PETITIONER:

BACHAN SINGH ETC. ETC.

Vs.

RESPONDENT:

STATE OF PUNJAB ETC. ETC.

DATE OF JUDGMENT16/08/1982 BENCH:

BHAGWATI, P.N.

BENCH:

BHAGWATI, P.N.

CHANDRACHUD, Y.V. ((CJ)

SARKARIA, RANJIT SINGH GUPTA, A.C.

UNTWALIA, N.L.

CITATION:

1982 AIR 1325 1983 SCR (1) 145

1982 SCC (3) 24 1982 SCALE (1)713 CITATOR INFO :

E 1983 SC1155 (3,4,5,6,8,9,12,13,23,27,28,29 RF 1989 SC 653 (17) E&D 1989 SC1335 (10)

R 1989 SC2299 (2,3)

RF 1991 SC 345 (6,11)

ACT:

(A) Death Penalty, whether constitutionally valid ?-

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

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

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

HEADNOTE:

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

^

HELD: Per majority.

Sarkaria, J. [On behalf of Chandrachud, C.J., A.C.

Gupta, N.L. Untwalia, JJ. and on his own behalf].

The right to life is not one of the rights mentioned in Article 19 (1) of the Constitution and the six fundamental freedoms guaranteed under Article 19(1) are not absolute rights. The condition precedent for the applicability of Article 19 is that the activity which the impugned law prohibits and penalises, must be within the purview of and protection of Article 19 (1). [173 E, 174 A, B-C]

146 State of Bombay v. R.M.D. Chamarbaugwala, [1957] SCR

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

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

[181 D-H, 182 A-B]

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

19. [182 B-E]

R.S. Cooper v. Union of India, [1970] 3 SCR 530; Maneka Gandhi v. Union of India, [1978] 2 SCR 621; Dr. Ram Manohar Lohia’s case, [1966]1 SCR 709; Hardhan Saha and Anr. v.

State of West Bengal, [1975] 1 SCR 778@ 784, followed.

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

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

[189 B-D]

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

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

4. Section 299 defines "culpable homicide" and section

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

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

The onus of satisfying the requirements of Article 19, assuming that the Article applies. lies on the person challenging its validity. There is initial presumption in favour of the constitutionality of the state and the burden of rebutting that presumption is thrown on the party who challenges the constitutionality on the ground of Article 19. Behind the view that there is a presumption of constitutionality of a statute and the onus to rebut the same lies on those who challenge the legislation, is the rationale of judicial restraint, a recognition of the limits of judicial review, a respect for the boundaries of legislative and judicial functions, and the judicial responsibility to guard the trespass from one side or the other. The primary function of the courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policy-making. Even where the burden is on the State to show that the restriction imposed by the impugned statute is reasonable and in public interest, the extent and the manner of discharge of the burden necessarily depends on the subject-matter of the legislation, the nature of the inquiry, and the scope and limits of judicial review.

[192 C-D, 193 A, C-D, 194 D-E]

Saghir Ahmad v. State of Uttar Pradesh, [1955] 1 SCR

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

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

[215 E-H, 216 A]

149

6. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views.

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

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

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

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

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

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

[238 B, G-H, 239 A-B]

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

G, A-B]

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

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

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

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

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

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

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

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

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

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

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

[251 G-H, 252 A-C]

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

355, overruled.

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

Per Bhagwati J. (Dissenting)

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

[258 A-B]

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

153 destroying the rule of law, and increasing the labour of judges. But this rule of adherence to precedents; though a necessary tool "in the legal smithy," is only a useful servant and can not be allowed to turn into a tyrannous master. If the rule of stare decisis were followed blindly and mechanically, it would dwarf and stultify the growth of the law and affect its capacity to adjust itself to the changing needs of the society. [258 B-C, D,E,F]

1:3 There are certain issues which transcend technical considerations of stare decisis and if such an issue is brought before the Court, it would be nothing short of abdication of its constitutional duty for the Court to refuse to consider such issue by taking refuge under the doctrine of stare decisis. The Court may refuse to entertain such an issue like the constitutional validity of death penalty because it is satisfied that the previous decision is correct but it cannot decline to consider it on the ground that it is barred by the rule of adherence to precedents. [259 E-G]

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

[259 G-H, 260 A-D]

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

State of Washington v. Dawson and Company 264 U.S. 646;

68 L. Edn. 219 dissenting judgment quoted with approval.

Maneka Gandhi v. Union of India, [1978] 2 SCR 663 applied.

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

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

947. not followed.

154

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

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

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

[268 C-D, G-H]

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

155

2:6. The rule of law has much greater vitality under our Constitution than it has in other countries like the United Kingdom which has no constitutionally enacted Fundamental Rights. The rule of law has really three basic and fundamental assumptions; one is that law making must be essentially in the hands of a democratically elected legislature, subject of course to any power in the executive in an emergent situation to promulgate ordinance effective for a short duration while the legislation is not in session as also to enact delegated legislation in accordance with the guidelines laid down by the legislature; the other is that, even in the hands of a democratically elected legislature, there should not be unfettered legislative power; and lastly there must be an independent judiciary to protect the citizen against excesses of executive and legislative power and we have in our country all these three elements essential to the rule of law. It is plain and indisputable that under our Constitution law cannot be arbitrary or irrational and if it is, it would be clearly invalid, whether under Article 14 or Article 19 or Article

21, whichever be applicable. [275 E-H. 276 A-B]

Minerva Mill’s case [1981] 1 SCR 206; Maneka Gandhi’s case [1978] 2 SCR 621; Airport Authority of India’s case [1979] 3 SCR 1014; A.K. Gopalan’s case [1950] 3 SCR 88; F.C.

Mullen’s case [1981] 2 SCR 516 referred to.

2:7. The Constitution does not in so many terms prohibit capital punishment. In fact, it recognises death sentence as one of the penalties which may be imposed by law. Apart from Article 21, Clause (C) of Article 72 also recognises the possibility of a sentence of death being imposed on a person convicted of an offence inasmuch as it provides that the President shall have the power to suspend, remit or commute the sentence of any person who is convicted of an offence and sentenced to death. Therefore, the imposition of death sentence for conviction of an offence is not in all cases forbidden by the Constitution. But that does not mean that the infliction of death penalty is blessed by the Constitution or that it has the imprimatur or seal of approval of the Constitution. The Constitution is not a transient document but it is meant to endure for a long time to come and during its life, situations may arise where death penalty may be found to serve a social purpose and its prescription may not be liable to be regarded as arbitrary or unreasonable and therefore to meet such situations, the Constitution had to make a provision and this it did in Article 21 and clause (c) of Article 72 so that, even where death penalty is prescribed by any law and it is otherwise not unconstitutional, it must still comply with the requirement of Article 21 and it would be subject to the clemency power of the President under clause (c) of Article 72. [276 D-H, 277 A-B]

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

156 rule, death sentence may be imposed. This is left entirely to the unguided discretion of the court, a feature, which has lethal consequences so far as the constitutionality of death penalty is concerned. [277 C-D, 278 E-G]

Rajendra Prasad v. State of U.P. [1979] 3 S.C.R. 646, referred to.

2:9. The problem of constitutional validity of death penalty cannot be appreciated in its proper perspective without an adequate understanding of the true nature of death penalty and what it involves in terms of human anguish and suffering. In the first place, death penalty is irrevocable; it cannot be recalled. It extinguishes the flame of life for ever and is plainly destructive of the right to life, the most precious right of all, a right without which enjoyment of no other rights is possible. If a person is sentenced to imprisonment, even if it be for life, and subsequently it is found that he was innocent and was wrongly convicted, he can be set free. Of course, the imprisonment that he has suffered till then cannot be undone and the time he has spent in the prison cannot be given back to him in specie but he can come back and be restored to normal life with his honour vindicated, if he is found innocent. But that is not possible where a person has been wrongly convicted and sentenced to death and put out of existence in pursuance of the sentence of death. In his case, even if any mistake is subsequently discovered, it will be too late, in every way and for every purpose it will be too late, for he cannot be brought back to life. The execution of the sentence of death in such a case makes miscarriage of justice irrevocable. [281 F-H, 282 A-D]

2:10. Howsoever careful may be the procedural safeguards, erected by the law before death penalty can be imposed, it is impossible to eliminate the chance of judicial error. No possible judicial safeguards can prevent conviction of the innocent. It is indeed a very live possibility and it is not at all unlikely that so long as death penalty remains a constitutionaly valid alternative, the Court or the State acting through the instrumentality of the Court may have on its conscience the blood of an innocent man. [283 D-E. G-H]

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

Furman v. Georgia 408 US 238; In Re Kemmler 136 US 436;

In Re Medley 134 US 160; quoted with approval.

2:12. Penological goals also do not justify the imposition of death penalty for the offence of murder. The prevailing standards of human decency are also incompatible with death penalty. The standards of human decency with reference to which the proportionality of the punishment to the offence is required to be judged vary from society to society depending on the cultural and spiritual

157 tradition of the society, its history and philosophy and its sense of moral and ethical values. [302 A-B]

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

2:13 The historical course through which death penalty has passed in the last 150 years shows that the theory that death penalty acts as a greater deterrent than life imprisonment is wholly unfounded. Even the various studies carried out clearly establish beyond doubt that death penalty does not have any special deterrent effect which life sentence does not possess and that in any event there is no evidence at all to suggest that death penalty has any such special deterrent effect. [316 A, 321 G-H]

2:14. Death penalty as provided under section 302 of the Indian Penal Code read with section 354 sub-section (3) of the Code of Criminal Procedure, 1973 does not sub-serve any legitimate end of punishment, since by killing the murderer it totally rejects the reformation purpose and it has no additional deterrent effect which life sentence does not possess and it is therefore not justified by the deterrence theory of punishment. Though retribution or denunciation is regarded by some as a proper end of punishment, it cannot have any legitimate place in an enlightened philosophy of punishment. Therefore, death penalty has no rational penological purpose and it is arbitrary and irrational and hence violative of Articles 14 and 21 of the Constitution.

[340 D-F]

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

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

2:16. Actually section 354 (3) of the Criminal Procedure Code makes the exercise of discretion more difficult and uncertain. It is left to the Judge to grope in the dark for himself and in the exercise of his unguided and unfettered discretion decide what reasons may be considered as ’special reasons’ justifying award of death penalty and whether in a given case any such special reasons exist which should persuade the Court to depart from the normal rule and inflict death penalty on the accused. There being no legislative policy or principle to guide the Court in exercising its discretion in this delicate and sensitive area of life and death, the exercise of discretion of the Court is bound to vary from judge to judge. What may appear as special reasons to one judge may not so appear to another and the decision in a given case whether to impose the death sentence or to let off the offender only with life imprisonment would, to a large extent, depend upon who is the judge called upon to make the decision. The reason for his uncertainty in the sentencing process is two-fold. Firstly, the nature of the sentencing process is such that it involves a highly delicate task calling for skills and talents very much different from those ordinarily expected of lawyers. Even if considerations relevant to capital sentencing were provided by the legislature, it would be a difficult exercise for the judges to decide whether to impose the death penalty or to award the life sentence. But without any such guidelines given by the legislature, the task of the judges becomes much more arbitrary and the sentencing decision is bound to vary with each judge.

Secondly, when unguided discretion is conferred upon the Court to choose between life and death, by providing a totally vague and indefinite criterion of ’special reasons’ without laying down any principles or guidelines for determining what should be considered to be ’special reasons’, the choice is bound to be influenced by the subjective philosophy of the judge called upon to pass the sentence and on his value system and social philosophy will depend whether the accused shall live or die. No doubt the judge will have to give ’special reasons’ if he opts in favour of inflicting the death penalty, but that does not eliminate arbitrariness and caprice, firstly because there being no guidelines provided by the legislature, the reasons which may appeal to one judge as ’special reasons’ may not appeal to another, and secondly, because reasons can always be found for a conclusion that the judge instinctively wishes to reach and the judge can bona fide and conscientiously find such reasons to be ’special reasons’. It is now recognised on all hands that judicial conscience is not a fixed conscience; it varies from judge to judge depending upon his attitudes and approaches, his predilections and prejudices, his habits of mind and thought and in short all that goes with the expression "social philosophy". Further, the various decisions in which special reasons have been given singly and cumulatively indicate not merely that there is an enormous potential of arbitrary award of death penalty by the High Court and the Supreme Court but that, in fact, death sentence have been awarded arbitrarily and freakishly.

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

343 A-B, 353 E-F]

2:17. But where the discretion granted to the Court is to choose between life and death without any standards or guide-lines provided by the legislature, 159 the death penalty does become arbitrary and unreasonable. The death penalty is qualitatively different from a sentence of imprisonment. Whether a sentence of imprisonment is for two yeaes or five years or for life, it is qualitatively the same, namely, a sentence of imprisonment, but the death penalty is totally of different. It is irreversible; it is beyond recall or reparation; it extinguishes life. It is the choice between life and death which the court is required to make and this is left to its sole discretion unaided and unguided by any legislative yardstick to determine the choice. [356 G-H. 357 A-B]

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

D]

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

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

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

State of Madras v. V.J. Row [1952] SCR 597. Shagir Ahmed v. State of U.P. [1955] 1 SCR 707 followed.

Khyerbari Tea Co. v. State of Assam [1964] 5 SCR 975;

B. Banerjee v. Anita Pan [1975] 2 SCR 774; Ram Krishna Dalmia v. S.R. Tandolkar & Ors. [1959] SCR 279; State of Bombay v. R.M.D. Chamarbaugwala [1957] SCR 874; Mohd. Hanif v. State of Bihar [1959] SCR 629; discussed and distinguished.

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

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

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

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

161 correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It would be a wise rule to adopt to presume the constitutionality of a statute unless it is shown to be invalid. But this rule is not a rigid inexorable rule applicable at all times and in all situations. There may conceivably be cases where having regard to the nature and character of the legislation. the importance of the right affected and the gravity the injury caused by it and the moral and social issue involved in the determination, the Court may refuse to proceed on the basis of presumption of constitutionality and demand from the State justification of the legislation with a view to establishing that it is not arbitrary or discriminatory. [296 G-H, 298 C-E]

The burden rests on the State to establish by producing material before the Court or authorities, that death penalty has greater deterrent effect than life sentence in order to justify its imposition under the law. If the State fails to discharge this burden which rests upon it, the Court would have to hold that death penalty has not been shown to have greater deterrent effect and it does not therefore serve a rational legislative purpose. [315 F-H]