Judgement

BHAGWATI, J. :— These writ petitions challenge the constitutional validity of S . 302 of the Penal Code read with S. 354, sub-sec. (3) of the Criminal P.C. 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 S. 302 of the Penal Code read with Section 354 sub-& (3) of the Criminal P. C. 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 S. 302 of the Indian Penal Code read with S. 354 sub-sec. (3) of the Code, of Criminal Procedure cannot be sustained. I am conscious that my learned brethren on the Bench who constitute the majority have taken a different view and upheld the constitutional validity of the death penalty but, with the greatest respect to them and in all humility, I cannot persuade myself to concur with the view taken by them. Mine is unfortunately a solitary dissent and it is therefore with a certain amount of hesitation that I speak but my initial diffidence is overcome by my deep and abiding faith in the dignity of man and worth of the human person and passionate conviction about the true spiritual nature and dimension of man. I agree with Bernard Shaw that "Criminals do not die by the hands of the law. They die by, the hands of other men. Assassination on the scaffold is the worst form of assassination because there it is invested with the approval of the society................. Murder and capital punishment are not opposites that cancel one another but similars that breed their kind." It was the Father ad 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 Arts. 14, 19, 21 of the Constitution

2. Before I proceed to consider the various constitutional issues arising our of the challenge to the validity of the death penalty, I must deal with a preliminary objection raised an 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., AIR 1973 SC 947 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 Jagmohans case (supra) and the same issue, once decided in Jagmohans 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 Jagmohans case (supra) and this Court by a unanimous judgment held it to be constitutionally valid and, th