they argue that capital
punishment is the most formidable safeguard against terrorism.
119. 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.
120. 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".
121. 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.
122. 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.
123. 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 deter rent or other penological
purpose. Firstly, statistics of deterred potential murderers are hard to obtain.
Secondly, the approach adopted by the Abolitionists is oversimplified at the
cost of other relevant but imponderable factors, the appreciation of which is
essential to assess the true penological value of capital punishment. The number
of such factors is infinitude, their character variable, duration transient and
abstract formulation difficult. Conditions change from country to country and
time to time. Due to the inconstancy of social conditions, it is not
scientifically possible to assess with any degree of accuracy, as to whether the
variation in the incidence of capital crime is attributable to the presence or
absence of death penalty in the penal law of that country for such crimes. That
is why statistical attempts to assess the true penological value of capital
punishment, remain inconclusive.
124. 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" An Enquiry into
Criminal Guilt by Prof. Peter Brett, 1963 Edn. Melbourne, page 13. 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.
125. 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.
126. 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 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 percent 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 percent of those polled preferred to have an
operative death penalty.
127. 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.
128. Coming back to the review of the world crime situation, during the last
decade, Saudi Arabia and some other countries have reinstated death penalty or
enacted harsher punishments not only for murder but some other crimes, also. In
America, apart from 32 States which reinstated death penalty under revised laws
after Furman, the legislatures of some of the remaining 15 States have either
reinstituted or are considering to reintroduce death penalty. Currently, a
federal legislation for reinstituting or prescribing capital punishment for a
larger range of offences of homicide is under consideration of United States'
Congress. According to the report of the Amnesty International, in U.S.A., as on
May 1, 1979, death penalty can be imposed for aggravated murder in 35 States.
Attempts have been made in other countries, also to reintroduce death penalty.
In Britain, in the wake of serious violent incidents of terrorism, a Bill was
moved in Parliament to reintroduce capital punishment for murder and certain
other offences. It was defeated by a free vote on April 19, 1979. Even so, no
less than 243 Members of Parliament had voted in favour of this measure. We have
noted that Israel has also recently reinstituted death penalty for certain
criminal 'acts of in human cruelty'. In People's Republic of China, a new
legislation was adopted on July 1, 1979 by China's Parliament, according to
Article 43 of which, death penalty can be imposed "for the most heinous crimes".
In Argentina, the death penalty was reintroduced in 1976. Similarly, Belgium
reintroduced death penalty and increased the number of crimes punishable with
death. In France, in 1978 a movement in favour of abolition initiated by the
French bishops failed to change the law under which death penalty is a valid
sanction for murder and certain other offences. In Japan, death penalty is a
legal sanction for 13 crimes. In Greece and Turkey, death penalty can be imposed
for murder and other capital offences. In Malaysia and the Republic of Singapore
under the Drugs Act of May, 1979, misuse of drugs is also punishable with death.
Cuba introduced a new penal code in February 1978, which provides punishment of
death by shooting for crimes ranging from some types of murder and robbery to
hijacking and rape.
129. 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
complications") (Article 67); sabotage (Article 68); organizing the commission
of any of the above-named offences (Article 72); commission of any of the above-
named offences against other Working People's State (Article 73); banditry
(Article 77); actions disrupting the work of corrective labour institutions
(Article 77-1); making or passing counterfeit money or securities (when the
offence is committed as a form of business) (Article 87); violation of rules for
currency transactions (when committed as a form of business or on a large scale,
or by a person previously convicted under this Article) (Article 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.
130. Surveyors and students of world events and current trends believe that
the reversal of the attitudes towards criminals and their judicial punishments
in general, and capital punishment in particular in several countries of the
world, is partly due to the fact that milder sanctions or corrective processes,
or even the alternative of imprisonment, have been found inadequate and wanting
to stem the mounting tide of serious crime. Writing in Encyclopaedia Britannica,
1978 Book of the Year under the caption, 'Changing Attitudes Towards Criminals',
Richard Whittingham sums up the cause that has led to the adoption of this New
Hard Line, thus:
Horror Story after horror story of dangerous criminals sent back into
society on bail or parole from a penitentiary or (in many cases) release from a
mental institution to commit further crimes have forced people to say that
enough is enough. The consensus seemed to be that there must be no repetition of
such situations as the one described by Chicago Sun-Times Columnist Roger Simon
in a September 4, 1977, article about a man who had just been convicted of a
particularly despicable crime.
131. Faced with the specter 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."
132. 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".
133. India also, as the statistics furnished by the respondent (Union of
India) show, is afflicted by a rising rate of violent crime, particularly
murder, armed robbery and dacoity etc., and this has been the cause of much
public concern. All attempts made by individual members to move Bills in the
Parliament for abolition or restriction of the area of death penalty have ended
in failure. At least four of such unsuccessful attempts were made after India
won Independence, in 1949, 1958, 1961 and 1978. It may be noted that the last of
these cttempts was only to restrict the death penalty to a few types of murders
specified in the Bill. Though it was passed by the Rajya Sabha after being
recast, it has not been passed by Lok Sabha.
134. 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 CrPC, 1973, it is not possible to hold that
the provision of death penalty as an alternative punishment for murder, in
Section 302, Penal Code is unreasonable and not in the public interest. We
would, therefore, conclude that the impugned provision in Section 302, violates
neither the letter nor the ethos of Article 19.
135. We will now consider the issue whether the impugned limb of the
provision in Section 302, Penal Code contravenes Article 21 of the Constitution.
136. 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.
137. 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' fanciful or 'oppressive', otherwise, it
should be no procedure at all and the requirement of Article 21 would not be
satisfied.
138. 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.
139. In the converse positive form, the expanded article will read as below :
A person 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 CrPC 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.
140. Before we pass on to the main Question No. II, we may dispose of another
contention convassed by Dr. L.M. Singhvi.
141. 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 CrPC, 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.
142. Let us examine this Contention. The European Convention -of Human Rights
came into force on September 1,1953, and 18 countries had signed this Convention
on November 4, 1950. India acceded to this Resolution of the Convention on March
27, 1979. The International Covenant on Civil and Political Rights, inter alia,
provides:
Article 6(1) Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived of his life.
(2) In countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance with the law
in force at the time of the commission of the crime....
It will be seen that Clauses (1) and (2) of Article 6 do not abolish or
prohibit the imposition of death penalty in all circumstances. All that they
require is that, firstly, death penalty shall not be arbitrarily inflicted;
secondly, it shall be imposed only for most serious crimes in accordance with a
law, which shall not be an ex post facto legislation. Thus, the requirements of
these clauses are substantially the same as the guarantees or prohibitions
contained in Articles 20 and 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.
143. 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 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.
144. 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.
145. Are the provisions of Section 354(3) of the CrPC, 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 CrPC, 1973, delegates to the Court the duty
to legislate the field of 'special reasons' for choosing between life and death,
and
(b) permits imposition of death penalty in an arbitrary and whimsical
manner in as much as it does not lay down any rational principles 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)).
146. 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.
147. 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.
148. 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.
149. 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.
150. Under the CrPC, 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 Sub-section (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.
151. 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 deference to this recommendation, Section 66 of the CrPC (Amendment) Act,
1955 (XXVI of 1955) deleted old Sub-section (5) of Section 367 with effect from
January 1, 1956, and thereafter, for such capital offences, it was left to the
Court, on the facts of each case, to pass, in its discretion, for reason to be
recorded, the sentence of death or the lesser sentence. This led to some
difference of opinion whether, even after the Amendment of 1955, in case of
murder the normal punishment was death or imprisonment for life (See A.I.R.
Commentaries on the CrPC, 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, held that death is not a normal
penalty for murder. As against this, the Division Bench of the Madras High
Court in Veluchami Thevar, A.I.R. 1965 Mad. 48 at p. 49 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.
152. This view appears to be in accord with the decision of this Court in
lman Ali & Anr. v. State of Assam. 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.
153. 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.
154. Section 354(3) of the CrPC, 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.
155. 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.
156. 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 circumstances
relevant to sentencing should be encouraged and both the prosecution and the
accused should be allowed to cooperate in the process.
157. 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 A.I.R. 1976 SC. 2286 "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."
158. We may also notice Sections 432, 433 and 433A, as they throw light as to
whether life imprisonment as currently administered in India, can be considered
an adequate alternative to the capital sentence even in extremely heinous cases
of murder.
159. 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.
160. With effect from December 18, 1978, the CrPC (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.
161. 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.
162. We may next notice other provisions of the extent Code (corresponding to
Sections 374, 375, 376 and 377 of the repealed Code) bearing on capital
punishment. Section 366(i) of the Code requires the Court passing a sentence of
death to submit the proceedings to the High Court, and further mandates that
such a sentence shall not be executed unless it is confirmed by the High Court.
On such a reference for confirmation of death sentence, the High Court is
required to proceed in accordance with Sections 367 and 368. Section 367 gives
power to the High Court to direct further inquiry to be made or additional
evidence to be taken. Section 368 empowers the High Court to confirm the
sentence of death or pass any other sentence warranted by law or to annul or
alter the conviction or order a new trial or acquit the accused. Section 369
enjoins that in every case so submitted, the confirmation of the sentence, or
any new sentence or order passed by the High Court, shall, when such court
consists of two or more Judges, be made, passed and signed by at least two of
them. Section 370 provides that where any such case is heard before a Bench of
Judges and such Judges are equally divided in opinion, the case shall be
referred to a third Judge.
163. 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.
164. 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,
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.
165. 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 entertain an appeal on behalf of a person whose sentence of
death awarded by the Sessions Judge is confirmed by the High Court.
166. 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
[1971] 402 US 183
(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 unguided discretion to the Jury (or the Judge) to choose
arbitrarily between a sentence of death and imprisonment for a capital offence,
violates the Eighth Amendment, is not applicable in India. We do not have in our
Constitution any provision like the Eighth Amendment, nor are we at liberty to
apply the test of reasonableness with the freedom with which the Judges of the
Supreme Court of America are accustomed to apply "the due process" clause. There
are grave doubts about the expediency of transplanting western experience in our
country. Social conditions are different and so also the general intellectual
level. Arguments which would be valid in respect of one area of the world may
not hold good in respect of another area.
(iv) (a) This discretion in the matter of sentence is to be exercised by
the Judge judicially, after balancing all the aggravating and mitigating
circumstances of the crime.
(b) The discretion is liable to be corrected by superior courts. The
exercise of judicial discretion on well-recognised principles is, in the final
analysis, the safest possible safeguard for the accused.
In view of the above, it will be impossible to say that there would be at
all any discrimination, since crime as crime may appear to be superficially the
same but the facts and circumstances of a crime are widely different. Thus
considered the provision in Section 302, Penal Code is not violative of Article
14 of the Constitution on the ground that it confers on the judges an unguided
and uncontrolled discretion in the matter of awarding capital punishment of
imprisonment for life.
(v) (a) Relevant facts and circumstances impinging on the nature and
circumstances of the crime can be brought before the Court at the preconviction
stage, notwithstanding the fact that no formal procedure for producing evidence
regarding such facts and circumstances had been specifically provided. Where
counsel addresses the Court with regard to the character and standing of the
accused, they are duly considered by the Court unless there is something in the
evidence itself which belies him or the Public Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its discretion to choose
either of the two alternative sentences provided in Section 302, Penal Code,
"the Court is principally concerned with the facts and circumstances whether
aggravating or mitigating, which are contracted 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)
167. A study of the propositions set out above, will show that in substance,
the authority of none of them has been affected by the legislative changes since
the decision in Jagmohan's case. Of course, two of them require to be adjusted
and attuned to the shift in the legislative policy. The first of those
propositions is No. (iv) (a) which postulates, that according to the then extant
CrPC 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.
168. In this view we are in accord with the dictum of this Court in Balwant
Singh v. State of Punjab , 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 in mind
this fundamental principle of policy embodied in Section 354(3).
169. 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.
170. 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 murder shall be punished with
the sentence of life imprisonment. The court can depart from that rule and
impose the sentence of death only if there are special reasons for doing so.
Such reasons must be recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for the
offence of murder under Section 302 Penal Code, the court must have regard to
every relevant circumstance relating to the crime as well as the criminal. If
the court finds, but not otherwise, that the offence is of an exceptionally
depraved and heinous character and constitutes, on account of its design and the
manner of its execution, a source of grave danger to the society at large, the
court may impose the death sentence.
171. 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).
172. The new Section 235(2) adds to the number of several other safeguards
which were embodied in the Criminal Procedure Code of 1898 and have been re-
enacted in the Code of 1973 Then, the errors in the exercise of this guided
judicial discretion are liable to be corrected by the superior courts. The
procedure provided in Criminal Procedure Code for imposing capital punishment
for murder and some other capital crimes under the Penal Code cannot, by any
reckoning, be said to be unfair unreasonable and unjust. Nor can it be said that
this sentencing discretion, with which the courts are invested, amounts to
delegation of its power of legislation by Parliament. The argument to that
effect is entirely misconceived. We would, therefore, re-affirm the view taken
by this Court in Jagmohan, and hold that the impgned provisions do not violate
Articles 14, 19 and 21 of the Constitution.
173. 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.
174. Dr. Chitale contends that the wide observations in Jagmohan as to the
impossibility of laying down standards or norms in the matter of sentencing 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.
175. 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.
176. As pointed out in Jagmohan, such "standardisation" is well-nigh
impossible.
177. 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 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
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.
178. 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 different from one another in
ways that legislatures cannot anticipate, and limitations of language prevent
the precise description of differences that can be anticipated." Messinger and
Bittner's Crimonology Year Book (Ibid) Albert W. Alcherler's article at page 421
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.
179. 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.
180. 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), the Court would not by over-leaping its bounds
rush to do what Parliament, in its wisdom, varily did not do.
181. 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 predilection 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.
182. 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 Criminal Appeals
Nos. 335 etc of 1977 and 81 and 82 of 1978 in the context of laying down
standards in the discretionary 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 [1912] A.C. 623.
"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 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."
183. "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.
184. 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.
185. Soon after the decision in Furman, the Georgia Legislature amended its
statutory scheme. The amended statute retains the death penalty for six
categories of crime: murder, kidnapping for ransom or where victim is harmed,
armed robbery, rape, treason, and aircraft hijacking. The statutory aggravating
circumstances, the existence of any of which may justify the imposition of the
extreme penalty of death, as provided in that statute, are :
(1) The offence of murder, rape, armed robbery, or kidnapping was committed
by a person with a prior record of conviction Tor 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 commit murder or committed
murder as an agent or employee of another person.
(7) The offence of murder, rape, armed robbery, or kidnapping was
outrageiously or want only vile horrible or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the victim.
(8) The offence of murder was committed against any peace officer,
corrections employee or fireman while engaged in the performance or his official
duties.
(9) The offence of murder was committed by a person in, or who has escaped
from, the lawful custody of a peace officer or place of lawful confinement.
(10) The murder was committed for the purpose of avoiding, interfering
with, or preventing a lawful arrest or custody in a place of lawful confinement,
of himself or another.
186. The Supreme Court of Georgia in Arnold v. State 236 Ga 534, 540, 224 SE
2d 386, 391 (1976), 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.
187. 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.
188. 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.
189. Likewise in the companion case Proffitt v. Florida 428 US 242, 49 L. Ed
2d 913 (1976), 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. 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.
190. It may be recalled that in Furman, that Court bad held that if clear,
definite and articulate standards channeling the sentencing discretion for
imposition of the death penalty are not laid down in a statute, it would violate
the Eighth and Fourteenth Amendments. It may be noted that the aggravating
circumstance No. (7) is couched in a very wide and elastic language. The
expressions "outrageously or wantonly vile", "horrible or inhuman" employed
therein are of the widest amplitude and give this aggravating circumstance the
character of an omnibus clause. Likewise, in the Florida statute, the scope of
the words "especially heinous, atrocious and cruel" was equally large and
imprecise.
200. 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.
201. 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 :
202. 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.
202. 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.
203. 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.
204. 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.
205. 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".
206. 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".
207. 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, loose-ended 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.
208. Moreover, over-standardisation of the sentencing process tends to defeat
its very purpose, and may actually produce opposite results.
209. Messinger and Bittner's Criminology Year Book (ibid) Albert W.
Alcherler's article at page 421 highlights this danger, by taking, inter alia,
the example of the guided-discretion capital punishment statutes favoured by the
Supreme Court in Gregg v. Georgia and its companion cases, as follows :
A defendant convicted of capital murder might wish to make the following
speech to the jury about to consider whether capital punishment should be
imposed :
I am deeply sorry for my crime which I recognize was about as bad as any
that can be imagined. I did, in fact, go to the police station shortly after the
killing to surrender and make a full confession. Although I have done some
terrible things in my life you may wish to know, before deciding whether I
should live or die, that I have also done some good. I once risked my life in
combat to save five comrades-an action for which I was awarded the Silver Star-
and for the last 10 years I have personally cared for my invalid mother while
supporting 5 younger brothers and sisters.
"The mitigating factors listed in today's capital punishment statutes are
sometimes quite general, but none that I have seen in any statute would permit a
jury to consider any of the circumstances mentioned in this defendant's speech
(or, for that matter any other evidence of pre-crime virtue or past-crime
remorse). Apparently the Florida statute's upheld in Proffitt v. Florida would
not; yet the Supreme Court plurality, seemingly oblivious to the statutes
limitations, declared in a companion case, 'A jury must be allowed to consider
on the basis of all relevant evidence not only why a death sentence should be
imposed, but also why it should not be imposed." (Jurek v. Texas 428 US 262, 271
(1976)).
210. 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 strait-jacket 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.
211. 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." Per Srewart, J. in Gregg. v. Georgia.
212. 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 offender, also.
213. We will first notice some of the aggravating circumstances which, in the
absence of any mitigating circumstance, have been regarded as an indication for
imposition of the extreme penalty.
214. 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.
215. 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 CrPC, 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".
216. With great respect, we find ourselves unable to agree to this
enunciation. As we read Sections 354(3) and 235(2) and other related provisions
of the Code of 1973, it is quite clear to us that for making the choice of
punishment or for ascertaining the existence or absence of "special reasons" in
that context, the Court must pay due regard both to the crime and the criminal.
What is the relative weight to be given to the aggravating and mitigating
factors,depends on the facts and circumstances of the particular case. More
often than not, these two aspects are so intertwined that it is difficult to
give a separate treatment to each of them. This is so because 'style is the
man'. In many cases, the extremely cruel or beastly manner of the commission of
murder is itself a demonstrated index of the depraved character of the
perpetrator. That is why, it is not desirable to consider the circumstances of
the crime and the circumstances of the criminal in two separate water-tight
compartments. In a sense, to kill is to be cruel and, therefore, all murders are
cruel. But such cruelty may vary in its degree of culpability. And it is only
when the culpability assumes the proportion of extreme depravity that "special
reasons" can legitimately be said to exist.
217. Drawing upon the penal statutes of the States in U.S.A. framed after
Furman v. Georgia, in general, and Clauses (2)(a), (b), (c) and (d) of the
Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in
particular, Dr. Chitale has suggested these "aggravating circumstances".
Aggravating circumstances : A Court may, however, in the following cases
impose the penalty of death in its discretion :
(a) if the murder has been committed after previous planning and involves
extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or
of a member of any police force or of any public servant and was committed.
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member
or public servant in the lawful discharge of his duty as such member or public
servant whether at the time of murder he was such member or public servant, as
the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of
his duty under Section 43 of the CrPC, 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.
218. 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.
219. 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), CrPC, also. The same
criticism applies to the view taken in Bishnu Deo Shaw v. State of West Bengal
[1979] S.C.C. 714 which follows the dictum in Rajendra Prasad (ibid).
220. In several countries which have retained death penalty, preplanned
murder for monetary gain, or by an assassin hired for 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.
221. Dr. Chitaley has suggested these mitigating factors :
Mitigating circumstances: In the exercise of its discretion in the above
cases, the Court shall take into account the following circumstances :
(1) That the offence was committed under the influence of extreme mental or
emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be
sentenced to death.
(3) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The
State shall by evidence prove that the accused does not satisfy the conditions 3
and 4 above.
(5) That in the facts and circumstances of the case the accused believed
that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another
person,
(7) That the condition of the accused showed that he was mentally defective
and that the said defect impaired his capacity to appreciate the criminality of
his conduct.
222. 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 fo the same procedure
as an adult. The special Acts provide for a reformatory procedure for such
juvenile offenders or children.
223. 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.
224. There are numerous other circumstances justifying the passing of the
lighter sentence; as there are countervailing circumstances of aggravation. "We
cannot obviously feed into a judicial computer all such situations since they
are astrological imponderables in an imperfect and undulating society."
Nonetheless, it cannot be overemphasised that the scope and concept of
mitigating factors in the area of death penalty must receive a liberal and
expansive construction by the courts in accord with the sentencing policy writ
large in Section 354(3). Judges should never be blood-thirsty. Hedging of
murderers has never been too good for them. Facts and figures, albeit
incomplete, furnished by the Union of India, show that in the past, Courts have
inflicted the extreme penalty with extreme infrequency-a fact which attests to
the caution and compassion which they have always brought to bear on the
exercise of their sentencing discretion in so grave a matter. It is, therefore,
imperative to voice the concern that courts, aided by the broad illustrative
guidelines indicated by us, will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the highroad of legislative
policy outlined in Section 354(3), viz, that for persons convicted of murder,
life imprisonment is the rule and death sentence an exception. A real and
abiding concern for the dignity of human life postulates resistance to taking a
life through law's instrumentality. That ought not to be done save in the rarest
of rare cases when the alternative option is unquestionably foreclosed.
225. 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 CrPC, 1973.
226. 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.
227. These writ petitions challenge the constitutional validity of Section
302 of the Indian Penal Code read with Section 354, Sub-section (3) of the CrPC
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 CrPC 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 CrPC cannot be sustained. I am conscious that my
learned brethren on the Bench who constitute the majority have taken a different
view arid upheld the constitutional validity of the death penalty but, with the
greatest respect to them and in all humility, I cannot persuade myself to concur
with the view taken by them. Mine is unfortunately a solitary dissent and it is
therefore, with a certain amount of hesitation that I speak but my initial
diffidence is overcome by my deep and abiding faith in the dignity of man and
worth of the human person and passionate conviction about the true spiritual
nature and dimension of man. I agree with Bernard Shaw that "Criminals do not
die by the hands of the law. They die by the hands of other men. Assassination
on the scaffold is the worst form of assassination because there it is invested
with the approval of the society.... Murder and capital punishment are not
opposites that cancel one another but similars that breed their kind." It was
the Father of the nation who said years ago, reaffirming what Prince Satyavan
said on capital punishment in Shanti Parva of Mahabharata that "Destruction of
individuals can never be a virtuous act" and this sentiment has been echoed by
many eminent men such as Leonardo Da Vinci, John Bright, Victor Hugo and
Berdyaev. To quote again from Bernard Shaw from Act IV of his play "Caesar and
Cleopatra :
And so to the end of history, murder shall breed murder, always in the name
of right and honour and peace, until the Gods are tired of blood and create a
race that can understand.
I share this sentiment because I regard men as an embodiment of divinity and
I am therefore morally against death penalty. But my dissent is based not upon
any ground of morality or ethics but is founded on constitutional issues, for as
I shall presently show, death penalty does not serve any social purpose or
advance any constitutional value and is totally arbitrary and unreasonable so as
to be violative of Articles 14, 19 and 21 of the Constitution.
228. 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. 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 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 264 US 646 : 68 Lawyers Edn. 219
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 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 CrPC in 1973 which by section 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 CrPC 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
[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 CrPC 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).
229. 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 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 moral issues moralssues defying a formalistic judicial
attitude. That is the reason why in some countries like the United States and
Canada where 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 a nd
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
nonlegal non-legal and experience that encircles and illuminates" the topic of
death penalty. "judicial dispensers", said Krishna Iyer, J. in Dalbtr Singh and
Others v. State of Punjab "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 a question of constitutional
interpretation, it is as important toa Judge :
...to have atleast a bowing acquaintance with Acton and Maitland. With
Thucydides, Gibbon and Carlyle, with Homer, Dante Shakespeare and Milton, with
Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with
the books which have been specifically written on the subject. For in such
matters everything turns upon the spirit in which he approaches the question
before him. The words he must construe are empty vessels into which he can pour
nearly anything he will. Men do not gather figs of thistles; nor supply
institutions from judges whose outlook is limited by parish or class. They must
be aware that there are before them more than verbal problems; more than final
solutions cast in generalisations of universal applicability.
Constitutional law raises, in a legal context, problems of economic, social,
moral and political theory and practice to which non-lawyers have much to
contribute. Non-lawyers have not reached unanimity on the answers to the
problems posed; nor will they ever do so, But when judges are confronted by
issues to which there is no legal answer, there is no reason (other than a
desire to maintain a fiction that the law provides the answer) for judicial
discretion to be exercised in a vacuum, immune from non-legal learning and
extra-legal dispute. "Quotations from noble minds are not for decoration (in
hard constitutional cases) but for adaptation within the framework of the law."
Vide: David Pannick on 'Judicial Review of the Death Penalty.' The Judges must
also consider while deciding an issue of constitutional adjudication as to what
would be the moral, social and economic consequences of a decision either way.
The consequences of course do not alter the meaning of a constitutional or
statutory provision but they certainly help to fix its meaning. With these
prefatory observations I shall now proceed to consider the question of
constitutional validity of death penalty.
230. I shall presently refer to the constitutional provisions which bear on
the question of constitutionality of death penalty, but before I do so, it would
be more logical if I first examine what is the international trend of opinion in
regard to death penalty. There are quite a large number of countries which have
abolished death penalty de jure or in any event, de facto The Addendum to the
Report of the Amnesty International on "The Death Penalty" points out that as on
30th May 1979, the following countries have abolished death penalty for all
offences : Australia, Brazil, Colombia, Costa Rica, Denmark, Dominican Republic,
Ecuador, Fiji, Finland, Federal Republic of Germany, Honduras, Iceland,
Luxembourg, Norway, Portugal, Sweden, Uruguay and Venezuela, and according to
this Report, Canada, Italy, Malta, Netherlands, Panama, Peru, Spain and
Switzerland have abolished death penalty in time of peace, but retained it for
specific offences committed in time of war. The Report also states that Algeria,
Belgium, Greece, Guyana, Ivory Coast, Seychelles and Upper Volta have retained
the death penalty on their statute book but they did not conduct any executions
for the period from 1973 to 30th May l979. 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.
231. 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 individual'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 :
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 (XXI)
of 16 December 1966 provided as follows :
1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance with the law
in force at the time of the commission of the crime and not contrary to the
provisions of the present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be carried out
pursuant to a final judgment rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is
understood, that nothing in this article shall authorise any State Party to the
present Covenant to derogate in any way from any obligation 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.
232. So deep and profound was the United Nation's concern with the issue of
death penalty that the General Assembly in its resolution 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 demonstrated" This view had been
expressed not only by abolitionists countries in their replies to the
questionaires but also by some retentionist countries. The Ancel report
alongwith the Report of the ad hoc Advisory Committee of Experts on the
Prevention of Crime and the Treatment of Offenders which examined it in January
1963 was presented to the Economic and Social Council at its 35th Session when
its Resolution 934 (XXXV) of 9th April 1963 was adopted. By this Resolution the
Economic and Social Council urged member governments inter alia to keep under
review the efficacy of capital punishment as a deterrent to crime in their
countries and to conduct research into the subject and to remove this punishment
from the criminal law concerning any crime to which it is, in fact, not applied
or to which there is no intention to apply it. This Resolution clearly shows
that there was no evidence supporting the supposed deterrent effect of the death
penalty and that is why the Economic and Social Council suggested further
research on the topic. Moreover, the urging of the de facto abolitionist
countries by this Resolution to translate the position into de jure terms
constituted an implicit acceptance of the principle of abolition. The same year,
by Resolution 1918 (XVIII) of 5th December 1963, the General Assembly endorsed
this action of the Economic and Social Council and requested the Economic and
Social Council to invite the Commission on Human Rights to study and make
recommendations on the Ancel Report and the comments of the ad hoc Advisory
Committee of Experts. The General Assembly also requested the Secretary General
to present a report on new developments through the Economic and Social Council.
Norval Morris, an American professor of criminal law and criminology,
accordingly prepared a Report, entitled "Capital Punishment; Developments
1961-1965" and amongst other things, this Report pointed out that there was a
steady movement towards legislative abolition of capital punishment and observed
with regard to the deterrent effect of death penalty, that:
With respect to the influence of the abolition of capital punishment upon
the incidence of murder, all of the available data suggest that where the murder
rate is increasing, abolition does not appear to hasten the increase where the
rate is decreasing abolition does not appear to interrupt the decrease; where
the rate is stable, the presence or absence of capital punishment does not
appear to affect it.
The Commission on Human Rights considered this Report and adopted a draft
General Assembly Resolution which was submitted by the Economic and Social
Council to the General Assembly and on 26th November 1968, the General Assembly
adopted this draft with certain modifications as its Resolution 2393 (XXIII)
inviting member governments to take various measures and requesting the
Secretary General to invite member governments "to inform him of their present
attitude to possible further restricting the use of the death penalty or to its
total abolition" and to submit a report to the Economic and Social Council. The
Secretary General accordingly submitted his report to th'e 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.
(Emphasis supplied)
233. 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.
234. 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.
235. 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 center 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.
236. 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 Fundamental 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.
237. There are three Fundamental Rights in the Constitution which are of
prime importance and which breathe vitality in the concept of the rule of law.
They are Articles 14, 19 and 21 which, in the words of Chandrachud, C.J. in
Minverva Mills case [1979] 3 SCR 1014 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 subsidiar y 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.
238. 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. Yef 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 new form of property consisting of
government largesse in the shape of jobs, contracts 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.
239. 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.
240. It can, therefore, now be taken to be well-settled that if a law is
arbitrary or irrational, it would fall foul of Article 14 and would be liable to
be struck down as invalid. Now a law may contravene Article 14 because it enacts
provisions which are arbitrary; as for example, they make discriminatory
classification which is not founded on intelligible differentia having rational
relation to the object sought to be achieved by the law or they arbitrarily
select persons or things for discriminatory treatment. But there is also another
category of cases where without enactment of specific provisions which are
arbitrary, a law may still offend Article 14 because it confers discretion on an
authority to select persons or things for application of the law without laying
down any policy or principle to guide the exercise of such discretion. Where
such unguided and unstructured discretion is conferred on an authority, the law
would be violative of Article 14 because it would enable the authority to
exercise such discretion arbitrarily and thus discriminate without reason.
Unfettered and uncharted discretion conferred on any authority, even if it be
the judiciary, throws the door open for arbitrariness, for after all a judge
does not cease to be a human being subject to human limitations when he puts on
the judicial robe and the nature of the judicial process being what it is, it
cannot be entirely free from judicial subjectivism. Cardozo, J. has frankly
pointed this out in his lectures on "Nature of the Judicial Process" ;
There has been a certain lack of candor in much of the discussion of the
theme, or rather perhaps in the refusal to discuss it, as if judges must lose
respect and confidence by the reminder that they are subject to human
limitations... if there is anything of reality in my analysis of the judicial
process, they do not stand aloof on these chill and distant heights; and we
shall not help the cause of truth by acting and speaking as if they do. The
great tides and currents which engulf the rest of men do not turn aside in their
course and pass the judges by.
This facet of the judicial process has also been emphasized by Richard B.
Brandt in his book on "Judicial Discretion" where he has said :
Much of law is designed to avoid the necessity for the judge to reach what
Holmes called his 'can't helps', his ultimate convictions or values. The force
of precedent, the close applicability of statute law, the separation of powers,
legal presumptions, statutes of limitations, rules of pleading and evidence, and
above all the pragmatic assessments of fact that point to one result whichever
ultimate values be assumed, all enable the judge in most cases to stop short of
a resort to his personal standards. When these prove unavailing, as is more
likely in the case of courts of last resort at the frontiers of the law, and
most likely in a supreme constitutional court, the judge necessarily resorts to
his own scheme of values. It may, therefore, be said that the most important
thing about a judge is his philosophy; and if it be dangerous for him to have
one, it is at all events less dangerous than the self-deception of having none.
That is why Lord Camden described the discretion of a judge to be "the law of
tyrants; it is always unknown; it is different in different men; it is casual
and depends on Constitution, Tamper, and Passion. In the best it is often times
Caprice, in the worst it is every Vice, Folly and Passion to which human Nature
is liable." Doe d. Hindson v. Kersey (1765) at p. 53 of the pamphlet published
in London by J. Wilkes in 1971 entitled "Lord Camden's Genuine Argument in
giving Judgment on the Ejectment between Hindson, and others against Kersey".
Megarry J. also points out in his delightful book "Miscellany at Law" that
"discretion is indeed a poor substitute for principles, however, great the
Judge". Therefore, where discretion is conferred on an authority by a statute,
the court always strains to find in the statute the policy or principle laid
down by the legislature for the purpose of guiding the exercise of such
discretion and, as pointed out by Subba Rao, J. as he then was, the court
sometimes even tries to discover the policy or principle in the crevices of the
statute in order to save the law from the challenge of Article 14 which would
inevitably result in striking down of the law if the discretion conferred were
unguided and unfettered. But where after the utmost effort and intense search,
no policy or principle to guide the exercise of discretion can be found, the
discretion conferred by the law would be unguided and unstructured, like a
tumultuous river overflowing its banks and that would render the law open to
attack on ground of arbitrariness under Article 14.
241. 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.
242. 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 [1950] SCR 88 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 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.
243. 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 CrPC is constitutionally
valid. Now one thing is certain 11 at 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. 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 a
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.
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.
244. 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 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 CrPC.
245. 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.
"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 CrPC 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 center of gravity from life
taking to life sentence." Sub-section (5) of Section 367 of the CrPC 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 sentence 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 CrPC 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.
246. It is also interesting to note that a further legislative attempt
towards restricting and rationalising death penalty was made in the late
seventies* A Bill called Indian Penal Code (Amendment) Bill 1972 for amending
Section 302 was passed by the Rajya Sabha in 1978 and it was pending in the Lok
Sabha at the time when Rajendra Prasad's case was decided and though it
ultimately lapsed with the dissolution of the Lok Sabha, it shows how strongly
were the minds of the elected representatives of the people agitated against
"homicidal exercise of discretion" which is often an "obsession with retributive
justice in disguise". This Bill sought to narrow drastically the judicial
discretion to impose death penalty and tried to formulate the guidelines which
should control the exercise of judicial exercise in this punitive area. But
unfortunately the Bill though passed by the Rajya Sabha could not see its way
through the Lok Sabha and was not enacted into law. Otherwise perhaps the charge
against the present section of 302 of the Indian Penal Code read with Section
354 Sub-section (3) of the Code of criminal Procedure that it does not indicate
any policy or principle to guide the exercise of judicial discretion in awarding
death penalty, would have-been considerably diluted, though even then, I doubt
very much whether that section could have survived the attack against its
constitutionally on the ground that it still leaves the door open for arbitrary
exercise of discretion in imposing death penalty.
247. 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.
248. Andrei Sakharov in a message to the Stockholm Conference on Abolition of
death Penalty organised by Amnesty International in 1978 expressed himself
firmly against death penalty :
I regard the death penalty as a savage and immoral institution which
undermines the moral and legal foundations of a society. A state, in the person
of its functionaries who like all people are inclined to making superficial
conclusions, who like all people are subject to influence, connections,
prejudices and egocentric motivations for their behaviour, takes upon itself the
right to the most terrible and irreversible act-the deprivation of life. Such a
State cannot expect an improvement of the moral atmosphere in its country. I
reject the notion that the death penalty has any essential deterrent effect on
potential offenders. I am convinced that the contrary is true-that savagery
begets only savagery...I am convinced that society as a whole and each of its
members individually, not just the person who comes before the courts, bears a
responsibility for the occurrence of a crime. I believe that the death penalty
has no moral or practical justification and represents a survival of barbaric
customs of revenge. Blood thirsty and calculated revenge with no temporary
insanity on the part of the judges, and therefore, shameful and disgusting.
(emphasis added)
Tolstoy also protested against death sentence in an article "I Cannot be
Silent" :
Twelve of those by whose labour we live, the very men whom we have depraved
and are still depraving by every means in our power-from the poison of vodka to
the terrible falsehood of a creed we impose on them with all our might, but do
not ourselves believe in-twelve of those men strangled with cords by those whom
we feed and clothe and house, and who have depraved and still continue to
deprave them. Twelve husbands, fathers, and sons, from among those upon whose
kindness, industry and simplicity alone rests the whole of Russian life, are
seized, imprisoned, and shackled. Then their hands are tied behind their backs
lest they should seize the ropes by which they are to be hung, and they are led
to the gallows.
So also said Victor Hugo in the spirit of the Bishop created by him in his
'Les Miserables' :
We shall look upon crime as a disease. Evil will be treated in charity
instead of anger. The change will be simple and sublime. The cross shall
displace the scaffold, reason is on our side, feeling is on our side, and
experience is on our side.
Mahatma Gandhi also wrote to the same effect in his simple but inimitable
style :
Destruction of individuals can never be a virtuous act. The evil doers
cannot be done to death. Today there is a movement afoot for the abolition of
capital punishment and attempts are being made to convert prisons into hospitals
as if they are persons suffering from a disease.
This Gandhian concept was translated into action with commendable success in
the case of Chambal dacoits who laid down their arms in response to the call of
Vinobha Bhave and Jaiprakash Narayan. See "Crime and Non-violence" by Vasant
Nargolkar. There is also the recent instance of surrender of Malkhan Singh, a
notorious dacoit of Madhya Pradesh. Have these dacoits not been reformed ? Have
they not been redeemed and saved ? What social purpose would have been served by
killing them ?
249 I may also at this stage make a few observations in regard to the
barbarity and cruelty of death penalty, for the problem of constitutional
validity of death penalty cannot be appreciated in its proper perspective
without an adequate understanding of the true nature of death penalty and what
it involves in terms of human anguish and suffering. In the first place, death
penalty is irrevocable; it cannot be recalled. It extinguishes the flame of life
for ever and is plainly destructive of the right to life, the most precious
right of all, a right without which enjoyment of no other rights is possible. It
silences for ever a living being and despatches him to that 'undiscovered
country from whose bourn no traveller returns' nor once executed, 'can stored
urn or animated bust back to its mansion call the fleeting breath'. It is by
reason of its cold and cruel finality that death penalty is qualitatively
different from all other forms of punishment. If a person is sentenced to
imprisonment, even if it be for life, and subsequently it is found that he was
innocent and was wrongly convicted, he can be set free. Of course the
imprisonment that he has suffered till then cannot be undone and the time he has
Spent in the prison cannot be given back to him in specie but he can come back
and be restored to normal life with his honour vindicated if he is found
innocent. But that is not possible where a person has been wrongly 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. 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."
250. It is argued on behalf of the retentionists that having regard to the
elaborate procedural safeguards enacted by the law in cases involving capital
punishment, the possibility of mistake is more imaginary than real and these
procedural safeguards virtually make conviction of an innocent person
impossible. But I do not think this argument is well founded. It is not
supported by factual data. Hugo Bedau in his well known book, "The Death Penalty
in America" has individually documented seventy four cases since 1893 in which
it has been responsibly charged and in most of them proved beyond doubt, that
persons were wrongly convicted of criminal homicide in America. Eight out of
these seventy four, though innocent, were executed. Redin, Gardener, Frank and
others have specifically identified many more additional cases. These are cases
in which it has been possible to show from discovery of subsequent facts that
the convictions were erroneous and innocent persons were put to death, but there
may be many more cases where by reason of the difficulty of uncovering the facts
after conviction, let alone after execution, it may not be possible to establish
that there was miscarriage of justice. The jurist Olivecroix, applying a
calculus of probabilities to the chance of judicial error, concluded as far back
as in 1860 that approximately one innocent man was condemned out of every 257
cases. The proportion seems low but only in relation to moderate punishment. In
relation to capital punishment, the proportion is infinitivelly high. When Hugo
wrote that he preferred to call the guillotine Lesurques (the name of an
innocent man guillotined in the Carrier de Lyon case) he did not mean that every
man who was decapitated was a Lesurques, but that one Lesurques was enough to
wipe out the value of capital punishment for ever. It is interesting to note
that where cases of wrongful execution have come to public attention, they have
been a major force responsible for bringing about abolition of death penalty.
The Evans case in England in which an innocent man was hanged in 1949 played a
large role in the abolition of capital punishment in that country. Belgium also
abjured capital punishment on account of one such judicial error and so did
Wisconsin, Rhode Island and Maine in the United States of America.
251. 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.
252. 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 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.
253. 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 al stress in which the condemned prisoner's personality
is incredibly brutalised." He points out that "the strain of existence on Death
Row is very likely to produce...acute psychotic breaks." Vide the article of
"West on Medicine and Capital Punishment." Some inmates are driven to ravings or
delusions but the majority sink into a sort of catatonic numbness under the
over-whelming stress." Vide "The Case against Capital Punishment" by the
Washington Research Project. Intense mental suffering is inevitably associated
with confinement under sentence of death. Anticipation of approaching death can
and does produce stark terror. Vide article on "Mental Suffering under Sentence
of Death". 57 Iowa Law Review 814. Justice Brennan in his opinion in Furman v.
Georgia 408 US 238 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.
254. In Re Kemmler 136 US 436 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 134 US 160 that "when a prisoner sentenced by a court
to death is confined to the 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.'
255. But quite apart from this excruciating mental anguish and severe
psychological strain which the condemned prisoner has to undergo on account of
the long wait from the date when the sentence of death is initially passed by
the sessions court until it is confirmed by the High Court and then the appeal
against the death sentence is disposed of by the Supreme Court and if the appeal
is dismissed, then until the clemency petition is considered by the Pesident and
if it is turned down, then until the time appointed for actual execution of the
sentence of death arrives, the worst time for most of the condemned prisoners
would be the last few hours when all certainty is gone and the moment of death
is known. Dostoyevsky who actually faced a firing squad only to be reprieved at
the last instant, described this experience in the following words :
...the chief and the worst pain is perhaps not inflicted by wounds, but by
your certain knowledge that in an hour, in ten minutes, in half a minute, now
this moment your soul will fly out of your body, and that you will be a human
being no longer, and that that's certain the main thing is that it is certain
..Take a soldier and put him in front of a cannon in battle and fire at him and
he will still hope, but read the same soldier his death sentence for certain,
and he will go mad or burst out crying. Who says that human nature is capable of
bearing this without madness ? Why this cruel, hideous, unnecessary and useless
mockery ? Possibly there are men who have sentences of death read out to them
and have been given time to go through this torture, and have then been told,
You can go now, you've been reprieved. Such men could perhaps tell us. It was of
agony like this and of such horror that Christ spoke. No you can't treat a man
like that.
We have also accounts of execution of several prisoners in the United States
which show how in these last moment condemned prisoners often simply
disintegrate. Canns has in frank and brutal language bared the terrible
psychological cruelty of capital punishment :
Execution is not simply death. It is just as different in essence, from the
privation of life as a concentration camp is from prison....It adds to death a
rule, a public premeditation known to the future victim, an organisation, in
short, which is in itself a source of moral sufferings more terrible than
death...For there to be equivalence, the death penalty would have to punish a
criminal who had warned his victim of the date at which he would inflict a
horrible death on him and who, from that moment, onward, had confined him at his
mercy for months. Such a monster is not encountered in private life.
There can be no stronger words to describe the utter depravity and inhumanity
of death, sentence..
256. 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,Vide : David Pannick on "Judicial Review of Death Penalty,
page 73 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 prison in the United States of America, describes
the hanging process with brutal frankness in lurid details :
The day before an execution the prisoner goes through a harrowing
experience of being weighed, measured for length of drop to assure breaking of
the neck, the size of the neck, body measurement et cetera. When the trap
springs he dangles at the end of the rope. There are times when the neck has not
been broken and the prisoner strangles to death. His eyes pop almost out of his
head, his tongue swells and protrudes from his mouth, his neck - may be broken,
and the rope many times takes large portions of skin and flesh from the side of
the face and that the noose is on. He urinates, he defecates, and droppings fall
to the floor while witnesses look on, and at almost all executions one or more
faint or have to be helped out of the witness room. The prisoner remains
dangling from the end of the rope for from 8 to 14 minutes before the doctor,
who has climbed up a small ladder and listens to his heart beat with a
stethoscope, pronounces him dead. A prison guard stands at the feet of the
hanged person and holds the body steady, because during the first few minutes
there is usually considerables struggling in an effort to breathe.
If the drop is too short, there will be a slow and agonising death by
strangulation On the other hand, if the drop is too long, the head will be torn
off. In England centuries of practice have produced a detailed chart relating a
man's weight and physical condition to the proper length of drop, but even there
mistakes have been made. In 1927, a surgeon who witnessed a double execution
wrote :
The bodies were cut down after fifteen minutes and placed in an
antechamber, when I was horrified to hear one of the supposed corpses give a
gasp and find him making respiratory efforts, evidently a prelude to revival.
The two bodies were quickly suspended again for a quarter of an hour
longer...Dislocation of the neck is the ideal aimed at, but, out of all my post-
mortem findings, that has proved rather an exception, which in the majority of
instances the cause of death was strangulation and asphyxin.
These passages clearly establish beyond doubt that the execution of sentence
of death by hanging does involve intense physical pain and suffering, though it
may be regarded by some as more humane than electrocution or application of
lethal gas.
257. 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.
258. 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 CrPC 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 CrPC 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 argument
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.
259. 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 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 . But
contended the respondents, a contrary tread 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 where Krishna Iyer, J. speaking on behalf
of himself and Beg, J. as he then was, recalled the following statement of the
law from the Judgment of this Court in Ram Krishna Dalmia v. S.R. Tendolkar and
Ors., [1959] SCR 297 :
there is always a presumption in favour of the constitutionality of an
enactment and the burden is upon him who attacks it to show that there has been
a clear transgression of the constitutional principles."
and
"that it must be presumed that the legislature understands and correctly
appreciates the need of its own people, that its laws are directed to problems
made manifest by experience and that its discriminations are based on adequate
grounds.
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 [1957] SCR 874 the
learned Judge again emphasized :
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.
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 (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).
260. The respondents also relied on the observations of Fazal Ali, J. in
Pathumma v. State of Kerala 2 SCR 537. 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 State of
Bihar [19591 S.C.R. 629.
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 S.R. Das, C.J. in
Mohd. Hanif's case (supra) relied upon by Fazal AH, 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 Sub-clauses (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 sub-clause of Clause (1) of Article 19 and the restrictions
are shown to exist by the petitioner, the burden of establishing that the
restrictions fall within any of the permissive Clauses (2) to (6) which may be
applicable, must rest upon the State. The State would have to produce material
for satisfying the court that the restrictions imposed by the impugned law fall
within the appropriate permissive clause from out of Clauses (2) to (6) of
Article 19. Of course there may be cases where the nature of the legislation and
the restrictions imposed by it may be such that the court may, without more,
even in the absence of any positive material produced by the State, conclude
that the restrictions fall within the permissible category, as for example,
where a law is enacted by the legislature for giving effect to one of the
Directive Principles of State Policy and prima facie, the restrictions imposed
by it do not appear to be arbitrary or excessive. Where such is the position,
the burden would again shift and it would be for the petitioner to show that the
restrictions are arbitrary or excessive and go beyond what is required in public
interest. But, once it is shown by the petitioner that the impugned law imposes
restrictions which infringe one or the other sub-clause of Clause (1) of Article
19, the burden of showing that such restrictions are reasonable and fall within
the permissible category must be on the State and this burden the State may
discharge either by producing socio economic data before the court or on
consideration of the provisions in the impugned law read in the light of the
constitutional goals set out in the Directive Principles of State Policy. The
test to be applied for the purpose of determining whether the restrictions
imposed by the impugned law are reasonable or not cannot be cast in a rigid
formula of universal application, for, as pointed out by Patanjali Shastri, J.
in State of Madras v. V.J. Row [1952] SCR 597 "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.
261. Before I proceed to consider the question of burden of proof in case of
challenge under Article 14, it would be convenient first to 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 right 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 trie 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 sho wn by the court for personal liberty, how much more should be
the judicial anxiety and concern for the right to life which indisputably stands
on a higher pedestal. Moreover, as already pointed out above, the international
standard or norm set by the United Nations is in favour of abolition of death
penalty and that is the ultimate objective towards which the world body is
moving. The trend of our national legislation is also towards abolition and it
is only in exceptional cases for special reasons that death sentence is
permitted to be given. There can be no doubt that even under our national
legislation death penalty is looked upon with great disfavour. The drastic
nature of death penalty involving as it does the possibility of error resulting
in judicial murder of an innocent man as also its brutality in inflicting
excruciating mental anguish severe psychological strain and agonising physical
pain and suffering on the condemned prisoner are strong circumstances which must
compel the State to justify imposition of death penalty. The burden must lie
upon the State show that death penalty is not arbitrary and unreasonable and
serves a legitimate social purpose, despite the possibility of judicial error in
convicting and sentencing an innocent man and the brutality and pain, mental as
well as physical, which death sentence invariably inflicts upon the condemned
prisoner. The State must place the necessary material on record for the purpose
of discharging this burden which lies upon it and if it fails to show by
presenting adequate evidence before the Court or otherwise that death penalty is
not arbitrary and unreasonable and does serve a legitimate social purpose, the
imposition of death penalty under Section 302 of the Indian Penal Code read with
Section 354 Sub-section (3) of the CrPC would have to be struck down as
violative of the protection of Article 21.
262. 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 constitutionality "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
substantial 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 ove the world that judges are not descusitized and
passionless instruments which weigh on inanimate and impartial scales of legal
judgment, the evidence and the arguments presented on each side, of the case.
They are not political and moral enuchs able and willing to avoid impregnating
the law with their own ideas and judgment. The judicial exercise in
constitutional adjudication is bound to be influenced, consciously or
subconsciouly, by the social philosophy and scale of values of those who sit in
judgment. However, I agree with Sarkaria, J. that ordinarily the judicial
function must be characterised by deference to legislative judgment because the
legislature represents the voice of the people and it might be dangerous for the
court to trespass into the sphere demarcated by the Constitution for the
legislature unless the legislative judgment suffers from a constitutional
infirmity. It is a trite saying that the Court has "neither force nor will but
merely judgment" and in the exercise of this judgment, it would be a wise rule
to adopt to presume the constitutionality of a statute unless it is shown to be
invalid. But even here it is necessary to point out that this rule is not a
rigid inexorable rule applicable at all times and in all situations. There may
conceivably be cases where having regard to the nature and character of the
legislation, the importance of the right affected and the gravity the injury
caused by it and the moral and social issues involved in the determination, the
court may refuse to proceed on the basis of presumption of constitutionality and
demand from the State justification of the legislation with a view to
establishing that it is not arbitrary or discriminatory. There are times when
commitment to the values of the Constitution and performance of the
constitutional role as guardian of fundamental rights demands dismissal of the
usual judicial deference to legislative judgment. The death penalty, of which
the constitutionality is assailed in the present writ petitions, is a
fundamental issue to which ordinary standards of judicial review are
inappropriate. The question here is one of the most fundamental which has arisen
under the Constitution, namely, whether the State is entitled to take the life
of a citizen under cover of judicial authority. It is a question so vital to the
identity and culture of the society and so appropriate for judicial statement of
the standards of a civilised community often because of legislative apathy-that.
"passivity and activism become platitudes through which judicial articulation of
moral and social values provides a light to guide an uncertain community." The
same reasons which have weighed with me in holding that the burden must lie on
the State to prove that the death penalty provided under Section 302 of the
Indian Penal Code read with Section 354 Sub-section (3) of the CrPC is not
arbitrary and unreasonable and serves a legitimate penological purpose where the
challenge is under Article 21 must apply equally to cast the burden of the proof
upon the State where the challenge is under Article 14.
263. 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.
264. The Courts in the United States have also recognised the validity of the
proportionality principle. In Gregg v. Goergia 428 US 153. 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 433 US 584 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 438 US 586 where the defendant sat outside the scene of robbery
waiting to drive hei accomplices away and contrary to plan, the robbers murdered
three Victims in the course of their robbery and she was convicted and sentenced
to death by resort to the doctrine of vicarious liability, the Supreme Court of
the United States applying the same principle of proportionality held the death
sentence unconstitutional. Marshall, J. pointed out that because the appellant
was convicted under a theory of vicarious liability, the death penalty imposed
on her "violates the principle of proportionality embodied in the Eighth
Amendment's prohibition" and White J. also subscribed to thc 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 proportionality 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 70 DLR (3d) 324 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 CJ. 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
Section 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 Section 2(b) but
I doubt whether a more precise one can be found." Similarly, as pointed out by
Mr. David Pannick in his book on "Judicial Review of the Death Penalty"
international charters of rights express or imply the principle of
proportionality. Article 7 of the International Covenant on Civil and Political
Rights forbids torture and cruel inhuman or degrading treatment or punishment
and so does Article 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.
265. 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 not a 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 2 E.H.R.R.I. (1978) 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 whic are contrary to Article 3, whatever their deterrent effect may
be." The utilitarian value of the punishment has nothing to do with its
proportionality to the offence. It would therefore be no answer in the present
case for the respondents to say that death penalty has a unique deterrent effect
in preventing the crime of murder and therefore it is proportionate to the
offence. The proportionality between the offence and death penalty has to be
judged by reference to objective factors such as international standards or
norms or the climate of international opinion, modern penological theories and
evolving standards of human decency. I have already pointed out and I need not
repeat that the international standard or norm which is being evolved by the
United Nations is against death penalty and so is the climate of opinion in most
of the civilized countries of the world. I will presently show that penological
goals also do not justify the imposition of death penalty for the offence of
murder. The prevailing standards of human decency are also incompatible with
death penalty. The standards of human decency with reference to which the
proportionality of the punishment to the offence is required to be judged vary
from society to society depending on the cultural and spiritual tradition of the
society, its history and philosophy and its sense of moral and ethical values.
To take an example, if a sentence of cutting off the arm for the offence of
theft or a sentence of stoning to death for the offence of adultery were
prescribed by law, there can be no doubt that such punishment would be condemned
as barbaric and cruel in our country, even though it may be regarded as
proportionate to the offence and hence reasonable and just in some other
countries. So also the standards of human decency vary from time to time even
within the same society. In an evolutionary society, the standards of human
decency are progressively evolving to higher levels and what was regarded as
legitimate and reasonable punishment proportionate to the offence at one time
may now according to the envolving standards of human decency, be regarded as
barbaric and inhuman punishment wholly disproportionate to the offence. There
was a time when in the United Kingdom a sentence of death for the offence of
theft or shop lifting was regarded as proportionate to the offence and
therefore/ quite legitimate and reasonable according to the standards of human
decency then prevailing, but today such punishment would be regarded as totally
disproportionate to the offence and hence arbitrary and unreasonable. The
question, therefore, is whether having regard to the international standard or
norm set by the United Nations in favour of abolition of death penalty, the
climate of opinion against death penalty in many civilized countries of the
world and the prevailing standards of human decency, a sentence of death for the
offence of murder can be regarded as satisfying the test of proportionality and
hence reasonable and just. I may make it clear that the question to which I am
addressing myself is only in regard to the proportionality of death sentence to
the offence of murder and nothing that I say here may be taken as an expression
of opinion on the question whether a sentence of death can be said to be
proportionate to the offence of treason or any other offence involving the
security of the State.
266. 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 Rajendra 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 personality 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 alongwith basic human
dignity is highly prized and cherished and torture and cruel or inhuman
treatment or punishment which would be degrading and destructive of human
dignity are constitutionally forbidden. Moreover, apart from the humanistic
quintessence of the Constitution, the thoughts, deeds and words of the great men
of this country provide the clearest indication of the prevailing standards of
human decency. They represent the conscience of the nation and are the most
authentic spokesmen of its culture and ethos. Mahatma Gandhi, the Father of the
Nation wrote long ago in the Harijan. "God alone can take life because He alone
gives it. He also said and this I may be permitted to emphasize even at the cost
of repetition : "Destruction of individuals can never be a virtuous act. The
evil doers cannot be done to death...Therefore all crimes including murder will
have to be treated as a disease." I have also quoted above what Jai Prakash
Narain said in his message to the Delhi Conference against Death Penalty. The
same humanistic approach we find in the utterances of Vinoba Bhave. His approach
to the problem of dacoits in Chambal Valley and the manner in which he brought
about their surrender through soulforce bear eloquent testimony to the futility
of death penalty and shows how even dacoits who have committed countless murders
can be reclaimed by the society. But, the more important point is that this
action of Vinoba Bhave was applauded by the whole nation and Dr. Rajendra Prasad
who was then the President of India, sent the following telegram to Vinoba 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. 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 CrPC
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 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 Parasurama. He might have been an angelic boy but thrown into
mafia company or inducted into dopes and drugs by parental neglect or morally-
mentally retarded or disordered. Imagine a harijan village hacked out of
existence by the genocidal fury of a kulak group and one survivor, days later,
cutting to pieces the villain of the earlier outrage. Is the court in error in
reckoning the prior provocative barbarity as a sentencing factor?
Another facet. May be, the convict's poverty had disabled his presentation
of the social milieu or other circumstances of extenuation in defence....When
life is at stake, can such frolics of fortune play with judicial verdicts ?
The nature of the crime-too terrible to contemplate has often been regarded
a traditional peg on which to hang a death penalty. Even Ediga Anamma (supra)
has hardened here. But 'murder most foul' is not the test, speaking
scientifically. The doer may be a patriot, a revolutionary, a weak victim of an
overpowering passion who, given better environment, may be a good citizen, a
good administrator, a good husband, a great saint. What was Valmiki once ? And
that sublime spiritual star, Shri Aurobindo tried once for murder but by
history's fortune acquitted.
267. 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.
268. I will now examine whether death penalty for the offence of murder
serves any legitimate social purpose. There are three justifications 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.
269. 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 Jea n Valjean of Les Miserbles not reformed by the kindness and magnanimity
of the Bishop ? Was Valmiki a sinner not reformed and did he not become the
author of one of the world's greatest epics ? Were the dacoits of Chambal not
transformed by the saintliness of Vinoba Bhave and Jai Prakash Narain ? We have
also the examples of Nathan Leopold, Paul Crump and Edger Smith who were guilty
of the most terrible and gruesome murders but who, having escaped the gallows,
became decent and productive human beings. These and many other examples clearly
show that it is not possible to know before hand with any degree of certainty
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,
(sic) 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 Brahman; 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 experience 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
Prctsad's case, that death penalty may be legally permissible where it is found
that a killer is such a monster or beast that he can never be reformed.
Moreover, it may be noted, as pointed out by Albert Camus, that in resorting to
this philosophy of elimination of social monsters, we would be approaching some
of the worst ideas of totalitarianism or the selective racism which the Hitler
regime propounded. Sir Ernest Gowers, Chairman of the Royal Commission on
Capital Punishment also emphasized the disturbing implications of this argument
favouring elimination of a killer who is a social monster and uttered the
following warning "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 are 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.
270. 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 extent 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 be held to be reasonable. This argument is founded
on the denunciatory theory of punishment which apparently claiming to justify
punishment, as the expression of the moral indignation of the society against
the wrong doer, represents in truth and reality an attempt to legitimise the
feeling of revenge entertained by the society against him. The denunciatory
theory was put forward as an argument in favour of death penalty by Lord Denning
before the Royal Commission on Capital Punishment:
The punishment inflicted for grave crimes should adequately reflect the
revulsion felt by the great majority of citizens for them. It is a mistake to
consider the objects of punishment as being deterrent or reformative or
preventive and nothing else. The ultimate justification of any punishment is not
that it is a deterrent but that it is the emphatic denunciation by the community
of a crime, and from this point of view there are some murders which in the
present state of opinion demand the most emphatic denunciation of all, namely,
the death penalty...The truth is that some crimes are so outrageous that it,
irrespective of whether it is a deterrent or not.
The Royal Commission on Capital Punishment seemed to agree with Lord
Denning's view about this justification for the death penalty and
observed."...the law cannot ignore the public demand for retribution which
heinous crimes undoubtedly provoke; it would be generally agreed that, though
reform of the criminal law ought sometimes, to give a lead to public opinion, it
is dangerous to move too far in advance of it." Though garbed in highly
euphemistic language by labelling the sentiment underlying this observation as
reprobation and not revenge, its implication can hardly be disguised that the
death penalty is considered necessary not because the preservation of the
society demands it, but because the society wishes to avenge itself for the
wrong done to it. Despite its high moral tone and phrase, the denunciatory
theory is nothing but an echo of what Stephen said in rather strong language:
"The criminal law stands to the passion of revenge in much the same relation as
marriage to the sexual appetite." The denunciatory theory is a remnant of a
primitive society which has no respect for the dignity of man and the worth of
the human person and seeks to assuage its injured conscience by taking revenge
on the wrong doer. Revenge is an elementary passion of a brute and betrays lack
of culture and refinement. The manner in which a society treats crime and
criminals affords the surest index of its cultural growth and development. Long
ago in the year 1910 Sir Winston Churchill gave expression to this social truth
when he said in his inimitable language:
The mood and temper of the public with regard to the treatment of crime and
the criminals is one of the most unfailing tests of civilization of any country.
A calm dispassionate recognition of the right of accused, and even of the
convicted, criminal against the State, a constant heart searching by all charged
with the duty of punishment...tireless efforts towards the discovery of curative
and regenerative processes, unfailing faith that there is a treasure if you can
only find it in the heart of every man-these are the symbols, which, in
treatment of crime and the criminals, mark and measure the stored-up strength of
a nation and are sign and proof of the living virtue in it.
A society which is truly cultured-a society which is reared on a spiritual
foundation like the Indian society-can never harbour a feeling of revenge
against a wrong doer. On the contrary, it would 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 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 overpower "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 long 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 constitutional
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 makind, which recognises the divinity in man and
describes his kind as (sic) 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 rightousness.
271. 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 N.Y. 2dd. 152:
The punishment or treatment of offenders is directed toward one or more of
three ends : (1) to discourage and act as a deterrent upon future criminal
activity. (2) to confine the offender so that he may not harm society; and (3)
to correct and rehabilitate the offender. There is no place in the scheme for
punishment for its own sake, the product simply of vengeance or retribution.
Similarly, the California Supreme Court has held that "to conclude that the
Legislature was motivated by a desire for vengeance" would be "a conclusion not
permitted in view of modern theories of penology."
272. 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."
273. 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.
274. The Prime Minister of Canada Mr. Pierre Trudeaux, addressing the
Canadian Parliament, pleading for abolition of death penalty, posed a question
in the same strain :
Are we as a society so lacking in respect for ourselves, so lacking in hope
for human betterment, so socially bankrupt that we are ready to accept state
vengeance as our penal philosophy.
It is difficult to appreciate how a feeling of vengeance whether on the
individual wronged or the society can ever be regarded as a healthy sentiment
which the State should foster. It is true that when a heinous offence is
committed not only the individual who suffers as a result of the crime but the
entire society is oppressed with a feeling of revulsion, but as Arthur Koestler
has put it in his inimitable style in his "Reflections on Hanging" :
Though easy to dismiss in reasoned argument on both moral and logical
grounds, the desire for vengeance has deep, unconscious roots and is roused when
we feel strong indignation or revulsion-whether the reasoning mind approves or
not. This psychological fact is largely ignored in abolitionist propaganda-yet
it has to be accepted as a fact. The admission that even confirmed abolitionists
are not proof against occasional vindictive impulses does not mean that such
impulses should be legally sanctioned by society, any more than we sanction some
other unpalatable instincts of our biological inheritance. Deep inside every
civilized being there lurks a tiny Stone Age man, dangling a club to robe and
rape, and screaming an eye for an eye. But we would rather not have that little
fur-clad figure dictate the law of the land.
I have no doubt in my mind that if the only justification for the death
penalty is to be found in revenge and retaliation, it would be clearly arbitrary
and unreasonable punishment falling foul of Articles 14 and 21.
275. I must then turn to consider the deterrent effect of death penalty, for
deterrence is undoubtedly an important goal of punishment.
276. 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 attributing to it a deterrent effect. The question
whether the death penalty has really and truly a deterrent effect is an
important issue which has received careful attention over the last 40 years in
several countries including the United States of America. Probably no single
subject in criminology has been studied more. Obviously, no penalty will deter
all murders and probably any severe penalty will deter many. The key question
therefore is not whether death penalty has a deterrent effect but whether death
penalty has a greater deterrent effect than life sentence. Does death penalty
deter potential murderers better, than life imprisonment ? I shall presently
consider this question but before I do so let me repeat that the burden of
showing that death penalty is not arbitrary and unreasonable and serves a
legitimate penological goal is on the State. I have already given my reasons for
taking this view on principle but I find that the same view has also been taken
by the Supreme Judicial Court of Massachusettes in "Commonwealth v. O'Neal (No.
2) 339 NE 2d. 676 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 that
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.
277. 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 shoplifting, 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 commission 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 cooperation in deterring from the commission of
crimes; and he thought it unwise to withdraw the salutary influence of that
terror.
The Bill for abolition of death penalty for cutting down a tree was opposed
by the Lord Chancellor in these terms :
It did undoubtedly seem a hardship that so heavy a punishment as that of
death should be affixed to the cutting down of a single tree, or the killing or
wounding of a cow. But if the Bill passed in its present state a person might
root up or cut down whole acres of plantations or destroy the whole of the stock
of cattle of a farmer without being subject to capital punishment.
Six times the House of Commons passed the Bill to abolish capital punishment
for shop lifting and six times the House of Lords threw out the Bill, the
majority of one occasion including all the judicial members, one Arch Bishop and
six Bishops. It was firmly believed by these opponents of abolition that death
penalty acted as a deterrent and if it was abolished, offences of shop-lifting
etc. would increase. But it is a matter of common knowledge that this belief was
wholly unjustified and the abolition of death penalty did not have any adverse
effect on the incidence of such offences. So also it is with death penalty for
the offence of murder. It is an irrational belief unsubstantiated by any factual
data or empirical research that death penalty acts as a greater deterrent than
life sentence and equally unfounded is the impression that the removal of death
penalty will result in increase of homicide. The argument that the rate of
homicide will increase if death penalty is removed from the statute book has
always been advanced by the established order out of fear psychosis, because the
established order has always been apprehensive that if there is any change and
death penalty is abolished, its existence would be imperilled. This argument has
in my opinion no validity because, beyond a superstitious belief, for which
there is no foundation in fact and which is based solely on unreason and fear,
there is nothing at all to show that death penalty has any additionally
deterrent effect not possessed by life sentence. Arthur Koestler tells us an
interesting story that in the period when pick-pockets were punished by hanging
in England, other thieves exercised their talents in the crowds surrounding the
scaffold where the convicted pickpocket 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
Further of the Supreme Court of the United States expressed the same opinion
when he said in the course of his examination before the Royal Commission on
Capital Punishment :
I think scientifically the claim of deterrence is not worth much.
The Royal Commission on Capital Punishment, after four years of investigation
which took it throughout the continent and even to the United States, also came
to the same conclusion:
Whether the death penalty is used or not and whether executions are
frequent or not, both death penalty states and abolition states show rates which
suggests that these rates are conditioned by other factors than the death
penalty.
and then again, it observed in support of this conclusion :
The general conclusion which we have reached is that there is no clear
evidence in any of the figures we have examined that the abolition of capital
punishment has led to an increasing homicide rate or that its introduction has
led to a fall.
Several studies have been carried out in the United States of America for the
purpose of exploring the deterrent effect of death penalty and two different
methods have been adopted. The first and by far the more important method seeks
to prove the case of the abolitionists by showing that the abolition of capital
punishment in other countries has not led to an increase in the incidence of
homicide. This is attempted to be shown either by comparing the homicide
statistics of countries where capital punishment has been abolished with the
statistics for the same period of countries where it has been retained or by
comparing statistics of a single country in which capital punishment has been
abolished, for periods before and after abolition or where capital punishment
has been reintroduced, then for the period before and after its reintroduction.
The second method relates to comparison of the number of executions in a country
in particular years with the homicide rate in the years succeeding. Now, so far
as the comparison of homicide statistics of countries which have abolished
capital punishment with the statistics of countries which have retained it, is
concerned, it may not yield any definitive inference, because in most cases
abolition or retention of death penalty may not be the only differentiating
factor but there may be other divergent social, cultural or economic factors
which may affect the homicide rates. It is only if all other factors are equal
and the only variable is the existence or non-existence of death penalty that a
proper comparison can be made for the purpose of determining whether death
penalty has an additional deterrent effect which life sentence does not possess,
but that would be an almost impossible controlled experiment. It may however be
possible to find for comparison a small group of countries or States, preferably
contiguous and closely similar in composition of population and social and
economic conditions generally, in some of which capital punishment has been
abolished and in others not. Comparison of homicide rates in these countries or
States may afford a fairly reliable indication whether death penalty has a
unique deterrent effect greater than that of life sentence. Such groups of
States have been identified by Professor Sellin in the United States of America
and similar conditions perhaps exist also in Newzealand and the Australian
States. The figures of homicide rate in these States dp 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 neighbouring 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
neighbouring 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."
278. Students of capital punishment have also studied the effect of abolition
and ^introduction of death penalty upon the homicide rate in a single state. If
death penalty has a significant deterrent effect, abolition should produce a
rise in homicides apart from the general trend and reintroduction should produce
a decline. After examining statistics from 11 states, Professor Sellin concluded
that "there is no evidence that the abolition of capital punishment generally
causes an increase in criminal homicides, or that its reintroduction is followed
by a decline. The explanation of changes in homicide rates must be sought
elsewhere."
279. 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.
280. 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 v significant effect on the murder rate. Chambliss,
another Criminologist, also reached the same conclusion in his article on "Types
of Deviance and the Effectiveness of Legal Sanctions" (1967) Wisconsin Law
Review 703 namely, that "given the preponderance of evidence, 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 C
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. Void 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.
281. 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 Capital 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 capital punishment was in
vogue.
1951 141 cases 47 188 1952 133 cases 32 165 1953 146 cases 54 200 1954 114 cases
57 171 1955 99 cases 30 129 1956 97 cases 17 114 Total 730 237 967
These figures show that the incidence of the crime murder did not increase at
all during the period of six years when the capital punishment was in abeyance.
This is in line with the experience of other countries where death penalty has
been abolished.
282. 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 crime rate. His paper was catapulated into the center 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 96
S. Ct. 3212 [1976] 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.
283. First, Peter Passell and John Taylor attempted to replicate Ehrlich's
findings and found that they stood scrutiny only under an unusually restrictive
set of circumstances. They found, for example that the appearance of deterrence
is. produced ' only when the regression equation is in logarathmic form and in
the more conventional linear regression frame work, the deterrent effect
disappeared. They also found that no such effect emerged when data for the years
after 1962 were omitted from the \ analysis and only the years 1953-61 were
considered. Kenneth Avio of the University of Victoria made an effort to
replicate Ehrlich's findings from Canadian experience but that effort also
failed and the conclusion reached by the learned jurist was that "the evidence
would appear to indicate that Canadian offenders over the period 1926-60 did not
behave in a manner consistent with an effective deterrent effect of capital
punishment." William Bowers and Glenn Pierce also made an attempt to replicate
Ehrlich's results and in replicating Ehrlich's work they confirmed the Passel-
Taylor findings that Ehrlich's results were extremely sensitive as to whether
the logarithmic specification was used and whether the data for the latter part
of 1960's were included. During 1975 the Yale Law Journal published a series of
articles reviewing the evidence on the deterrent effect of death penalty and in
the course of an article in this series, Ehrlich defended his work by addressing
himself to some of the criticism raised against his study. Hans Zeisel,
Professor Emeritus of Law and Sociology in the University of Chicago points out
in his article on The deterrent effect of death penalty; Facts v. Faith that in
this article contributed by him to the Yale Law Journal, Ehrlich did refute some
criticisms but the crucial ones were not met. Ehrlich in this Article referred
to a second study made by him, basing it this time on a comparison by States for
the years 1940 and 1950. He claimed that this study bolstered his original
thesis but conceded that his findings were "tentative and inconclusive". In the
mean time Passell made a State-by-State comparison for the years 1950 and 1960
and as a result of his findings, concluded that "we know of no reasonable way of
interpreting the cross sections (i.e. State-by State) data that would lend
support to the deterrence hypothesis."
284. 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 Ehriich's
analysis. They raised questions about his failure to consider the feedback
effect of crime on the economic variables in his model, although lie did
consider other feedback effects in bis analysis. They found some of Ehrlich's
technical manipulations to be superfluous and tending to obscure the accuracy of
his estimates. They, too, raised questions about variables omitted from the
analysis, and the effects of these omissions on the findings.
285. 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.
286. 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 reflecting
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.
287. 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."
288. This is the analysis of the subsequent studies of Passell and Taylor,
Bowers and Pierce and Klein and his colleagues made by Hans Zeisel in his
article on "The deterrent effect of the Death Penalty : Facts v. Faith". These
studies which were definitely more scientific and refined than Ehrlich's
demolish to a large extent the validity of the conclusion reached by Ehrlich and
establish that death penalty does not possess an additional deterrent effect
which life sentence does not. But, according to Hans Zeisel, the final blow to
the work of Ehrlich came from a study of Brian Forst, one of Klein's
collaborators on the earlier study. Since it had been firmly established that
the Ehrlich phenomenon, if it existed emerged from developments during the
sixties, Forst concentrated on that decade. He found a rigorous way of
investigating whether the ending of executions and the sharp increase in
homicides during this period was casual or conincidental. 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.
289. I may also at this stage refer once again to the opinion expressed by
Professor Sellin. The learned Professor after a serious and thorough study of
the entire subject in the United States on behalf of the American Law Institute
stated his conclusion in these terms :
Any one who carefully examines the above data is bound to arrive at the
conclusion that the death penalty as we use it exercises no influence on the
extent or fluctuating rate of capital crime. It has failed as a deterrent.
(Emphasis supplied)
So also in another part of the world very close to our country, a Commission
of Inquiry on capital punishment was appointed by late Prime Minister
Bhandarnaike of Shri Lanka and it reported :
If the experience of the many countries which have suspended or abolished
capital. punishment is taken into account, there is in our view cogent evidence
of the unlikelihood of this 'hidden protection'...It is, therefore, our view
that the statistics of homicide in Ceylon when related to the social changes
since the suspension of the death penalty in Ceylon and when related to the
experience of other countries tend to disprove the assumption of the uniquely
deterrent effect of the death penalty, and that in deciding on the question of
reintroduction or abolition of the capital punishment reintroduction cannot be
justified on the argument that it is a more effective deterrent to potential
killers than the alternative or protracted imprisonment.
290. 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.
291. The evidence on whether the threat of death penalty has a deterrent
effect beyond the threat of life sentence is therefore overwhelmingly on one
side. Whatever be the measurement yardstick adopted and howsoever sharpened may
be the analytical instruments they have not been able to discover any special
deterrent effect. Even regression analysis, the most sophisticated of these
instruments after careful application by the scholarly community, has failed to
detect special deterrent effect in death penalty which is not to be found in
life imprisonment. One answer which the protagonists of capital punishment try
to offer to combat the inference arising from these studies is that one cannot
prove that capital punishment does not deter murder because people who are
deterred by it do not report good news, to their police departments. They argue
that there are potential murderers in our midst who would be deterred from
killing by the death penalty, but would not be deterred by life imprisonment and
there is no possible way of knowing about them since these persons do not commit
murder and hence are not identified. Or to use the words of Sarkaria, J.
"Statistics of deterred potential murderers are difficult to unravel as they
remain hidden in the innermost recesses of their mind." But this argument is
plainly 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.
292. The majority speaking through Sarkaria, J. has observed that "in most of
the countries of the world including India, a very large segment of the
population including noteable penologists, Judges, jurists, legislators and
other enlightened people believe that death penalty for murder and certain other
capital offences does serve as a deterrent and a greater deterrent than life
imprisonment." I do not think this statement represents the correct factual
position. It is of course true that there are some penologists, judges, jurists,
legislators and other people who believe that death penalty acts as a greater
deterrent but it would not be correct to say that they form a large segment of
the population. The enlightened opinion in the world, as pointed out by me, is
definitely veering round in favour of abolition of death penalty. Moreover, it
is not a rational conviction but merely an unreasoned belief which is
entertained by some people including a few penologists, judges, jurists and,
legislators that death penalty has a uniquely deterrent effect. When you ask
these persons as to what is the reason why they entertain this belief, they will
not be able to give any convincing answer beyond stating that basically every
human being dreads death and therefore death would naturally act as a greater
deterrent than life imprisonment. That is the same argument advanced by Sir
James Fitz James Stephen, the draftsman of the Indian Penal Code| in support of
the deterrent effect of capital punishment. That great Judge and author said in
his Essay on Capital Punishment:
No other punishment deters men so effectually from committing crimes as the
punishment of death. This is one of those propositions which it is difficult to
prove simply because they are in themselves more obvious than any proof can make
them. It is possible to display ingenuity in arguing against it, but that is
all. The whole experience of mankind is in the other direction. The threat of
instant death is the one to which resort has always been made when there was an
absolute necessity of producing some results....No one goes to certain
inevitable death except by compulsion. Put the matter the other way, was there
ever yet a criminal who when sentenced to death and brought out to die would
refuse the offer of a commutation of a sentence for a severest secondary
punishment ? Surely not. Why is this ? It can only be because 'all that a man
has will be given for his life'. In any secondary punishment, however terrible,
there is hope; but death is death; its terrors cannot be described more
forcibly.
The Law Commission in its thirty-fifth report also relied largely on this
argument for taking the view that "capital punishment does act as a deterrent."
It set out the main points that weighed with it in arriving at this conclusion
and the first and foremost amongst them was that : "Basically every human being
dreads death", suggesting that death penalty has therefore a greater deterrent
effect than any other punishment. But this argument is not valid and a little
scrutiny will reveal that it is wholly unfounded. In the first place, even Sir
James Fitz James Stephen concedes that the proposition that death penalty has a
uniquely deterrent effect not possessed by any other punishment, is one which is
difficult to prove, though according to him it is self-evident. Secondly, there
is a great fallacy underlying the argument of Sir James Stephen and the Law
Commission. This argument makes no distinction between a threat of certain and
imminent punishment which faces the convicted murderer and the threat of a
different problematic punishment which may or may not influence a potential
murderer. Murder may be unpremeditated under the stress of some sudden outburst
of emotion or it may be premeditated after planning and deliberation. Where the
murder is unpremeditated, as for example, where it is the outcome of a sudden
argument or quarrel or provocation leading to uncontrollable anger or temporary
imbalance of the mind-and most murders fall within this category-any thought of
possibility of punishment is obliterated by deep emotional disturbance and the
penalty of death can no more deter than any other penalty. Where murder is
premeditated it may either be the result of lust, passion, jealousy hatred
frenzy of frustration or it may be a cold calculated murder for monetary or
other consideration. The former category of murder would conclude any
possibility of deliberation or a weighing of consequences; the thought of the
likelihood of execution after capture, trial and sentence would hardly enter the
mind of the killer. So far as the latter category of murder is concerned,
several considerations make it unlikely that the death penalty would play any
significant part in his thought. Since both the penalties for murder, death as
well as life sentence, are so severe as to destroy the future of any one
subjected to them, the crime would not be committed by a rational man unless he
thinks that there is little chance of detection. What would weigh with him in
such a case is the uncertainty of 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 greater deterrent to crime is not the fear of punishment
but the certainty of detection." Professor Hart emphasized the same point,
refuting the argument of Sir James Fitz James Stephen in these words :
This (Stephen's) estimate of the paramount place in human motivation of the
fear of death reads impressively but surely contains a suggestio falsi and once
this is detected its cogency as an argument in favour of the death penalty for
murder vanishes for there is really no parallel between the situation of a
convicted murderer over the alternative of life imprisonment in the shadow of
the gallows and the situation of the murderer contemplating his crime. The
certainty of death is one thing, perhaps for normal people nothing can be
compared with it. But the existence of the death penalty does not mean for the
murderer certainty of death now. It means not very high probability of death in
the future. And, futurity and uncertainty, the hope of an escape, rational or
irrational, vastly diminishes the difference between death and imprisonment as
deterrent and may diminish to vanishing point...The way in which the convicted
murderer may view the immediate prospect of thegallows 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
deterrent 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 Jby a sentence of
death. Whatever may have been the position prior to the enactment of the CrPC,
1973, it is now clear that under Section 354 Sub-section (3), life sentence is
the rule and it is only in exceptional cases for special reasons that death
sentence may be awarded. The entire drift of the legislation is against
infliction of death penalty and the courts are most reluctant to impose it save
in the rarest of rare cases. It is interesting to note that in the last 2 years,
almost every case where death penalty is confirmed by the High Court has come up
before this Court by way of petition for special leave, and, barring the case of
Ranga and Billa, I do not think there is a single case in which death penalty
has been affirmed by this Court. There have been numerous cases where even after
special leave petitions against sentence of death were dismissed, review
petitions have been entertained and death sentence commuted by this Court. Then
there is also the clemency power of the President under Article 72 and of the
Governor under Article 161 of the Constitution and in exercise of this power,
death sentence has been commuted by the President or the Governor, as the case
may be, in a number of cases. The chances of imposition of death sentence
following upon a conviction for the offence of murder are therefore extremely
slender. This is also evident from the figures supplied to us by the Government
of India for the years 1974 to 1978 pursuant to the inquiry made by us. During
the course of the hearing, we called upon the Government of India to furnish us
statistical information in regard to following three matters, namely, (i) the
number of cases in which and the number of persons on whom death sentence was
imposed and whose death sentence was confirmed by various High Courts in India;
(ii) the number of cases in which death sentence was executed in the various
States and the various Union Territories; and (iii) the number of cases in which
death sentence was commuted by the President of India under Article 72 or by the
Governors under Article 161 of the Constitution. The statistical information
sought by us was supplied by the Government of India and our attention was also
drawn to the figures showing the total number of offences of murder committed
inter alia during the years 1974-77. These figures showed that on an average
about 17,000 offences of murder were committed in India every year during the
period 1974 to 1977, and if we calculate on the " basis of this average, the
total number of offences of murder during the period of five years from 1974 to
1978 would come to about 85,000. Now, according to the statistical information
supplied by the Government of India, out of these approximately 85,000 case of
murder, there were only 288 in which death sentence was imposed by the sessions
court and confirmed by the High Courts and out of them, in 12 cases death
sentence was commuted by the President and in 40 cases, by the Governors and
death sentence was executed in only 29 cases. It will thus be seen that during
the period, of five years from 1974 to 1978, there was an infinitesingly small
number of cases, only 29 out of an aggregate number of approximately 85,000
cases of murder, in which death sentence was executed. Of course, the figures
supplied by the Government of India did not include the figures from the States
of 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 CrPC 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.
293. 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 view which
is entertained by quite a few lawyers, judges and legislators without any
scientific investigation or empirical 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 I. speaking on behalf of the court did take the view that
death penalty has a uniquely deterrent effect but I do not 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 and 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 case 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."
294. Then reliance has been placed by Sarkaria, J. speaking on behalf of the
majority on the observations of Stewart, J. in Furman v. Georgia (supra) where
the learned Judge took the view that death penalty serves a deterrent as well as
retributive purpose. In his view, certain criminal conduct is so atrocious that
society's interest in deterrence and retribution wholly outweighs any
considerations of reform or rehabilitation of the perpetrator and that, despite
the on conclusive empirical evidence, only penalty of death will provide maximum
deterrence. It has also been pointed out by Sarkaria, J. that in Gregg v.
Georgia (supra) Stewart, J. reiterated the same view in regard to the deterrent
and retributive effect of death penalty. But the view taken by Stewart, J.
cannot be regarded as decisive of the present question as to the deterrent
effect of death penalty. It is just one view like any other and its validity has
to be tested on the touchstone of logic and reason. It cannot be accepted merely
because it is the view of an eminent judge, I find that as against the view
taken by him, there is a contrary view taken by at least two judges of the
United States Supreme Court, namely, Brennan J. and Marshall J. who were
convinced in Gregg v. Georgia (supra) that "capital punishment is not necessary
as a deterrent to crime in our society." It is natural differing judicial
observations supporting one view or the other that these should be particularly
on a sensitive issue like this, but what is necessary is to examine objectively
and critically the logic and rationale behind these observations and to
determine for ourselves which observations represent the correct view that
should find acceptance with us. The majority Judges speaking through Sarkaria,
J. have relied upon the observations of Stewart, J. as also on the observations
made by various other Judges and authors for the purpose of concluding that when
so many eminent persons have expressed the view that capital punishment is
necessary for the protection of society, how can it be said that it is arbitrary
and unreasonable and does not serve any rational penological purpose. It has
been observed by Sarkaria, J : "It is sufficient to say that the very fact that
persons of reason, learning and light are rationally and deeply divided in their
opinion on this issue, is a ground among others, for rejecting the petitioners'
argument that retention of death penalty in the impugned provision, is totally
devoid of reason and purpose. If, notwithstanding the view of the Abolitionists
to the contrary, a very large segment of people, the world over, including
sociologists legislators, jurists, judges and administrators still firmly
believe in the worth and necessity of capital punishment for the protection of
society...it is not possible to hold that the provision of death penalty as an
alternative punishment for murder...is unreasonable and not in the public
interest. I find it difficult to accept this argument which proceeds upon the
hypothesis that merely because some lawyers, judges and jurists are of the
opinion that death penalty sub-serves a penological goal and is therefore in
public interest, the court must shut its eyes in respectful deference to the
views expressed by these scholars and refuse to examine whether their views are
correct or not. It is difficult to understand how the court, when called upon to
determine a vital issue of fact, can surrender its judgment to the views of a
few lawyers, judges and jurists and hold that because such eminent persons have
expressed these views, there must be some substance in what they say and the
provision of death penalty as an alternative punishment for murder cannot
therefore be regarded as arbitrary and unreasonable. It is to my mind
inconceivable that a properly informed judiciary concerned to uphold Fundamental
Rights should decline to come to its own determination of a factual dispute
relevant to the issue whether death penalty serves a legitimate penological
purpose and rest its decision only on the circumstance that there are
sociologists, legislators, judges and jurists who firmly believe in the worth
and necessity of capital punishment. The court must on the material before it
find whether the views expressed by lawyers, judges, jurists and criminologists
on one side or the other are well founded in logic and reason and accept those
which appear to it to be correct and sound. The Court must always remember that
it is charged by the Constitution to act as a sentinel on the qui vive guarding
the fundamental rights guaranteed by the Constitution and it cannot shirk its
responsibility by observing that since there' are strong divergent views on the
subject, the court need not express any categorical opinion one way or the other
as to which of these two views is correct. Hence it is that, in the discharge of
my constitutional duty of protecting and upholding the right to life which is
perhaps the most basic of all human rights, I have examined the rival views and
come to the conclusion, for reasons which I have already discussed, that death
penalty has no uniquely deterrent effect and does not serve a penological
purpose. But even if we proceed on the hypothesis that the opinion in regard to
the deterrent effect of death penalty is divided and it is not possible to say
which opinion is right and which opinion is wrong, it is obvious that, in this
state of affairs, it cannot be said to be proved that death penalty has an
additional deterrent effect not possessed by life sentence and if that be so,
the legislative provision for imposition of death penalty as alternative
punishment for murder fail, since, as already pointed out above, the burden of
showing that death penalty has a uniquely deterrent effect and therefore serves
a penological goal is on the State and if the State fails to discharge this
burden which lies upon it, death penalty as alternative punishment for murder
must be held to be arbitrary and unreasonable.
295. 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 to come to a conclusion, without
studies extending over a long period of years.
(e) Whether any other punishment can possess all the advantages of capital
punishment is a matter of doubt.
(f) Statistics of other countries are inconclusive on, the subject. If they
are. not regarded as proving the deterrent effect, neither can they be regarded
as conclusively disproving it.
So far as the first argument set out in Clause (a) is concerned, I have
already shown that the circumstance that every human being dreads death cannot
lead to the inference that death penalty acts as a deterrent. The statement made
in Clause (b) is perfectly correct and I agree with the Law Commission.that
death as a penalty stands on a totally different level from life imprisonment
and the difference between them is one of quality and not merely of degree, but
I fail to see how from this circumstance an inference can necessarily follow
that death penalty has a uniquely deterrent effect. Clause (c) sets out that
those who are specially qualified to express an opinion on the subject have in
their replies to the questionnaire stated their definite view that the deterrent
effect of capital punishment is achieved in a fair measure in India. It may be
that a large number of persons who sent replies to the. questionnaire issued by
the Law Commission might have expressed the view that death penalty does act as
a deterrent in our country, but mere expression of opinion in reply to the
questionnaire, unsupported by reasons, cannot have any evidenciary value. There
are quite a number of people in this country who still nurture the superstitions
and irrational belief, ingrained in their minds by a century old practice of
imposition of capital punishment and fostered, though not consciously, by the
instinct for retribution, that death penalty alone can act as an effective
deterrent against the crime of murder. I have already demonstrated how this
belief entertained by lawyers, judges, legislators and police officers is a myth
and it has no basis in logic or reason. In fact, the statistical research to
which I have referred completely falsifies this belief. Then, there are the
arguments in Clauses (d) and (e) but these arguments even according to the Law
Commission itself are inconclusive and it is difficult to see how they can be
relied upon to support the thesis that capital punishment acts as a deterrent.
The Law Commission states in Clause (f) that statistics of other countries are
inconclusive on the subject. I do not agree. I have already dealt with this
argument and shown that the statistical studies carried out by various jurists
and criminologists clearly disclose that there is no evidence at all to suggest
that death penalty acts as a deterrent and it must therefore be held on the
basis of the available material that death penalty does not act as a deterrent.
But even if we accept the proposition that the statistical studies are
inconclusive and they cannot be regarded as proving that death penalty has no
deterrent effect, it is clear that at the same time they also do not establish
that death penalty has a uniquely deterrent effect and in this situation, the
burden of establishing that death penalty has an additional deterrent effect
which life sentence does not have and therefore serves a penological purpose
being on the State, it must held that the State has failed to discharge the
burden which rests upon it and death penalty must therefore be held to be
arbitrary and unreasonable.
296. 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 need to maintain
law and order in the country at the present juncture, India cannot risk the
experiment of abolition of capital punishment. This argument does not commend
itself to me as it is based more on fear psychosis than on reason. It is
difficult to see how any of the factors referred to by the Law Commission,
barring the factor relating to the need to maintain law and order, can have any
relevance to the question of deterrent effect of capital punishment. I cannot
subscribe to the opinion that, because the social upbringing of the people
varies from place to place or from class to class or there are demographic
diversities and variations, they tend to increase the incidence of homicide and
even if they do, I fail to see how death penalty can counter act the effect of
these factOrs. It is true that the level of education in our country is low,
because our developmental process started only after we became politically free,
but it would be grossly unjust to say that uneducated people are more prone to
crime than the educated ones. I also cannot agree that the level of morality
which prevails amongst our people is low. I firmly hold the view that the large
bulk of the people in our country, barring only a few who occupy positions of
political, administrative or economic power, are actuated by a high sense of
moral and ethical values. In fact, if we compare the rate of homicide in India
with that in the United States, where there is greater homogeneity in population
and the level of education is fairly high, we find that India compares very
favourably with the United States. The rate of homicide for the year 1952 was
4.7 in the United States as against the rate of only 2.9 in India per 1,00,000
population and the figures for the year 1960 show that the rate of homicide in
the United States was 5.1 as against the rate of only 2.5 in India per 1,00,000
population. The comparative figures for the year 1967 also confirm that the rate
of homicide per 1,00,000 population in the United States was definitely. higher
than that in India because in the United States it was 6.1 while in India it was
only 2.6. It is therefore obvious that, despite the existence of the factors
referred to by the Law Commission, the conditions in India, in so far as the
rate of homicide is concerned, are definitely better than in the United States
and I do not see how these factors can possibly justify an apprehension that it
may be risky to abolish capital punishment. There is in fact statistical
evidence to show that the attenuation of the area in which death penalty may be
imposed and the remoteness and infrequency of abolition of death penalty have
not resulted in increase in the rate of homicide. The figures which were placed
before us on behalf of the Union clearly show that there was no increase in the
rate of homicide even though death sentence was made awardable only in
exceptional cases under Section 354 Sub-section (3) of the new CrPC 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.
297. 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 CrPC, 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 jof Articles 14 and 21 of the Constitution.
298. 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 CrPC, 1973 on the ground that these
sections confer an unguided and standardless discretion on the court whether to
liquidate an accused out of existence or to let him continue to live and the
vesting of such discretion in the court renders the death penalty arbitrary and
freakish. This ground of challenge is in my opinion well founded and it
furnishes one additional reason why the death penalty must be struck down as
violative of Articles 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 Tight 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 compass or directional guidance. The
respondents sought to find some guidance in Section 354 Sub-section (3) of the
CrPC 1973 but I fail to see how that section can be of any help at all in
providing guidance in the exercise of discretion. On the contrary it makes the
exercise of discretion more difficult and uncertain. Section 354 Sub-section (3)
provides that in case of offence of murder, life sentence shall be the rule and
it is only in exceptional cases for special reasons that death penalty may be
awarded. But what are the special reasons for which the court may award death
penalty is a matter on which Section 354 Sub-section (3) is silent nor is any
guidance in that behalf provided by any other provision of law. It is left to
the Judge to grope in the dark for himself and in the exercise of his unguided
and unfettered discretion decide what reasons may be considered as 'special
reasons' justifying award of death penalty and whether in a given case any such
special reasons exist which should persuade the court to depart from the normal
rule and inflict death penalty on the accused. There being no legislative policy
or principle to guide. the court in exercising its discretion in this delicate
and sensitive area of life and death, the exercise of discretion of the Court is
bound to vary from judge to judge. What may appear as special reasons to one
judge may not so appear to another and the decision in a given case whether to
impose the death sentence or to let off the offender only with life imprisonment
would, to a large extent, depend upon who is the judge called upon to make the
decision. The reason for this uncertainty in the sentencing process is two-fold.
Firstly, the nature of the sentencing process is such that it involves a highly
delicate task calling for skills and talents very much different from those
ordinarily expected of lawyers. This was pointed out clearly and emphatically by
Mr. Justice Frankfurter in the course of the evidence he gave before the Royal
Commission on Capital Punishment :
I myself think that the bench-we lawyers who become 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 jn 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, but that
does not eliminate arbitrariness and caprice, firstly because there being no
guidelines provided by the legislature, the reasons which may appeal to one
judge as 'special reasons' may not appeal to another, and secondly, because
reasons can always be found for a conclusion that the judge instinctively wishes
to reach and the judge can bonafide and conscientiously find such reason to be
'special reasons'. It is now recognised on all hands that judicial conscience is
not a fixed conscience; it varies from judge to judge 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".
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 tendency, whether you choose to
call it philosophy or not, which gives coherence and direction to thought and
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 may try to see things as
objectively as we please. Nonetheless, 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
emotionless human being.
It must be remembered that "a Judge does not shed the attributes of common
humanity when he assumes the ermine." The ordinary human mind is a mass of pre-
conceptions inherited and acquired, often unrecognised by their possessor. "Few
minds are as neutral as a sheet of plain glass and indeed a mind of that quality
may actually fail in judicial efficiency, for the warmer tints of imagination
and sympathy are needed to temper the cold light of reason, if human justice is
to be done." It is, therefore, obvious that when a Judge is called upon to
exercise his discretion as to whether the accused shall be killed or shall be
permitted to live, his conclusion would depend to a large extent on his approach
and attitude, his predilections and pre-conceptions, his value system and social
philosophy and his response to the evolving norms of decency and newly
developing concepts and ideas in penological jurisprudence. One Judge may have
faith in the Upanishad doctrine that every human being is an embodiment of the
Divine and he may believe with Mahatma Gandhi that every offender can be
reclaimed and transformed by love and it is immoral and unethical to kill him,
while another Judge may believe that it is necessary for social defence that the
offender should be put out of way and that no mercy should be shown to him who
did not show mercy to another. One Judge may feel that the Naxalites, though
guilty of murders, are dedicated souls totally different from ordinary criminals
as they are motivated not by any self-interest but by a burning desire to bring
about a revolution by eliminating vested interests and should not therefore be
put out of corporeal existence while another Judge may take the view that the
Naxalities being guilty of cold premeditated murders are a menace to the society
and to innocent men and women and therefore deserve to be liquidated. The views
of Judges as to what may be regarded as 'special reasons' are bound to differ
from Judge to Judge depending upon his value system and social philosophy with
the result that whether a person shall live or die depends very much upon the
composition of the bench which tries his case and this renders the imposition of
death penalty arbitrary and capricious.
299. 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 apparent from a study
of the judicial decisions that some Judges are readily and regularly inclined to
sustain death sentences, other are similarly disinclined and the remaining waver
from case to case. Even in the Supreme Court there are divergent attitudes and
opinions in regard to the imposition of capital punishment. If a case comes
before one Bench consisting of Judges who believe in the social efficacy of
capital punishment, the death sentence would in all probability be confirmed but
if the same case comes before another Bench consisting of Judges who are morally
and ethically against the death penalty, the death sentence would most likely be
commuted to life imprisonment. The former would find and I say this not in any
derogatory or disparaging sense, but as a consequence of psychological and
attitudinal factors operating on the minds of the Judges constituting the
Bench-'special reasons' in the case to justify award of death penalty while the
latter would reject any such reasons as special reasons. It is also quite
possible that one Bench may, having regard to its preceptions, 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 some times 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 but 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 CrPC 1973. If a similar exercise is performed with reference
to cases decided by the Supreme Court after 8th March 1976, that being the date
upto which the survey carried out by Prof. Blackshield was limited, the analysis
will reveal the same pattern of incoherence and arbitrariness, the decision to
kill or not to kill being guided to a large extent by the composition 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 when it was first beard 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.
300. The most striking example of freakishness in imposition of death penalty
is provided by a recent case which involved three accused, namely, Jeeta Singh,
Kashmira Singh and Harbans Singh. These three persons were sentenced to death by
the Allahabad High Court by a judgment and order dated 20th October 1975 for
playing an equal part in jointly murdering a family of four persons. Each of
these three persons preferred a separate petition in the Supreme Court for
special leave to appeal against the common judgment sentencing them all to death
penalty. The special leave petition of Jeeta Singh came up for hearing before a
bench consisting of Chandrachud, J. (as he then was) Krishna Iyer, J. and N.L.
Untwalia, J. and it was dismissed on 15th April 1976. Then came the special
leave petition preferred by Kashmira Singh from jail and this petition was
placed for hearing before another bench consisting of Fazal Ali, J. and myself.
We granted leave to Kashmira Singh limited to the question of sentence and by an
order dated 10th April 1977 we allowed his appeal and commuted his sentence of
death into one of imprisonment for life. The result was that while Kashmira
Singh's death sentence was commuted to life imprisonment by one Bench, the death
sentence imposed on Jeeta Singh was confirmed by another bench and he was
executed on 6th October 1981, though both had played equal part in the murder of
the family and there was nothing to distinguish the case of one from that of the
other. The special leave petition of Harbans Singh then came up for hearing and
this time, it was still another bench which heard his special leave petition.
The Bench consisted of Sarkaria and Singhal, JJ. and they rejected the special
leave petition of Harbans Singh on 16th 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 CrPC 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 ?
301. 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 402 US 183 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
inconsistent awards of punishment have been made and the judges have frequently
articulated their inability to prescribe or follow consistently any standards or
guidelines. He has classified cases upto 1976 in terms of the reasons given by
the court for awarding or refusing to award death sentence. The analysis made by
him is quite rewarding and illuminating.
(i) One of the reasons given by the courts in a number of cases for
imposing death penalty is that the murder is "brutal", "cold blooded",
"deliberate", "unprovoked", "fatal", "gruesome", "wicked", "callous", "heinous"
or "violent". But the use of these labels for describing the nature of the
murder is indicative only of the degree of the court's aversion for the nature
or the manner of commission of the crime and it is possible that different
judges may react differently to these situations and moreover, some judges may
not regard this factor as having any relevance to the imposition of death
penalty and may therefore decline to accord to it the status of "special
reasons". In fact, there are numerous cases, where despite the murder being one
falling within these categories, the court has refused to award death sentence.
For example, Janardharan whose appeal was decided along / with the appeal of
Rajendra Prasad had killed his innocent wife and children in the secrecy of
night and the murder was deliberate and cold blooded, attended as it was with
Considerable brutality, and yet the majority consisting of Krishna Iyer, J. and
D.A. Desai, J. commuted his death sentence to life imprisonment. So also Dube
had committed triple murder and still his death sentence was commuted to life
imprisonment by the same two learned Judges, namely, Krishna Iyer, J. and D.A.
Desai, J. It is therefore clear that the epithets mentioned above do not
indicate any clearcut well defined categories but are merely expressive of the
intensity of judicial reaction to the murder, which may not be uniform in all
Judges and even if the murder falls within one of these categories, that factor
has been regarded by some judges as relevant and by others, as irrelevant and it
has not been uniformly applied as a salient factor in determining whether or not
death penalty should be imposed.
(ii) There have been cases where death sentence has been awarded on the
basis of constructive or joint liability arising under Sections 34 and 149. Vide
: Babu v. State of U.P. 1965 Cr. LJ SC 539. Mukhtiar Singh v. State of Punjab
1965 Cr. LJ SC 1298. Masalt v. State of U.P. 1965 Cr. LJ SC 226. Gurcharan Singh
v. State of Punjab 1973 Cr. LJ SC 323. 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
established 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 commuting 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 1972 Cr. LJ SC 489. Raghubir
Singh v. Sate of Haryana and Gurudas Singh v. State of
Rajasthan 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. 1971 Cr.
LJ SC 413 and Raghomani v. State of V.P. 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 of commutation. The result is that as pointed out by Dr.
Raizada, in some situations young offenders who have committed multiple murders
get reduction in life sentence whereas in others, "where neither the loss of as
many human lives nor of higher valued properly" is involved, the accused are
awarded death sentence.
(iv) One other mitigating factor which is often taken into account is delay
in final sentencing. This factor of delay after sentence received great emphasis
in Ediga Annamma v. State of Andhra Pradesh Chawla v. State of Haryana .
Raghubir Singh v. State of Haryana (supra) Bhur Singh v. State of Punjab .
State of Punjab v. Hari Singh
and Gurudas Singh v. State of Rajasthan
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 specter 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. 1955 Cr. L.J. SC 873, Bharmal Mapa v. State of Bombay 1960 Cr.
L.J. SC 494 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
importance should be given to the factor of delay and if so to what extent are
matters entirely within the discretion of the court and it is not possible to
assert with any definitiveness that a particular period of delay after
sentencing will earn for the accused immunity from death penalty. It follows as
a necessary corrolary from these vagaries in sentencing arising from the factor
of delay, that the imposition of capital punishment becomes more or less a kind
of cruel judicial lottery. If the case of the accused is handled expeditiously
by the prosecution, defence lawyer, sessions court, High Court and the Supreme,
Court, then this mitigating factor of delay is not available to him for
reduction to life sentence. If, on the other, hand, there has been lack of
despatch, engineered or natural, then the accused may escape the gallows,
subject of course to the judicial vagaries arising from other causes. In other
words, the more efficient the proceeding, the more certain the death sentence
and vice-versa.
(v) The embroilment of the accused in an immoral relationship has been
condoned and in effect, treated as an extenuating factor in Raghubir Singh v.
State of Haryana (supra) and Basant Laxman More v. State of Maharashtra while in
Lajar Masih v. State
of U.P., it has been condemed and in effect
treated as an aggravating factor. There is thus no uniformity of approach
even so far as this factor is concerned.
302. All these factors 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.
303. Professor Blackshield has also in his article on "Capital Punishment in
India" commented on the arbitrary and capricious nature of imposition of death
penalty and demonstrated forcibly and almost conclusively, that arbitrariness
and uneven incidence are inherent and inevitable in a system of capital
punishment. He has taken the decision of this Court in Ediga Anamma v. State of
Andhra Pradesh (supra) as the dividing line and examined the judicial decisions
given by this Court subsequent to the decision in Ediga Anamma's case, where
this Court had to choose between life and death under Section 302 of the Indian
Penal Code. The cases subsequent 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 contradictions 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 bard 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
guarantee of "equality before the law.
It is clear from a study of the decisions of the higher courts on the life-
or-death choice that judicial adhocism or judicial impressionism, dominates the
sentencing exercise and the infliction of death penalty suffers from the vice of
arbitrariness and caprice.
I may point out that Krishna Iyer, J. has also come to the the same
conclusion on the basis of his long, experience of the sentencing process. He
has analysed the different factors which have prevailed with the Judges from
time to time in awarding or refusing to award death penalty and shown how some
factors have weighed 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
offender and even the lapse of time between the trial Court's award of death
sentence and the final disposal of the appeal ? With some judges, motives,
provocations, primary or constructive guilt, mental disturbance and old feuds,
the savagery of the murderous moment or the plan which has preceded the killing;
the social milieu, the sublimated class complex and other odd factors enter the
sentencing calculas. Stranger still, a good sentence of death by the trial Court
is sometimes upset by the Supreme Court because of law's delays. Courts have
been directed execution of murderers who are mental cases, who do not fall
within the McNaghten rules, because of the insane fury of the slaughter. A big
margin of subjectivism, a preference for old English precedents, theories of
modern penology, 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 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.
304. But when it was contended that sentencing discretion is inherent in our
legal system, and, in fact, it is desirable, because no two cases or criminals
are identical and if no discretion is left to the court and sentencing is to be
done according to a rigid pre-determined 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 has
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 founded and must be rejected. It is true that criminal cases do not fall
into set behaviouristic patterns and it is almost impossible to find two cases
which are exactly identical. There are, as pointed out by Sarkaria, J. in the
majority judgment, "countless permutations and combinations which are beyond the
anticipatory capacity of the human calculus". Each case presents its own
distinctive features, its peculiar combinations of events and its unique
configuration of facts. That is why, in the interest of individualised justice,
it is necessary to vest sentencing discretion in the court so that appropriate
sentence may be imposed by the court in the exercise of its judicial discretion,
having regard to the peculiar facts and circumstances of a given case, or else
the sentencing process would cease to be just and rational and justice would be
sacrificed at the altar of blind uniformity. But at the same time," the
sentencing discretion conferred upon the court cannot be altogether uncontrolled
or unfettered. The strategem which is therefore followed by the legislatures
while creating and defining offences is to prescribe the maximum punishment and
in some cases, even the minimum and leave it to the discretion of the court to
decide upon the actual term of imprisonment. This cannot be regarded as
arbitrary or unreasonable since the discretion that is left to the court is to
choose an appropriate term of punishment between the limits laid down by the
legislature, having regard to the distinctive features and the peculiar facts
and circumstances of the case. The conferment of such sentencing discretion is
plainly and indubitably essential for rendering individualised justice. But
where the discretion granted to the court is to choose between life and death
without any standards or guidelines provided by the legislature, the death
penalty does become arbitrary and unreasonable. The death penalty is
qualitatively different from a sentence of imprisonment. Whether a sentence of
imprisonment is for two years or five years of 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 '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 of men and it makes no difference in the application
of this principle, whether 'men' belong to the administration or to the
judiciary.. It is a basic requirement of the equality clause contained in
Article 14 that the exercise of discretion must always be guided by standards or
norms so that it does not degenerate into arbitrariness and operate unequally on
persons similarly situate. Where unguided and unfettered discretion is conferred
on any authority, whether it be the executive or the judiciary, it can be
exercised arbitrarily or capriciously by such authority, because there would be
no standards 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 unprincipled
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 discretio.n in the court whether to award death
sentence or to inflict only the punishment of life imprisonment. 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.
305. 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 flat lay down
standards or norms which would guide the Judge in exercising his discretion to
award the death penalty. Now it is true that there are cases where the court
lays down principles and standards for guidance in the exercise of the
discretion conferred upon it by a statute, but that is done by the court only in
those cases where the principles or standards are gatherable from the provisions
of the statute. Where a statute confers discretion upon a court, the statute may
lay down the broad standards or principles which should guide the court in the
exercise of such discretion or such standards or principles may be discovered
from the object and purpose of the statute, its underlying policy and the scheme
of its provisions and some times, even from the surrounding circumstances. When
the court lays down standards or principles which should guide it in the
exercise of its discretion, the court does not evolve any new standards or
principles of its own but merely discovers them from the statute. The standards
or principle laid down by the court in such a case are not standards or
principles created or evolved by the court but they are standards or principles
enunciated by the legislature 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 bow 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 v 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 respondents 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.
306. I am fortified in this view by the decision of the Supreme Court of the
United States in Furman v. Georgia (supra). The question which was brought
before the court for consideration in that case was whether the imposition and
execution of death penalty constituted "cruel and unusual punishment" within the
meaning of the Eighth Amendment as applied to the States by the Fourteenth. The
court, by a majority of five against four, held that the death penalty as then
administered in the United States was unconstitutional, because it was. being
used in an arbitrary manner and such arbitrariness in capital punishment was a
violation of the Eighth Amendment prohibition against "cruel and unusual
punishment" which was made applicable to the States by the Fourteenth Amendment.
Brennan J. and Marshall, J. took the view that the death penalty was per se
unconstitutional as violative of the prohibition of the Eighth Amendment.
Brennan, J. held that the death penalty constituted cruel and unusual punishment
as it did not comport with human dignity and it was a denial of human dignity
for a State arbitrarily to subject a person to an unusually severe punishment
which society indicated that it did not regard as acceptable and which could not
be shown to serve any penal purpose more effectively than a significantly less
drastic punishment. Marshall, J. stated that the death penalty violated the
Eighth Amendment because it was an excessive and unnecessary punishment and also
because it was morally unacceptable to the people of the United States. The
other three learned Judges namely, Douglas, J. Stewart, J. and White, J. did not
subscribe to the view that the death penalty was per se unconstitutional in all
circumstances but rested their judgment on the limited ground that the death
penalty as applied in the United States was unconstitutional. Douglas, J. argued
that "we deal with a system of law and of justice that leaves to the
uncontrolled discretion of judges or juries the determination whether defendants
committing these crimes should die or be imprisoned. Under these laws no
standards govern the selection of the penalty. People live or die dependent on
the whim of one man or of twelve." Stewart, J. also voiced his concern about the
unguided and unregulated discretion in the sentencing process and observed :
"...the Eighth and Fourteenth Amendments cannot tolerate the infliction of a
sentence of death under legal systems that permit this unique penalty to be so
wantonly and so freakishly imposed." The remaining four Judges, namely, Burger,
C.J. Blackmun, J. Powell, J. and Rehr.quist, J. took the opposite view and
upheld the constitutional validity of the death penalty in its entirety. It will
thus be seen that the view taken by the majority decision in this case was that
a law which gives uncontrolled and unguided discretion to the Judge (or the
jury) to choose arbitrarily between death sentence and life imprisonment for a
capital offence violates the Eighth Amendment which inhibits cruel and unusual
punishment. Now Sarkaria, J. speaking on behalf of the majority, has brushed
aside this decision as inapplicable in India on the ground that we "do not have
in our Constitution any provision like the Eighth Amendment nor are we at
liberty to apply the test of reasonableness with the freedom with which the
Judges of the Supreme Court of America are accustomed to apply the 'due process'
clause." I am unable to agree with this reasoning put forward in the majority
judgment. I have already pointed out that though there is no explicit provision
in our Constitution prohibiting cruel and unusual punishment, this Court has in
Francis Mullin's case (supra) held that immunity against torture or cruel and
unusual punishment or treatment is implicit in Article 21 and therefore, if any
punishment is cruel and unusual, it would be violative of basic human dignity
which is guaranteed under Article 21.Moreover, in Maneka Gandhi's case (supra)
this Court has by a process of judicial interpretation brought in the procedural
due process clause of the American Constitution by reading in Article 21 the
requirement that the procedure by which a person may be deprived of his life or
personal liberty must be reasonable, fair and just. Douglas, J. has also pointed
out in Furman's case (supra) that "there is increasing recognition of the fact
that the basic theme of equal protection is implicit in 'cruel and
unusual'punishment. A penalty...should be considered 'unusually' imposed, if it
is administered arbitrarily or discriminatorily" and thus brought in the equal
protection clause for invalidating the death penalty. It is also significant to
note that despite the absence of provisions like the American Due Process Clause
and the Eighth Amendment, this Court speaking through Desai, J. said in Sunil
Batra v. Delhi Administration .
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.
307. 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.
308. It may be pointed out that subsequent to the decision in Furman's case
(supra) and as a reaction to it the legislatures of several States in the United
States passed statutes limiting or controlling the exercise of discretion by
means of explicit standards to be followed in the sentencing process. These
'guided discretion' statutes provided standards typically in the form of
specific aggravating and mitigating circumstances that must be taken into
account before death sentence can be handed down. They also provided for
separate phases of the trial to determine guilt and punishment and for automatic
appellate review of death sentences. The constitutional validity of some of
these 'guided discretion' statutes was challenged in Gregg v. Georgia (supra)
and companion cases and the Supreme Court of the United States upheld these
statutes on the ground that providing specific sentencing guidelines to be
followed in a separate post conviction phase of the trial would free the
sentencing decision of arbitrariness and discrimination. There is considerable
doubt expressed by leading jurists in the United States, in regard to
correctness of this decision, because in their view the guide lines provided by
these statutes in the form of specific aggravating and/or mitigating
circumstances are too broad and too vague to serve as an effective guide to
discretion. In fact, while dealing with the challenge to the constitutional
validity of a 'guided discretion' statute enacted by the Legislature of
Massachusettes, the Supreme Court of Massachusettes by a majority held in
District Attorney for the Suffolk District v. Watson Mass. Sh. [1980] that the
statute providing for imposition of death penalty was unconstitutional on the
ground that it was violative of Article 26 of the Declaration of Rights of
the.Massachusettes Constitution which prohibits infliction of cruel or unusual
punishment. Henneseey, C.J. pointed out that in enacting the impugned statute
the Legislature of Massachusettes had clearly attempted to follow the mandate of
the Furman opinion and its progeny by promulgating a law of guided and
channelled jury discretion, but even so it transgressed the prohibition of
Article 26 of the Declaration of Rights of the State Constitution. The learned
Chief Justice observed : "... it follows that we accept the wisdom of Furman
that arbitrary and capricious infliction of death penalty is unconstitutional.
However, we add that such arbitrariness and discrimination, which inevitably
persists even under a statute which meets the demands of Furman, offends Article
26 of the Massachusettes Declaration of Rights." But we are not concerned here
with the question as to whether the decision in Gregg's case represents the
correct law or the decision of the Massachusettes Supreme Court in Watson's
case. That controversy does not arise here because admittedly neither the Indian
Penal Code nor any other provision of law sets out any aggravating or mitigating
circumstance or any other considerations which must be taken into account in
determining whether death sentence should be awarded or not. Here the sentencing
discretion conferred upon the court is totally uncontrolled and unregulated or
if I may borrow an expression from Furtnan's decision, it is 'standardless' and
'unprincipled'.
309. It is true that there are certain safeguards provided in the CrPC, 1973
which are designed to obviate errors in the exercise of judicial discretion in
the matter of imposition of death penalty. Section 235 Sub-section (2)
bifurcates the trial by providing two hearings one at the pre-conviction stage
and another at the pre-sentence stage so that at the second stage following upon
conviction, the court can gather relevant information bearing on the question of
punishment and decide, on the basis of such information, what would be the
appropriate punishment to be imposed on the offender. Section 366 Sub-section
(1) requires the court passing a sentence of death to submit the proceedings to
the High Court and when such reference is made to the High Court for
confirmation of the death sentence, the High Court may under Section 367 direct
further inquiry to be made or additional evidence to be taken and under Section
368, confirm the sentence of death or pass any other sentence warranted by law
or annual or alter the conviction or order a new trial or acquit the accused.
Section 369 enjoins that in every reference so made, the confirmation of the
sentence or any new sentence or order passed by the High Court, shall, when such
court consists of two or more judges, be made, passed and signed by at least two
of them. Then there is also a proviso in Section 379 which says that when the
High Court on appeal reverses an order of acquittal and convicts the accused and
sentences him to death, the accused shall have a right to appeal to the Supreme
Court. Lastly there is an over-riding power conferred on the Supreme Court"
under Article 136 to grant, in its discretion, special leave to appeal to an
accused who has been sentenced to death. These are undoubtedly some safeguards
provided by the legislature, but in the absence of any standards or principles
provided by the legislature to guide the exercise of the sentencing discretion
and in view of the fragmented bench structure of the High Courts and the Supreme
Court, these safeguards cannot be of any help in eliminating arbitrariness and
freakishness in imposition of death penalty. Judicial ad hocism or waywardliness
would continue to characterise the exercise of sentencing discretion whether the
Bench be of two judges of the High Court or of two or three judges of the
Supreme Court and arbitrary and uneven incidence of death penalty would continue
to afflict the sentencing process despite these procedural safeguards. The
reason is that these safeguards are merely peripheral and do not attack the main
problem which stems from lack of standards or principles to guide the exercise
of the sentencing discretion. Stewart, J. pointed out in Gregg's case (supra),
"...the concerns expressed in Furman that the penalty of death not be imposed in
an arbitrary or capricious manner can be met by a carefully drafted statute that
ensures that the sentencing authority is given adequate information and
guidance. As a general proposition these concerns are best met by a system that
provides for a bifurcated proceeding at which the sentencing authority is
apprised of the information relevant to the imposition of sentence and provided
with standards to guide its use of the information." The first requirement that
there should be a bifurcated proceeding at which the sentencing authority is
apprised of the information relevant to the imposition of sentence is met by the
enactment of Section 235 Sub-section (2), but the second requirement that the
sentencing authority should be provided with standards to guide its use of the
information is not satisfied and the imposition of death penalty under Section
302 of the Indian Penal Code read with Section 354 Sub-section (3) of the CrPC,
1973 must therefore be held to be arbitrary and capricious and hence violative
of Articles 14 and 21.
310. There is also one other characteristic of death penalty that is revealed
by a study of the. decided cases and it is that death sentence has a certain
class complexion or class bias in as much as it is largely the poor and the
down-trodden who are the victims of this extreme penalty. We would hardly find a
rich or affluent person going to the gallows. Capital punishment, as pointed out
by Warden Duffy is "a privilege of the poor." Justice Douglas also observed in a
famous death penalty case "Former Attorney Pamsey Clark has said : 'it is the
poor, the sick, the ignorant, the powerless and the hated who are executed'. "So
also Governor Disalle of Ohio State speaking from his personal experience with
the death penalty said :
During my experience as Governor of Olio, I found the men in death row had
one thing in common; they were penniless. There were other common denominators,
low mental capacity, little or no education, few friends, broken homes-but the
fact that they had no money was a principal factor in their being condemned to
death....
311. The same point was stressed by Krishna Iyer, J. in Rajendra Prasad's
case (supra) with his usual punch and vigour and in hard hitting language
distinctive of his inimitable style :
Who, by and large, are the men whom the gallows swallow. The white-collar
criminals and the corporate criminals whose wilful economic and environmental
crimes inflict mass deaths or who hire assassins and murder by remote control ?
Rarely. With a few exceptions, they hardly fear the halter. The feuding
villager, heady with country liquor, the striking workers desperate with defeat,
the political dissenter and sacrificing liberator intent on changing the social
order from satanic misrule, the waifs and strays whom society has hardened by
neglect into, street toughs, or the poor householder-husband or wife driven by
dire necessity or burst of tantrums-it is this person who is the morning meal of
the macabre executioner.
"Historically speaking, capital sentence perhaps has a class bias and
colour bar, even as criminal law barks at both but bites the proletariat to
defend the proprietariat a reason which, incidentally, explains why corporate
criminals including top executives whom by subtle processes, account for slow or
sudden killing of large members by adulteration, smuggling, cornering, pollution
and other invisible operations, are not on the wanted list and their offending
operations which directly derive profit from mafia and white-collar- crimes are
not visited with death penalty, while relatively lesser delinquencies have, in
statutory and forensic rhetoric, deserved the extreme penalty.
There can be no doubt that death penalty in its actual, operation is
discriminatory, for it strikes mostly against the poor and deprived sections of
the community and the rich and the affluent usually escape, from its clutches.
This circumstance also adds to the arbitrary and capricious nature of the death
penalty and renders it unconstitutional as being violative of Articles 14 and
21.
312. Before I part with this topic I may point out that only way in which
the, vice of arbitrariness in the imposition of death penalty can be removed is
by the law providing that in every case where the death sentence is confirmed by
the High Court there shall be an automatic review of the.death sentence by the
Supreme Court sitting as a whole and the death sentence shall not be affirmed or
imposed by the Supreme Court unless it is approved unanimously by the entire
court sitting enbanc and the only exceptional cases in which death sentence may
be affirmed or imposed should be legislatively limited to those where the
offender is found to be so depraved that it is not possible to reform him by any
curative or rehabilitative therapy and even after his release he would be a
serious menace to the society and therefore in the interest of the society he is
required to be eliminated. Of course, for reasons I have already discussed such
exceptional cases would be practically nil because it is almost impossible to
predicate of any person that he is beyond reformation or redemption and
therefore, from a practical point of view death penalty would be almost non-
existent. But theoretically it may be possible to say that if the State is in a
position to establish positively that the offender is such a social monster that
even after suffering life imprisonment and undergoing reformative and
rehabilitative therapy, he can never be reclaimed for the society, then he may
be awarded death penalty. If this test is legislatively adopted and applied by
following the procedure mentioned above, the imposition of death penalty may be
rescued from the vice of arbitrariness and caprice. But that is not so under the
law as it stands to-day.
313. This view taken by me in regard to the constitutional validity of the
death penalty under Articles 14 and 21 renders it unnecessary for me to consider
the challenge under Article 19 and I do not therefore propose to express any
opinion on that question. But since certain observations have been made in the
majority judgment of Sarkaria, J. which seem to run counter to the decisions of
this Court in R.C Cooper v. Union of India and Maneka Gandhi's case (supra). I
am constrained to add a few words voicing my respectful dissent from those
observations. Sarkaria, J. speaking on behalf of the majority judges has
observed in the present case that the 'form and object test' or 'pith and
substance rule' adopted by Kania, C.J. and Fazal Ali, J in A.K. Gopalan v. State
of Madras (supra) is the same as the 'test of direct and inevitable effect'
enunciated in R.C. Cooper's case and Maneka Gandhi's case and it has not been
discarded or jettisoned by these two decisions. I cannot look with equimanity on
this attempt to resucitate the obsolute 'form and object test' or 'pith and
substance rule' which was evolved in A.K Gopalan's case and which for a
considerable number of years dwarfed the growth and development of fundamental
rights and cut down their operational amplitude. This view proceeded on the
assumption that certain articles in the Constitution exclusively deal with
specific matters and where the requirement of an article dealing with a
particular matter in question is satisfied and there is no infringement of the
fundamental right guaranteed by that article, no recourse can be had to a
fundamental right conferred by another article and furthermore, in order to
determine which is the fundamental right violated, the court must consider the
pith and substance of the legislation and ask the question: what is the object
of the legislature in enacting the legislation ; what is the subject matter of
the legislation and to which fundamental right does it relate. But this doctrine
of exclusivity of fundamental rights was clearly and unequivocally over-ruled in
R.C. Cooper's case by a majority of the Full Court, Ray, J. alone dissenting and
so was the 'object and form test' or 'pith and substance rule' laid down in A.K.
Gopalan's case, Shah, J. speaking on behalf of the majority Judges said in R.C.
Cooper's case (supra)
...it is not the object of the authority making the law impairing the right
of a citizen, nor the form of action that determines the protection he can
claim; it is the effect of the law and of the action upon the right which
attract the jurisdiction of the Court to grant relief. If this be the true view,
and we think it is, in determining the impact of State action upon
constitutional guarantees which are fundamental, it follows that the extent of
protection against impairment of a fundamental right is determined not by the
object of the Legislature nor by the form of the action, but by its direct
operation upon the individual's rights.
"We are of the view that the theory that the object and form of the State
action determine the extent of protection which the aggrieved. party may claim
is not consistent with the constitutional scheme....
"In our judgment, the assumption in A.K. Gopalan's case that certain
articles in the Constitution exclusively deal with specific matters and in
determining whether there is infringement of the individual's guaranteed rights,
the object and the form of the State action alone need be considered and effect
of the laws on fundamental rights of the individuals in general will be ignored
cannot be accepted as correct.
This view taken in R.C. Cooper's case has since then been consistently
followed in several decisions of which I may mention only a few, namely, Shambhu
Nath Sarkar v. State of West Bengali [1978] 1 S.C.R. 856; Haradhan Sana v. State
of West Bengal; Khudiram Das v. State of West Bengali and Maneka Gandhi's case
(supra). I cannot therefore assent to the proposition in the majority judgment
that R.C. Cooper's case and Maneka Gandhi's case have not given a complete go by
to the test of direct and indirect effect, some times described as 'form and
object test' or 'pith and substance rule' evolved by Kania, C.J. and Fazal Ali,
J. in A.K. Gopalan's case and that thepith and substance rule' still remains a
valid rule for resolving the question of the constitutionality of a law assailed
on the ground of its being violative of a fundamental ri ght. Nor can I agree
with the majority judgment when it says that it is Article 21 which deals with
the right to life and not Article 19 and Section 302 of the Indian Penal Code is
therefore not required to be tested on the touchstone of any one or more of the
clauses of Article 19. This approach of the majority judgment not only runs
counter to the decision in R.C. Cooper's case and other subsequent decisions of
this Court including Maneka Gandhi's case but is also fraught with grave danger
inasmuch as it seeks to put the clock back and reverse the direction in which
the law is moving towards realisation of the full potential of fundamental
rights as laid down in R.C. Cooper's case and Maneka Gandhi's case. It is
significant to note that the doctrine of exclusivity enunciated in A.K.
Gopalan's case led to the property rights under Article 19(1)(f) and 31 being
treated as distinct and different rights traversing separate grounds, but this
view, was over turned in Kochune's case where this Court by a
majority held that a law seeking to deprive a person of his property under
Article 31 must be a valid law and it must therefore meet the challenge of other
fundamental rights including Article 19(1)(f). This Court over ruled the
proposition laid down in State of Bombay v. Bhanji Munji that Article 19(1)(f)
read with Clause (5)
postulates the existence of property which can be enjoyed and therefore if
the owner is deprived of his property by a valid law under Article 31, there can
be no question of exercising any rights' under Article 19(1)(f) in respect of
such property. The court ruled that even in a law seeks to deprive a person of
his property under Article 31, it must still, in order to be valid, satisfy the
requirement of Article 19(1)(f) read with Clause (5). If this be the true
position in regard to the inter-relation between Article 19(1)(f) and Article
31, it is difficult to see why a law authorising deprivation of the right to
life under Article 21 should not have to meet the test of other fundamental
rights including those set out in the different clauses of Article 19. But even
if Section 302 in so far as it provides for imposition of death penalty as
alternative punishment has to meet the challenge of Article 19, the question
would still remain whether the 'direct and inevitable consequence' of that
provision is to affect any of the rights guaranteed under the article. That is a
question on which I do not wish to express any definite opinion. It is
sufficient for me to state that the 'object and form test' or the 'pith and
substance rule' has been completely discarded by the decision in R.C. Cooper's
case and Maneka Gandhi's case and it is now settled law that in order to locate
the fundamental right violated by a statute, the court must consider what is the
direct and inevitable consequence of the statute. The impugned statute may in
its direct and inevitable effect invade more than one fundamental right and
merely because it satisfies the requirement of one fundamental right, it is not
freed from the obligation to meet the challenge of another applicable
fundamental right.
314. These are the reasons for which I made my order dated May 9, 1980
declaring the death penalty provided under Section 302 of the Indian Penal Code
read with Section 354 Sub-section (3) of the CrPC, 1973 as unconstitutional and
void as being violative of Articles 14 and 21.1 must express my profound regret
at the long delay in delivering this judgment but the reason is that there was a
considerable mass of material which had to be collected from various sources and
then examined and analysed and this took a large amount of time.