Rajendra Prasad Vs. State of Uttar
Pradesh [1979] INSC 33 (9 February 1979)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
DESAI, D.A.
SEN, A.P. (J)
CITATION: 1979 AIR 916 1979 SCR (3) 78 1979
SCC (3) 646
CITATOR INFO:
R 1979 SC 964 (1,23,27,28,29) E 1979 SC1384
(2,10,11,13,14,15,20,22,23,24, O 1980 SC 898 (4,5,6,7,8,142,198,202) MR 1982
SC1325 (19,20,26,38,40,61,67,72,78) RF 1983 SC 361 ((2)10)
ACT:
Penal Code-5. 302-Scope of-death
Sentence-When should be award
HEADNOTE:
(Per majority-Krishna Iyer and Desai, JJ.)
1. The only question before the Court is as
to when and why shall capital punishment be pronounced on a murderer and why
not in other cases, within the confines of the Code.
Urgency to the solution is obvious. The overt
ambivalence and covert conflict among judges concerning continued resort to the
death sentence mirrors the uncertainties and conflicts of values in the
community itself. [89G & 90D]
2. Section 302 of the IPC throws little light
on when the court shall be the sentence of why the lesser penalty shall be
preferred. Since law reflects life, new meanings must permeate the Penal Code.
Deprivation of life under our system is too fundamental to be permitted except
on the gravest ground and under the strictest scrutiny. [90F: 94C- D]
3. To say that discretion of the Judge
passing the sentence under s. 302 IPC is guided by well-recognized principles
shifts the issue to what those recognised rules are. The big margin of,
subjectivism. a preference for old precedents, theories of modern penology,
behavioral emphasis or social antecedents, judicial hubris or human rights
perspectives, reverence for outworn social philosophers-this plurality of
forces plays a part in swining the pendulum of sentencing justice erratically.
Until Parliament speaks, this Court cannot be silent. [95; 97G]
4. Executive commutation is no substitute for
judicial justice, at best it is administrative policy and at worst
pressure-based partiality. The criteria for clemency are often different [99C]
5. In so far as s. 302 IPC is concerned
several attempts had been made to restrict or remove death penalty but never to
enlarge its application. Parliamentary pressure has been to cut down death
penalty, although the section formally remains the same. In the case of the Criminal
Procedure Code the legislative development has shifted the punitive centre of
gravity from life taking to life sentence. In other words, the legislative
trend seems to be while formerly the rule was to sentence to death a person who
is convicted for murder, it is now to impose a lesser sentence for reasons to
be recorded in writing. Formerly, capital punishment was to be imposed unless
special reasons could be found to justify the lesser sentence. After 1955
courts were left equally free to award either sentence. The 1973 Code has made
an an mistakable shift in legislative emphasise under which life imprisonment
for murder is the rule and capital sentence the exception for reasons to be
stated. [101D:104B-C] 79
6. Criminologists all the world over, however,
argued that death has decisively lost the battle, and even in our Codes it has
shrunk into a weak exception. What are the exceptional cases ? Personal story
of an actor in a shocking murder, if considered, may bring tears and soften the
sentence. He might have been a tortured child, an ill- treated orphan, a
jobless man or the convict's poverty might be responsible for the crime. [106G:
107B] 7. In the post Constitution period s. 302 IPC and s.
345(3) of the Cr. P.C. have to be read in the
humane light of Parts III and IV illumined by the Preamble to the Constitution.
In other words the sacrifice of a life sentence is sanctioned only if otherwise
public interest and social defence and public order would be smashed
irretrievably. Such extraordinary grounds alone constitutionally qualify as
special reasons. One stroke of murder hardly qualifies for this drastic
requirement, however gruesome the killing may be. The searching question the
Judge must put to himself is what is so-extra-ordinari- ly reasonable as to
validate the wiping out of life itself and with it the great rights which
inhere in him in the totality of facts. [121F; 110E-F]
8. The retributive theory has had its day and
is no longer valid. Deterrence and reformation are the primary social goals
which make deprivation of life and liberty reasonable as penal penacea. [122C]
9. The current ethos, with its strong
emphasis on human rights and against death penalty, together with the ancient
strains of culture spanning the period from Buddha to Gandhi must ethically
inform the concept of social justice which is a paramount principle and
cultural paradigm of our Constitution [l22C-D]
10. The personal and social, the motivational
and physical circumstances, of the criminal are relevant factors in adjudging
the penalty as clearly provided for under the Code of 1973. So also the intense
suffering already endured by prison torture or agonishing death penalty hanging
over head consequent on the legal process. [112D-El
11. Although the somewhat obsolescent
Mc'Naughten Rules codified in s. 84 of the Penal Code alone are exculpatory,
mental imbalances, neurotic upsets and psychic crises may be extenuatory and
the sense of diminished responsibility may manifest itself in judicial clemency
of commuted life incarceration. [l22F]
12. The social justice which the Preamble and
Part IV (Art. 38) highlight, as paramount in the governance of the country has
a role to mould the sentence. If the murderous operation of a die-hard criminal
jeopardizes social security in a persistent, planned and perilous fashion then
his enjoyment of fundamental rights may be rightly annihilated.
One test for imposition of death sentence is
to find out whether the murderer offers such a traumatic threat to the survival
of social order. Some of the principles are-never hang unless society or its
members may lose more lives by keeping alive an irredeemable convict. Therefore
social justice projected by Art. 38 colours the concept of reasonableness in
Art. 19 and non-arbitrariness in Art. 14.
This complex of articles validates death
penalty in limited cases. Maybe train dacoity and bank robbery bandits reaching
menacing proportions, economic offenders profit killing in an intentional and
organised way, are such categories in a Third World setting. [112D: 114C: 112G]
80
13. Survival of an orderly society without
which the extinction of human rights is a probability compels the higher
protection of the law to those officers who are charged with the fearless and
risky discharge of hazardous duties in strategic situations. Those officers of
law, like policemen on duty or soldiers and the like have to perform their
functions even in the face of threat of violence, sometimes in conditions of
great handicap. If they are killed by designers of murder and the law does not
express its strong condemnation in extreme penalisation, justice to those
called upon to defend justice may fail. This facet of social justice also may
in certain circumstances and at certain stages of societal life demand death sentence.
[123D-E]
14. Special reasons necessary for imposing
death penalty must relate not to the crime as such but to the criminal. [124E]
Jagmohan Singh v. State of U.P., [1973] 1 SCC 20; Ediga Annama v. State of
A.P., [1974] 4 SCC, 443; Sunil Batra v.
Delhi Admn., [1978] 4 SCC 494 at 569 &
572; referred to.
Capital punishment in India; The Impact of
the Ediga Anamma, by Prof. A. R. Blackshield-(July 1977), referred to.
Rajendra Prasad's case:
The family to which the appellant and the
deceased belonged were on inimical terms. The appellant who was the son of one
of the families murder ed the deceased. After some years in the prison, he was
released on Gandhi Jayanti day. On return some minor incident ignited his
latent feud and he stabbed to death a friend of the opposite family, he was
sentenced to death.
The second murder is not to be confounded
with the persistent potential for murderous attacks by the murderer.
This was not-a menace to the social order but
a specific family feud. Here was not a youth of controllable violent
propensities against the community but one whose paranoid preoccupation with a
family quarrel goaded him to go the rival. So long as the therapeutic processes
are absent from prisons these institutions, for from being the healing hope of
society, prove hardening schools to train desperate criminals. Desperate
criminal is a convenient description to brand a person. Seldom is the other
side of the story exposed to judicial view. There is nothing on record to
suggest that the appellant was beyond redemption; nothing on record hints at
any such attempt inside the prison. The appellant showed no incurable
disposition to violent outbursts against his fellow-men. There is therefore, no
special reason to hang him. He should be awarded life imprisonment.
Kunjukunju's case:
The appellant, a married man with two
children, developed illicit sex relations with a fresh girl. In order to win
her hand he murdered his wife and two children. There is no evidence to show
that he was a desperate hedonist or randy rapist. He is not a social security
risk altogether beyond salvage by therapeutic life sentence. Death sentence is
commuted to life imprisonment.
Dubey's case:
The appellant, a young man, aged about 20,
stabbed to death three members of the family with whom his family had a quarrel
over partition of 81 property. It is illegal in this case to award capital
sentence without considering correctional possibilities inside prison. He was
not a murderer born but made by the passion of family quarrel. He could be
saved for society with correctional techniques and directed into repentance. A
family feud, an altercation, a sudden passion, although attended with
extraordinary cruelty, young and malleable age, reasonable prospect of
reformation and absence of any conclusive circumstance that the assailant is a
habitual murderer or given to chronic violence-these catenate of circumstances
bearing on the offender call fol the lesser sentence.
Sen l. (Dissenting)
1. (a) It is constitutionally and legally impermissible
for the Supreme Court while hearing an appeal by special leave under Art. 136
of the Constitution, on a question of sentence, to restructure s. 302 of the Indian
Penal Code, 1860 or s. 354, sub-s. (3) of the Code of Criminal Procedure 1973,
so as to limit the scope of the sentence of death provided for the offence of
murder under s. 302. [131F-G] (b) The question whether the scope of the death
sentence should be curtailed or not, is one for the Parliament to decide. The
matter is essentially of political expediency and, as such, it is the concern
of statesmen and, therefore, properly the domain of the legislature, not the
judiciary. [137E] (c) In an appeal confined to sentence under Article 136 of
the Constitution, Supreme Court has not only the power but as well as the duty
to interfere if it considers that the appellant should be sentenced
'differently', that is, to set aside the sentence of death and substitute in
its place the sentence of imprisonment for life, where it considers, taking the
case as a whole, the sentence of death to be erroneous, excessive or indicative
of an improper exercise of discretion; but at the same time, the Court must
impose some limitations on itself in the exercise of this broad power. In
dealing with a sentence which has been made the subject of an appeal, the Court
will interfere with a sentence only where it is 'erroneous in principle'. The
question, therefore, in each case is whether there is an 'error of principle'
volved.[134G-Hl (d) The Court has the duty to see that on the particular facts
and circumstances of each case the punishment fits the crime. Mere
compassionate sentiments of a humane feelings cannot be a sufficient reason for
not confirming a sentence of death but altering it into a sentence of
imprisonment for life. In awarding sentence, the Court must, as it should,
concern itself with justice, that is, with unswerving obedience to established
law. It is, and must be, also concerned with the probable effect of its
sentence both on the general public and the culprit. Judges are not concerned
with the morales or ethics of a punishment. It is but their duty to administer
the law as it is and not to say what it should be. It is not the intention of
the Supreme Court to curtail the scope of the death sentence` under s. 302 by a
process of judicial construction inspired by the personal views [35B: 137D-E]
2. It is also-not legally permissible for
this Court while hearing an appeal in a particular case where a capital
sentence is imposed, to define the expression "Special reasons"
occurring in sub-s. (3) of s. 354 of the Code, in such 82
virtually has the effect of abolishing the
death sentence.
[137H] (a) Under s. 354, sub-s. (3) of the
Code of Criminal Procedure, 1973, the Court is required to state the reasons
for a sentence awarded, and in the case of imposition of a sentence of death
the Judge has to record "special reasons" for imposing death
sentence. Punishment for murder as a rule should be life imprisonment and death
sentence is only an exception. [l59A] (b) It is neither feasible nor legally
permissible for this Court to give a definite connotation to the expression
"special reasons" occurring in s. 354 sub-s. (3) of the Code of
Criminal Procedure, 1973. It is difficult to put "special reasons" in
a straight-jacket. Each case must depend on its own particular facts. The
question of sentence must be left to the discretion of the Sessions Judge
trying the accused.
Under the present Code, a trial for murder is
divided into two stages. There is a bifurcated trial. The first part of the
trial is directed solely to the issue of guilt or innocence, and concludes with
the finding of the Sessions Judge on that issue. At the end of the trial when
he comes to a conclusion of guilt, he has to adjourn the case for hearing the
accused on the question of sentence. [159C-D] Section 235, sub-s. (2) of the
Code specifically provides for an opportunity of hearing to the accused on the
question of sentence after a verdict of guilt is recorded against him. The
burden is upon the prosecution to make out a case for imposition of the extreme
penalty. Where a sentence of death is passed, the Sessions Judge has to make a
reference to the High Court under s. 366, sub-s. (1) of the Code. Under s. 367,
sub-s. (1) if the High court thinks a further inquiry should be made into, or
additional evedence taken upon, any point bearing upon the guilt or innocence
of the convicted person, it may make such inquiry or take such evidence itself,
or direct it to be made or taken by the Court of Sessions. In a case submitted
under s.
366, the High Court under s. 368(a) may
either confirm the sentence, or pass any other sentence, i.e. reduce the
sentence of death into a sentence of imprisonment for life.
thereafter an appeal lies to this Court by a
special leave under Article 136 on the question of sentence. [159E-H] Failing
the appeal, there is the President's power to grant reprieve and pardon under
Article 72 (1), as well as the Governor's power of commutation under Article
161 of the Constitution which is a sovereign function. The power of the
President and of the Governor to grant reprieves and pardons is wide enough to
include the power to commute and to remit sentence of punishment. All cases of
capital punishment are closely scrutinised by the Executive at both the levels
to see whether there are such extenuating circumstances as would justify a reprieve,
and the power to commute a death sentence is freely exercised, whenever there
is some doubt as to the severity of the punishment. Under the present system
the Prerogative of Mercy in the case , of persons under sentence of death works
well and it produces results gene rally regarded as satisfactory. It helps in
mitigating the rigour of the death sentence, particularly in case of those
murderers whose execution would offend the public conscience. Very few persons
under a sentence of death-may be one or two in a year, in a State are usually
executed. It is, therefore, not proper for the Court to trench upon the
President's or the Governor's perogative to grant pardon or reprieve under
Articles 72(1) and 161 in taking 83 upon itself the task of commutation of a
death sentence, which is properly imposed, in the facts and circumstances of a
particular case, merely because there is a doubt that the Executive may commute
the sentence ultimately, or by one's views as to the utility of death penalty.
[160A-E] Balwant Sing case [1976] 2 SCR 684; Ambaram's Case 11974] 4 SCC 298
and Sarveshwar Prasad Sharma's case 11978] 1 SCR 360; referred to.
(c) Judges are entitled to hold their own
views, but it is the bounden duty of the Court to impose a proper punishment,
depending upon the degree of criminality and the desirability to impose such
punishment as a measure of social necessity, as a means of deterring other
potential offenders. It is only in very grave cases where it is a crime against
the society and the brutality of the crime shocks the judicial conscience that
the Court has the power, as well as the duty, to impose the death sentence. In
view of these adequate safeguards, it can hardly be asserted that the sentence
of death provided for an offence of murder punishable under s. 302, is
'dehumanizing' or that it is 'unnecessary'. Where the crime is cruel and
inhuman a death sentence may be called for. [160F-H] Ediga Anamma, [1974] 4
S.C.C. 443; Bishan Das & Ors. [1975] 3 S.C.C. 700; referred to.
(d) If Parliament thought it right to give to
the Judges discretion as to the sentence, they would not or ought not to shrink
from their onerous responsibility. It would not be appropriate to curtail the
ambit of their discretion by judicial process. A sentence of a wrong type, that
is, to substitute a sentence of imprisonment for life where the death sentence
is called for, causes grave miscarriage of justice. A sentence or pattern of
sentences which fails to take due account of gravity of the offence can
seriously undermine respect for law. [164E-F] (e) In the three cases there were
'special reasons' within the meaning of s. 354, sub-s. (3) of the Code of
Criminal Procedure, 1973 for the passing of the death sentence in each and,
therefore, the High Courts were justified in confirming the death sentence
passed under s. 368(a) of the Code. Indeed, they are illustrative of the rate
type of cases, that is, first degree murders, where a death sentence is usually
awarded in any civilised country.
These were cases of diobolical, cold-blooded
brutal murders of innocent persons, that is, first degree murders of extreme
brutality or depravity. The inhumanity of some of the offences defied belief
Any interference with the sentence of death, would be wholly unwarranted in
each case.
[l64G] (f) It is the duty of the Court to
impose a proper punishment depending upon the degree of criminality and
desirability to impose such punishment as a measure of social necessity as a
means of deterring other potential offenders. Failure to impose a death
sentence in such grave cases where it is a crime against the
society-particularly in cases of murders committed with extreme brutality, will
bring to nought the sentence of death provided for by s. 302 of the Indian
Penal Code, 1860. To allow the appellants to escape with the lesser punishment
after they had committed such intentional, cold-blooded deliberate and brutal
murders will deprive the law of its effectiveness and result in travesty of
justice. [l68A-B] 84 (g) In these appeals it cannot be asserted that the award
of death sentence to the appellants was "erroneous in principle". Nor
can it be said that the sentence of death passed on them was arbitrary or excessive
or indicative of an improper exercise of discretion. [167H] (i) Rajendra
Prasad's case is destructive of the theory of reformation. The 'therapeutic
touch' which it is said is the best way of preventing repetition of the offence
has been of no avail. Punishment must be designed so as to deter, as far as
possible from commission of similar offences. It should also serve as a warning
to other members of society. In both respects, the experiment of reformation
has miserably failed. There is no doubt, with the commutation of his death
sentence, the accused will commit a few more murders and he would again become
a menace to the community. [165G] (ii) In Kunjukunju Janardhan's case the
accused, who acted as a monster, did not even spare his two innocent minor
children in order to get rid of his wife and issues through her. The death
sentence was the only and appropriate penalty which should be awarded in such a
case. [166D] (h) There is no inexorable rule that either the extreme youth of
the accused or the fact that he acted in a heat of passion must always
irrespective of the enormity of the offence or otherwise be treated as a
sufficient ground for awarding the lesser punishment. The Court has to take
into consideration all the circumstances which do not merit the extreme
penalty. In the facts and circumstances of this particular case i.e. Sheo
Shanker . Dubey's case these factors cannot outweigh other considerations.
Three precious lives have been lost by the dastardly act of the accused. A
family has ` been wiped off. The death sentence was clearly called for in this
case-E firstly, as a threat or warning to deter potential murderers, and
secondly as the guarantee against the brutalisation of human nature. All facts
and circumstances, constitute 'special reasons' why the accused should be
sentenced to death. [167E-Fl
3. It cannot be said that imposition of death
penalty, except in the classes of cases indicated in the majority Judgment
would be violative of Articles 14,19 and 21 of the Constitution. Such a
question really does not arise forconsideration. [136G] (a) The citizen's right
to life and personal liberty are guaranteed by Article 21 of the Constitution
irrespective of his political beliefs, class, creed or religion. The
Constitution has, by Article 21 itself forged certain procedural safeguards for
protection to the citizen of his life and personal liberty. The idealistic
considerations as to the inherent worth and dignity of man is a fundamental and
prevasive theme of the Constitution, to guard against the execution of a
citizen for his political beliefs. [136C-D] (b) A patriot cannot be equated
with an ordinary criminal. A humanistic approach should not obscure one's sense
of realities. When a man commits a crime against the society by committing a
diabolical, cold-blooded, pre- planned murder, of an innocent person the
brutality of which shocks the conscience of the Court, he must face the
consequences of his act. Such a person forfeits his right to life. [136E3] 85
Jagmohan Singh v. State of U.P. [1973] 2 S.C.R. 541 followed.
Furman v. Georgia, 408 U.S. 238, 33 L. ed,
2nd 346 explained and differed from.
Michael de Freites v. Gaorgie Ramouter Benny,
L.R. [1975] AC 39; quoted with approval.
(c) If the Courts were to be guided by the
classification for inflicting death penalty only in the case of three
categories of criminals, namely, (i) for white collar offences (ii) for
anti-social offences, and (iii) for exterminating a person who is a menace to
the society, that is, a 'hardened murderer', the death sentence for an offence
of murder punishable under section 302, for all practical purposes would be
virtually non-existent. Unfortunately our penal laws do not provide for death
sentence for either white collar crimes or anti-social offences. As regards
'hardened' murderers, there are few to be found. Many murders unfortunately go
undetected and many a brutal murderer has to be acquitted for want of legal
evidence bringing his guilt beyond reasonable doubt. Nevertheless, when the
guilt is proved, the Court should leave aside all humanitarian considerations
if the extreme penalty is called for. A 'professional' murderer must, as matter
of course, be sentenced to death because he is menace to the society.
Whatever sympathy the Court can have should
be reserved for the victims of the crime rather than for the perpatrators.
In such cases, the law must take its course.
[162B-E; 163C- D]
4. The criminality of a crime consists not
only in the criminal act but in what that signifies. Its immediately apparent
features, the obvious damage to person or property or to public security, are
symptoms of a deeper disorder. It betokens, and it fosters, an attitude in man
to man, of reckless selfishness, decit or malice, which is incompatible in the
long run with any decent social life. In any advanced society it is, in part at
least, on account of this wider character, less easily discerned, that the
graver offence are Punished. [l43E-F] (a) All punishment properly implies moral
accountability. It is related to injury and not only to damage or danger
however greater. Capital punishment does so in an eminent degree. It is
directed against one who is ex- hypothesi an inhuman brute, i.e. it is imposed
simply to eliminate who is held to have become irretrievably, a. Iiability or a
menace to society. [142E] (b) Punishment like crime has a dual character. The
penalty which the convicted murderer incurs is not simply death, but death in
disgrace and death as a disgrace. In so far as capital punishment is a threat,
the threat consists not only in death but in infamy. Any theory which ignores
this characteristic is certainly defective. [l43F] Sir Walter Moberly The
Ethics of Punishment Ch. Xl Capital Punishment pp. 271-81: referred to.
(c) Punishment inflicted by the State in
response to a violation of criminal law has been justified in various ways
namely, as society's vengeance upon the criminal as atonement by the
wrong-doer, as a means of deterring other criminals, as protection for the
law-abiding and as a way of rehabilitating the criminal.
86 Theories of rehabilitation are largely
speculative, since there is lack of scientific evidence to support them, though
it has been influential in the development of modern penology.[144A-B]
5. (a) The capital punishment controversy
falls within the strict limits of 'independent' parliamentary law-making, and
is a typical or representative of the kind of problems that leaders of
Parliament face every day. In short, the case for abolition of the death
sentence is political, not constitutional, The Government carries the
responsibility of law and order. That is the first` and fundamental duty of any
Government. The Executive has the duty of advising the Government of the laws
it believes necessary for the national wellbeing. It is the duty of the Court,
including this Court, to administer the laws as they are. [l57D-E] (b)
Analysing the substantive merits of the cases for and against the death penalty
for murder is essentially a question for the Parliament to resolve and not for
the Supreme Court to decide. Therefore, it would not be proper for the Judges
to attempt to project their personal views in a matter which lies in the realm
of political decision- making, by focussing on a single controversy, the
question of the proper penalty for the crime of murder. [157B] (c) Any
justification for the capital sentence, as for other salient features of the
penal system must be sought in the protection of the society and that alone.
[145E] Even where it has been legally retained, as in India, Capital Punishment
is now seldom employed except in very grave cases where it is a crime against
the society and the brutality of the crime shocks the judicial conscience.
Indeed the death penalty satisfies the
society's retributive goals and is still presumed to be a deterrent to
potential offenders Of the three purposes commonly assigned to
punishment-retribution, deterrence and reformation- deterrence is generally
held to be the most important, although the continuing public demand for
retribution cannot be ignored. Prima facie, the death sentence is likely to
have a stronger affect as a deterrent upon normal human beings than any other
form of punishment. People are believed to refrain from crime because they fear
punishment.
Since people fear death more than anything else,
the death penalty is the most effective deterrent. [146C-E] (d) If the appeal
of capital punishment were merely to fear of death, it would be a very
inefficient protector of society. In civilized society and in peace time,
government relies for obedience more on its moral prestige than on violent
repression of crime. Punishment only protects life effectively if it produces
in possible-murderers, not only fear of the consequences of committing murder,
but a horrified recoil for the thing itself It can only achieve, this, more
ambitious, task, if sentence of death is felt to embody society's strongest
condemnation of murder and keenest sense of its intolerable wickedness. It is
not by the fear of death but by exciting in the community a sentiment of horror
against any particular act, that the offenders could be deterred from
committing it. [143B-C] Royal Commission on Capital Punishment Para 59:
referred to.
(e) The punishment of death should reflect
adequately the revulsion felt for the gravest of crimes by the great majority
of citizens. Legislators and Judges:
87 share this revulsion themselves; otherwise
indeed their action would be morally indefensible. Their aim then should be,
not only to strike terror nor even to awaken popular indignation in a direction
convenient to Government. It would be to arouse in all and sundry their Own
indignant repudiation of a wicked act and at the same time, to deepen it in
themselves. In this vain sentence of death has been pronounced, carried out and
acclaimed with stern satisfaction. Otherwise the conscience of the community
would be revolted if the criminals were allowed to live.[145F-G] 6.(a) The
theory that (i) the death penalty is per se cruel and unusual punishment and
(ii) alternatively the inordinate delay in carrying it out makes it so has now
been completely destroyed by two recent decisions of the Privy Council.[149F]
Eaton Baker v The Queen, L.R. [1975] AC 774 Freites v. George Ramouter Benny,
LR [1975] AC 239; discussed.
(b) in the United States of America also the
death penalty has practically existed more or less harmoniously with humane
theories of criminal justice for over two hundred years (e.g). [151E] (i) In
Trop v. Dulles, [1958] 356 US 86, L. ed. 630, the Court refused to consider the
death penalty as an indent of the constitutional limit of punishment; (ii) In
Mc Gouths v. California, [1971] 402 U.S. 183, it was held that the absence of
any guidelines was not a violation of "due process" and (iii) In
Furman v. Georgia the multiple opinions did not rule out altogether
re-imposition of the death penalty in the future provided there was legislative
structuring of a permissible system providing for sufficient procedural
safeguards; (iv) Later on, the death penalty has been reimposed and this
judicial approach stood reoriented.
The constitutionality of the death-penalty
was supported by four factors (1) the reference to capital punishment in the
Constitution (ii) the past Supreme Court decisions on the death penalty (iii)
the limitations of judicial restraints and (iv) the doctrine of separation of
powers. [151F; 152D;
154E] M. Cherif Bassi Owni; Substantive
Criminal Law p. 120- 128; referred to and (v) In Gregg v. Georgia, [1976] 428
U.S. 153; 49 L.ed.
2d. 859; Proffit v. Floride, [1976] 428 242;
49 L.ed. 2nd.
913; Jurek Texas, [1976] 428 US 262; 49 L.ed.
2nd, 929-all concerned with discretionary sentencing procedures- and in Woodson
v. North Carolina, [1975] 428 US 280; 49 L.ed. 944 and Roberts v. Lonisiana
[1976] 428 US 326; 49 L.ed. 2d 974- both concerned with mandatory death
sentence-it was held that (a) the punishment of death did not invariably
violates the Constitution (b) history and precedent did not support the
conclusion that the death sentence was per se violation of 8th and 14th
Amendments (c) the evolving standards of decency arguments had been
substantially under cut in the last four years because a large segment of the
enlightened population regarded the death penalty as appropriate and necessary
as seen in the new legislation passed in response to Furman (d) the death
penalty was not inherently cruel and unusual. It served two principal social
purposes retribution and deterrence, and therefore the death sentence for the
crime of murder was (1) not without justification (2) not unconstitutionally
severe and (3) not invariably disproportionate to the crime and (e) that Furman
mandated, where discretionary sentencing was used, there must be suitable
direction and 88 limitation to minimise the risk of wholly and arbitrary and
capricious action, the bifurcated trial with standards modelled after the
Modern Penal Code juries gave just such guidance. [155F-G; 156A] Observation:
If there has to be a law reform at all, some
regard must be had to the plight of the victim or his or her family by making
provision for payment of compensation. While it is commonly accepted that these
convicted of violations of the criminal law must "pay their debt to
society, little emphasis is placed upon requiring offenders to "pay their
debt" to their victims. These again are matters for the Parliament to
Provide.] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 512 of
1978.
Appeal by Special Leave from the Judgment and
Order dated 12-9-74 of the Allahabad High Court in Criminal Appeal No. 501/74.
AND CRIMINAL APPEAL NO. 513 of 1978 Appeal by
Special Leave from the Judgment and Order dated 9-1-1978 Kerala High Court in
Crl. A. No. 213/77 and Ref. Trial No. 3/77.
AND CRIMINAL APPEAL NO. 513 of 1978 Appeal by
special leave from the Judgment and Order dated 28-9-77 of the Allahabad High
Court in Criminal Appeal No. 261/73 and Reference No. 6/77.
R. K. Garg for the Appellant in Crl. A. No.
513/78.
S. K. Bagga, Amicus Curiae for the Appellant
in Crl.
A.512/78 P. K. Pillai, Amicus Curiae for the
Appellant in Crl.
A. No. 511/78 D. P. Uniyal and M. V. Goswami
for the State of U.P.
K.R. Nambiar for the State of Kerela.
The Judgment of Krishna Iyer and Desai, JJ.
was delivered by Krishna Iyer, J.; Sen, J. gave a dissenting opinion.
KRISHNA IYER, J.
THE DEADLY QUANDARY To be or not to be: that
is the question of lethal import and legal moment, in each of these three
appeals where leave is confined to the 89 issue of the propriety of the impost
of capital penalty against which the brutal culprits desparately beseech that
their dear life be spared by the Summit Court and the incarceratory alternative
be awarded instead. There is, as here, a judicial dimension to the
quasi-Hamletian dilemma when "a murder most foul" demands of
sentencing justice punitive infliction of death or the lesser punishment of
life imprisonment, since the Penal Code leaves the critical choice between
physical liquidation and life-long incarceration to the enlightened conscience
and sensitized judgment of the Court.
A narration of facts is normally necessary at
this early stage but we relegate it to a later part, assuming for the nonce the
monstrosity the murder in each case. Is mere shock at the horrendous killing
sufficient alibi to extinguish one more life, de hors circumstances, individual
and social, motivational and psychical ? The crime and the criminal,
contemporary societal crisis, opinions of builders and moulders of the nation,
cultural winds of world change and other profound factors, spiritual and
secular, and above all, constitutional, inarticulately guide the Court's
faculty in reading the meaning of meanings in preference to a mechanistic
interpretation of s. 302 I.P.C. projected in petrified print from Macaulay's
vintage mint.
We banish the possible confusion about the
precise issue before us -it is not the constitutionality of the provision for
death penalty, but only the canalisation of the sentencing discretion in a
competing situation. The former problem is now beyond forensic doubt after
Jagmohan Singh(') and the latter is in critical need of tangible guidelines, at
once constitutional and functional. The law reports reveal the impressionistic
and unpredictable notes struck by some decisions and the occasional vocabulary
of horror and terror, of extenuation and misericordia, used in the sentencing
tailpiece of judgments. Therefore, this jurisprudential exploration, within the
framework of s. 302 I.P.C., has become necessitous, both because the awesome
'either/or' of the Section spells out no specific indicators and law in this fatal
area cannot afford to be conjectural.
Guided missiles. with lethal potential, in
unguided hands, even judicial, is a grave risk where the peril is mortal though
tempered by the appellate process. The core question- the only question that
occupies our attention, within the confines of the Code, is as to when and why
shall capital sentence be pronounced on a murderer and why not in other cases.
The penological poignancy and urgency of the
solution is obvious since the human stakes are high, and error, even judicial
error (1) Jagmohan Singh v State of Uttar Pradesh (1973) I S.C.C.20.
7-196SCI/79 90 silences for ever a living
being and despatches him to that 'undiscovered country from whose bourn no
traveller returns': nor, once executed, can 'storied urn or animated bust back
to its mansion call the fleeting breath'. The macabre irrevocability of the
extreme penalty makes the sombre issue before us too important to be relegated,
as often happens, to a farewell paragraph, with focus on fright ful features of
the crime and less stress on the crime-doer and related factors. When human
rights jurisprudence and constitutional protections have escalated to sublime
levels in our country and heightened awareness of the gravity of death penalty
is growing all over the civilised globe in our half-century, is it right to
leave s. 302 I.P.C. in vague duality and value-free neutrality? Any academic
who has monitored Indian sentencing precedents on murder may awaken to 'the
overt ambivalence and covert conflict' among judges 'concerning continued
resort to the death sentence' which, according to Prof. Blackshield,(') 'seems
to minor the uncertainties and conflicts of values in the community itself'.
This tangIed web of case-law has been woven around the terse terms of s. 302,
I.P.C. during the last hundred years.
THE OLD TEXT AND THE NEW LIGHT Section 302.
Whoever commits murder shall be punished with death, or imprisonment for life,
and shall also be liable to fine.
Such stark brevity leaves a deadly discretion
but beams little legislative light on when the court shall hang the sentencee
or why the lesser penalty shall be preferred. This facultative fluidity of the
pro vision reposes a trust in the court to select. And 'discretionary
navigation in an unchartered sea is a hazardous undertaking unless recognised
and recognizable principles, rational and constitutional, are crystallised as
'interstitial legislation' by the highest court. The flame of life cannot
flicker uncertain! and so s. 302 I.P.C. must be invested with pragmatic
concreteness that inhibits ad hominem Responses of individual judges and is in
penal conformance with constitutional norms and world conscience. Within the
dichtomous frame-work of s. 302 I.P.C., upheld in Jagmohan Singh, we have to
evolve working rules of punishment bearing the markings of enlightened
flexibility and societal sensibility. Hazy law, where human life hangs in the
balance, injects an agonising consciousness that judicial error may (1) Prof.
A. R. Blackshield, Associate Professor of Law, University of New South Wales:
Capital Punishment in India: The Impact of the Ediga Anamma Case-July 1977.
91 prove to be 'crime' beyond punishment'.
And history bears testimony to reversal of Court verdict by Discovery of Time.
The tragic speech in the Commons of former Home Secretary (Chuter Ede) makes
ghastly reading (1) "I was the Home Secretary who wrote on Evans' papers.
"The law must take its course." I never said, in 1948 that a mistake
was impossible. I think Evans' case shows, in spite of all that has been done
since, that a mistake was possible, and that, in the form in which the verdict
was actually given on a particular case, a mistake was made. I hope that no
future Home Secretary, which in office or after he has left office, will ever have
to feel that although he did his best and no one could accuse him of being
either careless or inefficient, he sent a man to the gallows who was not
"guilty as charged." That is why we devote a whole judgment to what
ordinarily is a brief finale at the end of a long opinion.
ln Ediga Annamma(2), this Court did set down
some working formulae whereby a synthesis could be reached as between death
sentence and life imprisonment.
Notwithstanding the catalogue of grounds
warranting death sentence as an exceptional measure, 'life' being the rule, the
judicial decisions have been differing (and dithering) at various levels, with
the result the need for a thorough re-examination has been forced on us by
counsel on both sides. Prof. Blackshield makes an acid comment: (3) "The
fact is that decisions since Ediga Anamma have displayed the same pattern of
confusion, contradictions and aberrations as decisions before that case ....To
test this, I have abstracted from the All India Reporter seventy cases in which
the Supreme Court has had to choose between life and death under Section 302:
the last twenty-five reported cases before the date of Ediga Anamma, and the
next forty five (including, of course, Ediga Anamma itself) on or after that
date." "But where life and death are at stake, inconsistencies which
are understandable may not be acceptable. The hard evidence of the accompanying
"kit of cases" compels the (1) The Crusade against Capital Punishment
in Great Britain by Elizabeth Orman Tuttle, 1961, p. 96.
(2) Ediga Annama v. State of Andhra Pradesh
(1974) 4 S.C.C. 43.
(3) Prof. A. R. Blackshield, Associate
Professor of Law, University of New South Wales: Capital Punishment in India.
The Impact of Ediga Annamma.
Case-July 1977.
92 conclusion that, at least in contemporary
India, Mr. Justice Douglas' argument in Furman v. Georgia(l) is correct: that
arbitrariness and uneven incidence are inherent and inevitable in a system of
capital punishment;
and that therefore- in Irritant
constitutional terms, and in spite of Jagmohan Slngh-the-retention of such a
system necessarily violates Article 14's guarantee of "equality before the
law." The author further observes:
"One source of the confusion seems to
have been an under-current of disagreement as to the correctness and
applicability of the argument in Ediga Anamma. But the only direct challenge
has been in Bishan Dass v. State of Punjab, AIR 1975 SC 573 (January 10, 1975:
Case 52) and, with respect, the challenge there seems clearly
misconceived." What a study of the decisions of the higher courts on the
life-or-death choice shows is that judicial impressionism still shows up and it
is none too late to enunciate a systematised set of criteria or at least
reliable beacons Ediga Annamma (supra) in terms, attempted this systematisation:
"Let us crystallise the positive
indicators against death sentences under Indian Law currently.
Where the murderer is too young or too old,
the clemency of penal justice helps him. Where the offender suffers from
socio-economic, psychic or penal compulsions insufficient to attract a legal
exception or to down-grade the crime into a lesser one, judicial com mutation
is permissible. Other general social pressures, war ranting judicial notice,
with an extenuating impact may in special cases, induce the lesser penalty.
Extraordinary features in the judicial process, such as that the death sentence
has hung over the head of the culprit excruciatingly long, may persuade the
Court to be compassionate. Likewise, if others involved in the crime and similarly
situated have received the benefit of life imprisonment or if the offence is
only constructive (i.e. combining the "murder" provision with the
"unlawful assembly" provisione again (if) the accused has acted
suddenly under another's instigation, without premeditation, perhaps the court
may humanely opt for life, even life where a just cause or real suspicion of
wifely infidelity pushed the criminal into the crime. On the other hand, the
weapons used and the manner of their use the (1) 408 U. S. at 238.
93 horrendous features of the crime and
hapless, helpless state A of the victim, and the like, steel the heart of the
law for a sterner sentence. We cannot obviously feed into a judicial computer
all such situations since they are astrological imponderables in an imperfect
and undulating society. A legal policy on life or death cannot be left for
ad-hoc mood or individual predilection and so we have sought to objectify to
the extent possible, abandoning retributive ruthlessness, amending the deterrent
creed and accepting the trend against the extreme and irrevocable penalty of
putting out life.''(l) From what we have said and quoted and from the
persistence Or forensic divarication, it has now become necessary to have a
second look at the life versus death question, not for summarising hitherto
decided cases and distilling the common factors but for applying the
Constitution to cut the Gordian knot. The Suprema lex must set the perspective
and illumine the meaning of subordinate statutes especially where some
provisions contain obfuscatory elements, for, our founding fathers have not
hammered out a merely pedantic legal text but handed down a constellation of
human values, cherished principles and spiritual norms which belight old codes
and imperial laws and impel new interpretations and legislations to tune up the
New Order. The Indian Penal Code must be sensitized by the healing touch of the
Preamble and Part lII. Wrote Wheeler, J :(2) "That court best serves the
law which recognises that the rules of law which grew up in a remote generation
may, in the fullness of experience, be found to serve another generation badly,
and which discards the old rule when it finds that another rule of law
represents what should be according to the established and settled judgment of
society..." Benjamin N. Cardozo, said: (3) "If judges have woefully
misinterpreted the mores of their day, or if the mores of their day are no
longer those of ours, they ought not to tie, in helpless submission, the hands
of their successors." Such a solution to the death/life alternatives,
where the Code leaves the Judge in the cold, has its limits.
"Justice Homes put his view pithily when
he said that judges make law interstitially, that they are confined from molar
to molecular motion. Justice Frankfurter puts (1) Ediga Annamma v. State of A.
P. (1974) 4 S.C.C. 443 at 453.
(2) Dwy v. Connecticut Co., 89 Conn. 74, 99.
(3) The Nature of the Judicial Process by
Benjamin N. Cardozo. p. 152.
94 it more colloquially saying that judges
make law at retail, legislators at wholesale.''(l) Therefore, it is no heresy
to imbibe and inject the social philosophy of the Constitution into the Penal
Code to resolve the tension between the Past and the Present.
QUO VADIS DISCRETIONARY DEATH SENTENCE ?
lndian Justice and the constitutional order are centuries ahead of the
barbarities of Judge Jeffreys of 'Bloody Assizes' fame; and ideologically away
from the years of imperial butchery of Indian uprising when the Penal Code was
drafted. Since Law reflects Iife, new meanings must permeate the Penal Code.
The deprivation of life under our system is too fundamental to be permitted
save on the gravest ground and under the strictest scrutiny if Justice,
Dignity, Fair Procedure and Freedom are creedally constitutional. So it is that
in this bunch of appeals the court is called upon by counsel for the appellants
to repel sentence by hunch and to lay down broad norms and essential principles
as beacon lights which make the law of murder, in the sentencing sector, most
restrictive and least vagarious.
More illumination and closer examination of
the provisions viz., s.302 in the larger humanist context and constitutional
conspectus, is necessitous. Legal justice must be made of surer stuff where
deprivation of life may be the consequence. So we have heard a wider range of
submissions and sought the,'amicus' services of the learned Solicitor General.
An intervener (Committee for Abolition of Death Penalty, interested in
abolition of death penalty has submitted, through Dr. L. M. Singhvi, some
material. We record our appreciation af the assistance given by the former and
take due note of the views presented by the latter. Light, not heat, is welcome
from any source in aid of judicial justice.
We are cognizant of the fact that no
inflexible formula is feasible which will provide a complete set of criteria
for the infinite variety of circumstances that may affect the gravity of the
crime of murder, as pointed out by Palekar, J. in Jagmohan Singh (supra). The
learned Judge further observed:
"The impossibility of laying down
standards is at the very core of the criminal law as administered in India
which invests the judges with a very wide discretion in the matter of fixing
the degree of punishment. The discretion in the matter of sentence is, as
already pointed out, liable to be corrected , by superior courts." (p. 35)
(1) "Social Justice" Ed. by Richard B. Brandt, p. 109.
95 What is important to remember is that
while rigid prescriptions and random prescriptions which imprison judicial
discretion may play tricks with justice, the absence, altogether, of any
defined principles except a variorum of rulings may stultify sentencing law and
denude is of decisional precision. 'Well-recognised principles' is an elegant
phrase. But what are they, when minds differ even on the basics ? Fluctuating
facts and keleidoscopic circumstances, bewildering novelties and unexpected
factors, personal vicissitudes and societal variables may defy standard-
setting for all situations; but that does not mean that humane principles
should be abandoned and blanket discretion endowed, making life and liberty the
plaything of the mentality of human judges. Benjamin Cardozo has pricked the
bubble of illusion about the utter objectivity of the judicial process: (1)
"I have spoken of the forces of which judges avowedly avail to shape the
form and content of their judgments. Even these forces are seldom fully in
consciousness. They lie so near the surface, however, that their existence and
influence are not likely to be disclaimed. . .Deep below consciousness are
other forces, the likes and the dislikes, the predilections and the prejudices,
the complex of instincts and emotions and habits and convictions, which make
the man, whether he be litigant or judge." Section 302 is silent; so the
judges have to speak, because the courts must daily sentence. Merely to say
that discretion is guided by wellrecognised principles shifts the issue to what
those recognised rules are. Are they the same as were exercised judicially when
Bhagat Singh was swung into physical oblivion ? No. The task is to translate in
new terms the currently consecrated principles, informed by tradition,
methodized by analogy, disciplined by system, and subordinated to 'the
primordial necessity of order in social life'. The error of parallax which
dated thought processes, through dusty precedents, may project needs to be
corrected.
That is the essay we undertake here.
Moreover, the need for well-recognised
principles to govern the 'deadly' discretion is so interlaced with fair
procedure that unregulated power may even militate against Art. 21 as expounded
in Maneka Gandhi's case(2), an aspect into which we do not enter here. Judicial
absolutism or ad- hocism is anathema in our constitutional scheme. It (1) The
Nature of the Judicial Process by Benjamin N. Cardozo p. 167. (2) Maneka Gandhi
v. Union of India (1978) I S.C.C. 248.
(2) Maneka Gandhi v Union of India (1978) 1
S.C.C.248 96 has been said that 'a judge untethered by a text is a dangerous
instrument'; and we may well add, judge-power, uncanalised by clear principles
may be equally dangerous when the consequence of his marginal indiscretion may
be horrific hanging of a human being until he be dead. Palekar, J. himself
accepted that "well-recognised principles" must govern sentencing
discretion.
The precise criteria which constitute, and
the normative nature of those principles did not directly fall for decision as
that case proceeded on the basis that the lower courts had rightly exercised
the sentencing discretion. The precise and only issue that was mooted and
decided in Jagmohan Singh(l) was the constitutionality of s. 302 I.P.C. and the
holding was that 'the death sentence imposed after trial in accordance with
procedure established by law is not unconstitutional'. The acceptance of the
invulnerability of discretionary power does not end the joureney; it
inaugurates the search for those 'well recognised principles' Palekar, J.,
speaks of in the Jagmohan case. Incidental observations without concentration
on the sentencing criteria are not the ratio of the decision. Judgments are not
Bible for every line to be venerated.
When the legislative text is too bald to be
self-acting or suffers zigzag distortion in action the primary obligation is on
Parliament to enact necessary clauses by appropriate amendments to s. 302
I.P.C. But if legislative undertaking is not in sight judges who have to
implement the Code cannot fold up their professional hands but must make the
provision viable by evolution of supplementary principles even if it may appear
to possess the flavour of law-making. Lord Dennings observations are apposite:
"Many of the Judges of England have said
that they (lo not make law. They only interpret it. This is an illusion which
they have fostered. But it is a notion which is now being discarded everywhere.
Every new decision-on every new situation-is a development of the law. Law does
not stand still. It moves continually.
Once this is recognised, then the task of the
Judge is put on a higher plane. He must consciously seek to mould the law so as
to serve the needs of the time. He must not be a mere mechanic, a mere working
mason, laying brick on brick, without thought to the overall design. He must be
an architect-thinking of the structure as a whole, building for society a
system of law which is strong, durable and just. It is on his work that
civilised society itself depends." (1) The Supreme Court of India-A Socio-Legal
Critique of its Juristic Techniques by Rajeev Dhavan- Foreword by Lord Denning,
M. R. The Court's tryst with the Constitution obligates it to lay down A
general rules, not a complete directory, which will lend predictabilily to the
law vis-a-vis the community and guide the judiciary in such a grim verdict as
choice between life and death. The right to life, in- our constitutional order,
is too scared to be wished away without so much as Directive Principles for its
deprivation, save sweeping judical discretion and reference for confirmation or
appellate review_ the know-how for exercise of either being left to the assumed
infallibility of the curial process in the face of the daily reality that there
are cxtreme variations among judges themselves on 'when' and 'why' the extreme
penalty shall or shall not be inflicted.
Currently, the welter of the British Indian
and post- Independence decisions and the impact of laconic legislative changes
in the Criminal Procedure Code the competition among the retributive,
deterrent, the reformative and even the existentialist theories of punishment
and of statistical studies and sociological and cultural winds settle the
lethal fate of the living man in the cage.
Law must be honest to itself. Is it not true
that some judges count the number of fatal wounds, some the nature of the
weapons used, others count the corpses or the degree of horror and yet others
look into the age or sex of the offender and even the lapse of time between the
trial court's award of death sentence and the final disposal of the appeal ?
With some judges, motives, provocations, primary or constructive guilt, mental
disturbance and old feuds, the savagery of the murderous moment or the plan
which has preceded the killing, the social milieu, the sublimated class complex
and other odd factors enter the sentencing calculus. Stranger still, a good
sentence of death by the trial court is sometimes upset by the Supreme Court
because of Law's delays. Courts have been directed execution of murderers who
are mental cases, who do not fall within the McNaghten rules, because of the
insane fury of the slaughter. A big margin of subjectivism, a preference for
old English precedents, theories of modern penology, behavioural emphasis or
social antecedents, judicial hubris or human rights perspectives,
criminological literacy or fanatical reverence for outworn social philosophers
buried in the debris of time except as part of history-this plurality of forces
plays a part in swinging the pendulum of sentencing justice erratically.
Therefore, until Parliament speaks, the court cannot be silent. (Hopefully,
s.302 l.P.C.
is being amended, at long last, but it is
only half-way through as the Rajya Sabha proceedings show. We will revert to it
later).
98 Prof. Blackshield, on an analytical study
of Indian death sentence decisions, has remarked with unconventional candour:
"But where life and death are at stake,
inconsistencies which are understandable may not be acceptable." His
further comments are noteworthy:
"The fact is that in most cases where
the sentence of death under S.302 is confirmed by the Supreme Court, there is
little or no discussion of the reasons for confirmation. Sometimes there is a
brief assertion of "no extenuating circumstances" (which seems to imply
that the Court is making its own discretionary judgment; at other times there
is a brief assertion of "no ground to interfere" (which seems to
imply that the Court is merely reviewing the legitimacy of the High Court's
choice of sentence). The result is to obfuscate, probably beyond any hope of
rationalisation, the analytical issues involved."(supra) The twists and
turns in sentencing pattern and the under-emphasis on the sentencee's
circumstances in decided cases make an in-depth investigation of the
'principles' justifying the award of death sentence a constitutional duty of
conscience. This Court must extricate, until Parliament legislates, the death
sentence sector from judicial sub jectivism and consequent uncertainty. As
Justice Cardozo, in The Nature of the Judicial Process, bluntly states: (1)
"There has been a certain lack of candor in much of the discussion of the
theme, or rather perhaps in the refusal to discuss it, as if judges must lose
respect and confidence by the reminder that they are subject to human
limitations.. if there is anything of reality in my analysis of the judicial
process, they do not stand aloof on these chills and distant heights;
and we shall not help the cause of truth by
acting and speaking as if they do. The great tides and currents which engulf
the rest of men do not turn aside in their course and pass the judges by."
It is fair to mention that the humanistic imperatives of the Indian
Constitution, as paramount to the punitive strategy of the Penal code, have hardly
been explored by courts in this field of 'life or death' at the hands of the
law. The main focus of our judgment is on this poignant gap in 'human rights
jurisprudence' within the limits of the Penal Code, impregnated by the
Constitution. To put it pithily, a world order voicing the worth of the human
person, a cultural legacy (l) pp. 167-168.
99 charged with compassion, an interpretative
liberation from colonial A callousness to life and liberty, a concern for
social justice as setting the sights of individual justice, interact with the
inherited text of the Penal Code to yield the goals desiderated by the Preamble
and Articles 14, 19 and 21.
Nor can courts be complacent in the thought
that even if they err the clemency power will and does operate to save many a
life condemned by the highest court to death. For one thing, the uneven
politics of executive clemency is not an unreality when we remember it is often
the violent dissenters, patriotic terrorists, desperadoes nurtured by the
sub-culture of poverty and neurotics hardened by social neglect, and not the
members of the Establishment or con- formist class, who get executed through
judicial and clemency processes. Executive commutation is no substitute for
judicial justice; at best it is administrative policy and at worst
pressure-based partiality. In either case, that court self-condemns itself
which awards death penalty with a sop to its conscience that the habitual
clemency of Government will soften the judicial excess in sentence. If justice
under the law justifies the lesser sentence it is abdication of judicial power
to inflict the extreme penalty and extraneous to seek consolation in the
possible benign interference by the President. The criteria for clemency are
often different. We arc thus left with the necessity to decipher sentencing
discretion in the death/life situation.
SENTENCING CYNOSURES Having stated the area
and object of investigation we address ourselves to this grave penological
issue purely as judges deciding a legal problem, putting aside views,
philosophical or criminological, one holds. But law, in this area, cannot go it
alone; and cross-fertilisation from sociology, history, cultural anthropology
and current national perils and developmental goals and above all,
constitutional currents, cannot be eschewed.
Let us leave 'law' a while and begin withdrawing
the backdrop with a lurid brush. Every sombre dawn a human being is hanged by
the legal process, the flag of humane justice shall be hung half-mast. Such is
the symbolic reverence the land of Gandhi should pay to human life haltered up
by lethal law. The values of a nation and ethos of a generation mould concepts
of crime and punishment. So viewed, the lode- star of penal policy to day,
shining through the finer culture of former centuries, strengthens the plea
against death penalty. Moreover, however much judicially screened and
constitutionally legitimated, there is a factor of fallibility, a pall that
falls beyond recall and a core of sublimated cruelty implied in every death penalty.
100 This is the starting point of our
re-appraisal of presidential and legislative texts, with a view to evolving
clearer criteria for choice between the Life-Death Alternatives enacted into
the Penal Code. We may, for emphasis, recall s. 302 I.P.C.,-at once laconic and
draconic, which reads:
s.302.-Punishment for murder.-Whoever commits
murder shall be punished with death, or imprisonment for life, and shall also
be liable to fine." We approach the resolution of the punishment
predicament in a manner at once legal, logical and criminological and
impregnated with values constitutional. Therefore, we will first study the
significant legislative developments in the two interacting Codes and related
par liamentary essays at change. Where broad conclusions emerge from such an
investigation, constitutional reinforcement may be sought.
Since the Constitution is paramount and
paramountcy is paramountcy, its expansive humanism must overpower traditional
'terrorism' in the practice of sentencing. When this stage is reached and
formulation of guidelines made, we will consider the criminological foundations
of theories of punishment which harmonise with the human rights jurisprudence
of our cultural cosmos. Finally, we will set down the salient cynosures for judges
in their day-to-day labours.
One sentencing aspect which has found
prominent place in the Criminal Procedure Code, 1973, but more often ignorantly
ignored, needs to be highlighted for future guidance. The cases actually de
manding decision, their factual matrices and the actual application of The
principles we have formulated to the appeals under consideration are the
decisive part of the judgment.
The sister Codes-the Indian Penal Code and
the Criminal Procedure Code-are interwoven into the texture of sentencing. So
much so, the various changes in s.367 of the Procedure Code, 1898 and its
re-incarnation in s.354 of the Code of 1973 impact on the inter pretation of s.
302 of the Penal Code. The art of statutory construction seeks aid from
connective tissues, as it were, of complementary enactments.
This mode offers a penological synthesis
Parliament legislatively intended. From this angle, we may examine the history
of the amendments to the Procedure Code in so far as they mould' the sentencing
discretion vested by s. 302 I.P.C.
Vintage words adapt their semantic content
with change in Society's thoughtways and people's mores. Linkwise, Law- Life
mutuaIity moulds judicial construction. So when a nineteenth century Code, 101
with vital impact on life and liberty, falls for examination in the last
quarter of the twentieth century, criminological developments finds their way
into the process of statutory decoding. This is obviously permissible, even
necessary. A progressive construction which up-dates the sense of statutory
language has been adopted in Weems v. United States(1) and commended by
jurists.
We may ask ourselves whether the Procedure
Code, which intertwines with the Penal Code lends discretionary direction?
Similarly, a brief suruey of the trend of legislative endeavours may also serve
to indicate whether the people's consciousness has been projected towards
narrowing or widening the scope for infliction of death penalty. Current
criminological theories, the march of the abolitionist movement across the
continents, the national heritage and voice of the makers of modern India and
parliamentary re-thinking on reform of the Penal Code may also be indicators.
In this setting, let us rationalize and humanize the discretionary exercise
under s.302 I.P.C.
Several attempts have been made to restrict
or remove death penalty under s. 302 but never even once to enlarge its
application. Parliamentary pressure has been to cut down death penalty,
although the section formally remains the same and is very nearly being wholly
recast benignly. The cue for the Court is clear.
"In 1931, an abolition bill was
introduced in the Legislative Assembly by Gaya Prasad Singh; but a motion for
circulation of the bill was defeated after it was opposed by the government.
The pattern after independence has been much
the same.
In 1956, a bill introduced in the Lok Sabha
by Mukund Lal Agarwal was rejected after government opposition. In 1958 a
Resolution for abolition, moved in the Rajya Sabha by Prithvi Raj Kapur, was
withdrawn after debate. (Its purpose had been served, said Shri Kapur).
"The ripples are created and it is in the air": Rajya Sabha Debates,
April 25, 1958, Cols.444-528. In 1961 a further Resolution, moved in the Rajya
Sabha by Mrs Savitry Devi Nigam, was negatived after debate.
In 1962, however Resolution moved in the Lok
Sabha by Raghunath Singh received more serious attention: Lok Sabha Debates,
April 21, 1962, Cols.307-365. The Resolution was withdrawn, but only after the
government had given an undertaking that a transcript of the debate would be
forwarded to the Law Commission, for consi- 102 deration in the context of its
review of the Penal Code and the Criminal Procedure Code. The result was a
separate Law Commission Report on Capital Punishment, submitted to the
government in September, 1967." (supra) At pages 354-55, the Law
Commission summarized its main conclusions as follows It is difficult to rule
out that the validity of or the strength behind, many of the arguments for
abolition. Nor does the commission treat lightly the argument based on the
irrevocability of the sentence of death, the need for a modern approach, the
severity of capital punishment, and the strong feeling shown by certain
sections of public opinion in stressing deeper questions of human values.
Having regard, however, to the conditions in
India, to the variety of the social upbringing of its inhabitants, to the
disparity in the level of morality and education in the country, to the
vastness of its area, to the diversity of its population and to the paramount
need for main taining, law and order in the country at the present juncture
India cannot risk the experiment of abolition of capital punishment." Currently,
there is a Bill introduced in the Lok Sabha for total abolition. The most
meaningful contribution to 'human rights legality' in the 'terminal' territory
of punitivity is the parliamentary amendment to s.302 I.P.C. half-way through
and, if we may say so with respect, half- fulfinling both the humanist
quintessence of the Constitution and, may be, the creed of the Father of the
Nation. Gandhiji long ago wrote in the Harijan:
"God Alone Can Take Life Because He
Alone Gives it" We will dwell on this Indian Penal Code (Amendment) Bill,
1972 passed by the Rajya Sabha in 1978, later in this Judgment but mention this
seminal event as a kindly portent against the 'homicidal' exercise of
discretion, often an obsession with retributive justice in disguise. And the parliamentary
prospects, to the extent relevant to judicial discretion disappoint those who
are restless if murder is divorced from death penalty. The Future shapes the
Present on occasions and therefore we take note of this big change in the
offing. Section 302, as now recast by the Rajya Sabha, reads:
302. (1) Whoever commits murder shall, save
as otherwise vided in sub-section (2), be punished with imprisonment for life
and shall also be liable to fine.
103 (2) Whoever commits murder shall,- (a) if
the murder has been committed after previous planning and involves extreme
brutality; or (b) if the murder involves exceptional depravity; or (c) if the
murder is of a member of any of the armed forces of the Union or of a member of
any police force or of any public servant and was committed- (i) while such
member or public servant was on duty;
(ii) in consequence of anything done or
attempted to be done by such member of public servant in the lawful discharge
of his duty as such member or public servant whether at the time of murder he
was such member or public servant as the case may be, or had ceased to be such
member or public servant; or (d) if the murder is of a person who had acted in
the lawful discharge of this duty under section 43 of the Code of Criminal
Procedure, 1973, or who had rendered assistance to a Magistrate or a police
officer demanding his aid or requiring his assistance under section 37 or
section 129 of the said Code; or (e) if the murder has been committed by him,
while under sentence of imprisonment for- life, and such sentence has become
final, be punished with death, or imprisonment for life, and shall also be
liable to fine.
(3) Where a person while undergoing sentence
of imprisonment for life is sentenced to imprisonment for an offence under
clause (e) of sub-section (2) such sentence shall run consecutively and not
concurrently:(1) Maybe, the fuller and finer flow of the constitutional stream
of human dignity and social justice will shape the provision more
reformatively. Suffice it to say that the battle against death penalty by
parliamentary action is gaining ground and those who do live in the ivory
tower-and Judges, hopefully, do not-will take cognizance of this compassionate
trend.
The inchoate indicators gatherable from the
direct reforms of death penalty take us to the next 'neon sign' from the
changes in the 104 Procedure Code. Section 302 I.P.C., permits death penalty
but s.354 (3) of the Procedure Code, 1973 processes the discretionary power.
The central issue of death/life discretion is not left naked by the Procedure
Code which, by necessary implication, has clothed it with pro life language.
The legislative development, through several successive amendments, has shifted
the punitive centre of gravity from life-taking, to life sentence. To start
with, s. 367(5) obligated the court to 'state the reason why sentence of death
was not passed'. In other words, the discretion was directed positively towards
death penalty.
The next stage was the deletion of this part
of the provision leaving the judicial option open. And then came the new
humanitarian sub-section [s. 354 (3)] of the Code of 1973, whereby the dignity
and worth of the human person, under-scored in the Constitution, shaped the
penal policy related to murder. The sub-section provides:
"When the conviction is for an offence
punishable with death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the reasons for the
sentence awarded, and, in the case of sentence of death, the special reasons
for such sentence." (emphasis added) Thus on the statutory side, there has
been a significant shift since India became free. In practice, the effect of
the pre-1955 version is that while the former rule was to . sentence to death a
person convicted for murder and to impose the lesser sentence for reasons to be
recorded in writing, the process has suffered a reversal now. Formerly, capital
punishment was to be imposed unless special reasons could be found to justify
the lesser sentence. The 1955 amendment, removing the requirement, had left the
courts equally free to award either sentence. Finally, with the new 1973
provision- "a great change has overtaken the law.....The unmistakable
shift in legislative emphasis is that life imprisonment for murder is the rule
and capital sentence the exception to be resorted to for reasons to be
stated... It is obvious that the disturbed conscience of the State on the vexed
question of legal threat to life by. way of death sentence has sought to
express itself legislatively, the stream of tendency being to wards cautious,
partial abolition and a retreat from total retention." The twin survey of
attempted and half accomplished changes in the Penal Code and the statutory
mutation, pregnant with significance, 105 wrought into the procedure Code,
definitely drives judicial discretion to a benign destination. The message of
the many legislative exercises is that murder will ordinarily be visited only
with life imprisonment and it is imperative that death sentence shall not be
directed unless there exist "special reasons for such sentence." The
era of broad discretion when Jagmohm's case was decided has ended and a chapter
of restricted discretion has since been inaugurated. This is a direct response,
not merely to the humane call of the Constitution, but also to the wider
cultural and criminological transformation of opinion on the futility of the
law of 'Life for Life' 'red in tooth and claw'. No longer did judicial
discretion depend on vague 'principles'. It became accountable to the strict
requirements of s.354(3) of the 1973 Code.
By way of aside, we may note that the
consolation that judicial discretion in action is geared to justice is not
always true to life.
"The discretion of a judge is said by
Lord Camden to be the law of tyrants: it is always unkonwn; it is different in
different men; it is casual, and depends upon constitution, temper and passion.
In the best, it is of ten times caprice; in the worst, it is every vice, folly
and passion to which human nature is liable........ " 1 Bouv. Law Dict.,
Rawles' Third Revision p.885." "An appeal to a judge's discretion is
an appeal to his judicial conscience. The discretion must be exercised, not in
opposition to, but in accordance with, established principles of law."
(Griffin v.
State, 12 Ga. App. 615)" Here is thus an
appeal to the informed conscience of the sentencing judge not to award death
penalty save for special reasons which have direct nexus with the necessity for
hanging the murderer by law.
The revolutionary import of the target
expression, in a death sentence situation, viz., 'the special reasons for such
sentence demands perceptive exploration with emotional explosion or sadistic
sublimation disguised as 'special reason'. Here we enter the penological area
of lethal justice, social defence and purpose-oriented punishment.
Before launching on the decisive discussion
it is fair to be frank on one facet of the judicial process. To quote Richard B
Brandt:
106 "Much of law is designed to avoid
the necessity for the judge to reach what Holmes called his 'can't helps', his
ultimate convictions or values. The force of precedent, the close applicability
of statute law, the separation of powers, legal presumptions, statutes of
limitations, rules of pleading and evidence, and above all the pragmatic
assessments of fact that point to one result whichever ultimate values be
assumed, all enable the judge in most cases to stop short of a resort to his
personal standards. When these prove unavailing, as is more likely in the case
of courts of last resort at the frontiers of the law, and most likely in a
supreme constitutional court, the judge necessarily resorts to his own scheme
of values. It may, therefore, be said that the most important thing about a
judge is his philosophy; and if it be dangerous for him to have one, it is at
all events less dangerous than the self-deception of having none." THE
CODES, THE CONSTITUTION AND THE CULTURAL BACKDROP Primarily we seek guidelines
from the two Codes, in the omnipresence and omnipotence of the over-arching
Constitution. The Indian cultural current also counts and so does our spiritual
chemistry, based on divinity in everyone, catalysed by the Buddha-Gandhi
compassion. 'Every saint has a past and every sinner a future'-strikes a note
of reformatory potential even in the most ghastly crime. This axiom is a vote
against 'death' and hope in 'life'.
Many humane movements and sublime souls have
cultured the higher consciousness of mankind, chased death penalty out of half
the globe and changed world view on its morality. We will, in the culminating
part of our judgment, cull great opinions to substantiate this assertion but
content here with pointing to their relevance as part of the conspectus.
Criminologists have elaborately argued that
'death' has decisively lost the battle as the dominant paradigm and even in our
Codes has shrunk into a weak exception. Even so, what are these exceptional
cases? Not hunch or happen-stance but compelling grounds, lest the 'Chancellor's
foot' syndrome reappear in different form. So let us examine the grounds in
this new sheen.
An easy confusion is over-stress on the
horror of the crime and the temporary terror verging on insane violence the
perpetrator displays, to the exclusion of a host of other weighty factors when
the scales are to settle in favour of killing by law the killer who resorts to
unlaw.
107 Speaking illustratively is shocking
crime, without more, good to justify the lethal verdict? Most murders are
horrifying, and an adjective adds but sentiment, not argument. The personal
story of an actor in a shocking murder, if considered, may bring tears and
soften the sentence. He might have been a tortured child, an illtreated orphan,
a jobless starveling, a badgered brother, wounded son, a tragic person hardened
by societal cruelty or vengeful justice, even a Hamlet or Parasurama. He might
have been angelic boy but thrown into mafia company or inducted into dopes and
drugs by parental neglect or moraly-mentally retarded or disordered. Imagine a
harijan village backed out of existence by the genocidal fury of a kulak group
and one survivor, days later, cutting to pieces the villain of the earlier
outrage. Is the court in error in reckoning the prior provocative barbarity as a
sentencing factor? Another facet. Maybe, the convict's poverty had disabled his
presentation of the social milieu or other circumstances of extenuation in
defence. Judges may be of moods, soft or severe; their weaknesses may be
sublimated prejudices; their sympathies may be persona hyper- sensitivity. Did
not Lord Camden, one of the greatest and purest of English judges, say
"that the discretion of a judge is the law of tyrants; it is always
unknown; it is different in different men; it is casual, and depends upon
constitution, temper and passion. In the best it is oftentimes caprice; in the
worst, it is every vice, folly and passion to which human nature can be
liable." (State v. Cummings 36 Mo.263 278 (1865)? When life is at stake,
can such frolics of fortune play with judicial veriest? The nature of the
crime-too terrible to contemplate-has often been regarded a traditional peg on
which to hang a death penalty. Even Ediga Annamma (supra) has hardened here.
But 'murder most foul' is not the test,
speaking scientifically. The doer may be a patriot, a revolutionary, a weak
victim of an overpowering passion who, given better environment, may be a good
citizen, a good administrator, a good husband, a great saint . What was Valmiki
once? And that sublime spiritual star, Shri Aurobindo, tried once for murder
but by history's fortune acquitted.
If we go only by the nature of the crime we
get derailed by subjective paroxysm. 'Special reasons' must vindicate the
sentence and so 108 must be related to why the murderer must be hanged and why
life imprisonment will not suffice. Decided cases have not adequately
identified the manifold components of comprehensive sentencing. Resultantly,
what is regarded as decisive is only relevant and what is equally telling
remains untold. For reasons of ' special' grimness may be cancelled by juvenile
justice. Brutality of the crime may be mollified at the level of sentencing
justice by background of despair. Even a planned barbarity may be induced by an
excessive obsession by one who could be a good person under other surroundings.
Why, the ghastly crime may in rare cases be due to a brain tumour. Myriad
factors of varying validity may affect the death penalty either way. The
criminal will be projected on the scene and examined from different angles
since the punishment is on the person though for the offence.
CAPITAL PENALTY AND THE CONSTITUTION In these
pathless woods we must seek light from the Constitution regarding 'special
reasons'. After all, no Code can rise higher than the Constitution and the
Penal Code can survive only if it pays homage to the suprema lex. The only
correct approach is to read into s.302 I.P.C. and s.354(3) Cr.P.C., the human
rights and humane trends in the Constitution. So examined, the right to life
and to fundamental freedoms is deprived when he is hanged to death, his dignity
is defiled, when his neck is noosed and strangled. What does s.302 do by death
penalty to the sentence? It finally deprives him of his fundamental rights.
True, fundamental rights are not absolute and
may be restricted reasonably, even prohibited totally, if social defence
compels such a step. Restriction may expand into extinction in extreme
situations. (see Narendra Kumar) Punishment by deprivation of life or liberty
must be validated by Arts. 21, 14 and 19-the first guarantees fair procedure,
the second is based on reasonableness of the deprivation of freedom to live and
exercise the seven liberties and the last is an assurance of non-arbitrary and
civilized punitive treatment. But in the connotation of these and other
Articles of Part III, the social justice promise of Part IV and the primordial
proposition of human dignity set high in the Preamble must play upon the
meaning.
Crime and penal policy have to obey the
behests set out above and we may gain constitutional light on the choice of
'life' or death' as appropriate punishment. Article 14 surely ensures that
principled sentences of death, not arbitrary or indignant capital penalty,
shall be imposed.
Equal protection emanates from equal
principles in 109 exercise of discretion. In other words, the constraint of
consistency and the mandate against unreasoning disregard of material
circumstances are implicit lest discretion attracts the acrid epigram of
judicial caprice.
The dignity of the individual shall not be
desecrated by infliction of atrocious death sentence merely because there is a
murder proved although crying circumstances demand the lesser penalty. To
exemplify, supposing a boy of fifteen incited by his elder brothers, chases
with them a murderer of their father and after hours of search confronts the
villain and vivisects him in blood-thirsty bestiality.
Do you hang the boy, blind to his dignity and
tenderness intertwined? We mean to illustrate the applicability, not to exhaust
the variables. Even here we may make it clear that equality is not to be
confounded with flat uniformity.
The element of flexibility and choice in the
process of adjudicating is precisely what justice requires in many cases.
Flexibility permits more compassionate and more sensitive responses to
differences which ought to count in applying legal norms, but which get buried
in the gross and rounded- off language of rules that are directed at wholesale
problems instead of particular disputes. Discretion in this sense allows the
individualization of law and permits justice at times to be hand-made instead
of mass-produced.
In urging that discretion is the
"effective individualizing agent of the law", Dean Pound pointed out
that In proceedings for custody of children, where compelling consideration(s)
cannot be reduced to rules.. determination must be left, to no small extent, to
the disciplined but personal feeling of the judge for what justice
demands." (22 Syracuse L.R. 635, 636) (1).
Every variability is not arbitrary. On the
contrary, it promotes rationality and humanity. Article 19 is a lighthouse with
seven lamps of liberty throwing luminous indications of when and when only the
basic freedoms enshrined therein can be utterly extinguished. The Judge who
sits to decide between death penalty and life sentence must ask himself: Is it
'reasonably' necessary to extinguish his freedom of speech, of assembly and
association, of free movement, by putting out finally the very flame of life?
It is constitutionally permissible to swing a criminal out of corporeal
existence only if the 110 security of State and society, public order and the
interests of the general public compel that course as provided in Art. 19(2) to
(6). They are the special reasons which s.354(3) speaks of. Reasonableness as
envisaged in Art.19 has a relative connotation dependent on a variety of
variables-cultural, social, economic and otherwise. We may give concrete
instances at a later stage of this judgment but feel it necessary to state here
that what is reasonable at a given time or in a given country or in a situation
of crisis may not be the same as on other occasions or in other cultural
climates. Indeed, that is the unspoken but inescapable silent command of our
constitutional system.
So, we search for guidelines within s.302
I.P.C. read with s.354 Cr. P.C., and find that ordinarily, for murder a
life-term is appropriate save where 'special reasons' are found for resort to
total extinction of the right to life and farewell to fundamental rights.
Public order and social security must demand it. That is to say, the sacrifice
of a life is sanctioned only if otherwise public interest, social defence and
public order would be smashed irretrievably.
Social justice is rooted in spiritual justice
and regards individual dignity and human divinity with sensitivity. So, such
extra-ordinary grounds alone constitutionally qualify as 'special reasons as
leave no option to the court but to execute the offender if State and society
are to survive.
One stroke of murder hardly qualifies for
this drastic requirement, however gruesome the killing or pathetic the
situation, unless the inhere t testimony oozing from that act is irresistible
that the murderous appetite of the convict is too chronic and deadly that
ordered life in a given locality or society or in prison itself would be gone
if this man were now or later to be at large. If he is an irredeemable
murderer, like a bloodthirsty tiger, he has to quit his terrestrial tenancy.
Exceptional circumstances, beyond easy visualisation, are needed to fill this
bill.
To repeat for emphasis, death-corporeal
death-is adieu to fundamental rights. Restrictions on fundamental rights are
permissible if they are reasonable. Such restriction may reach the extreme
state of extinction only if it is so compellingly reasonable to prohibit
totally. While sentencing, you cannot be arbitrary since what is arbitrary is
per se unequal.
As stated earlier you cannot be unusually
cruel for that spells arbitrariness and violates Art.14. Douglas, J.
made this point clear: (1) 111 "There is
increasing recognition of the fact that the basic theme of equal protection is
implicit in "cruel and unusual" punishments. "A penalty ....
should be considered 'unusually' imposed if it is administered arbitrarily or
discriminatorily." They are pregnant with discrimination and
discrimination is an ingredient not compatible with the idea of equal
protection of the laws that is implicit in the ban on "cruel and
unusual" punishments." In Maneka Gandhi, this Court wrote We must
reiterate here what was pointed out by the majority in E.P.Royappa v. State of
Tamil Nadu (2) namely that "from a positivistic point of view, equality is
antithetic to arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic, while the other, to the
whim and caprice of an absolute monarch." You cannot inflict degrading
punishment since the preamble speaks of 'dignity of the individual'. To stone a
man to death is lynch law which breaches human dignity and is unreasonable
under Art.19 and unusually cruel and arbitrary under Art. 14. Luckily, our
country is free from that barbarity legally.
The searching question the Judge must put to
himself is: what then is so extra-ordinarily reasonable as to validate the
wiping out of life itself and with it the great rights which inhere in him in
the totally of facts, the circle being drawn with ample relevancy.
Social justice, which the Preamble and Part
IV (Art.38) hignlight as paramount in the governance of country, also has a
role to mould the sentence. But what is social justice? Despite its shadowy
semantics we may get its essence once we grasp the Third World setting, the
ethos and cultural heritage and the national goal or tryst with destiny.
Balakrishna Iyer, J., in Sridharan Motor
Service, Attur v. Industrial Tribunal, Madras and Others(3) observed:
"Concepts of social justice have varied
with age and clime. What would have appeared to be indubitable social justice
to a Norman or Saxon in the days of William the 112 Conqueror will not be
recognised as such in England today. What may apear to be incontrovertible
social justice to a resident of Quebec may wear a different aspect to a
resident of Peking. If it could be possible for Confusius, Manu, Hammurabi and
Solomon to meet together at a conference table, I doubt whether they would be
able to evolve agreed formulae as to what constitutes social justice, which is
a very controversial field.... In countries with democratic forms of Government
public opinion and the law act and react on each other." We may add that
in a developing country, in the area of crime and punishment, social justice is
to be rationally measured by social defence and, geared to developmental goals.
Thus, we are transported to the region of
effective social defence as a large component of social justice. If the
murderous operation of a die-hard criminal jeopardizes social security in a
persistent, planned and perilous fashion, then his enjoyment of fundamental
rights may be rightly annihilated.
When, then, does a man hold out a terrible
and continuing threat to social security in the setting of a developing
country? He does so if, by his action, he not only murders but by that offence,
poses a grave peril to societal survival. If society does not survive,
individual existence comes to nought. So, one test for impost of death sentence
is to find out whether the murderer offers such a traumatic threat to the
survival of social order. To illustrate, if an economic offender who
intentionally mixes poison in drugs professionally or willfully adulterates
intoxicating substances injuriously, and knowingly or intentionally causes
death for the sake of private profit, such trader in lethal business is a menace
to social security and is, therefore, a violator of social justice whose
extinction becomes necessary for society's survival.
Supposing a murderous band of armed dacoits
inteintionally derails a train and large number off people die in consequence,
if the ingredients of murder are present and the object is to commit robbery
inside the train, they practise social injustice and imperil social security to
a degree that death penalty becomes a necessity if the crime is proved beyond
doubt. There may be marginal exceptions or special extenuations but none where
this kind of dacoity or robbery coupled with murder becomes a contagion and
occupation, and social security is so gravely imperilled that the fundamental
rights of the defendant become a deadly instrument whereby many are wiped out
and terror strikes community life. Then he 'reasonably' forefeits his
fundamental rights and takes leave of life under the law.
The style of violence and 113 systematic
corruption and deliberately planned economic offences by corporate top echelons
are often a terrible technology of knowingly causing death on a macro scale to
make a flood of profit. The definition of murder will often apply to them. But
because of corporate power such murderous depredations are not charged. If prosecuted
and convicted for murder, they may earn the extreme penalty for taking the
lives of innocents deliberately for astronomical scales of gain.
Likewise, if a man is a murderer, so
hardened, so blood-thristy, that within the prison and without, he makes no
bones about killing others or carries on a prosperous business in cadavers,
then he becomes a candidate for death sentence. If psychoanalysts and
psychiatrists find him irredeemable in the reasonable run of time then his
being alive will involve more lives being lost at his hands. If, however, he
can be reformed in a few years' time by proper techniques of treatment
imprisonment for life is good enough. But, on the other hand if he is far too
hadened that it has become his second nature to murder, society cannot
experiment with correctional strategy, for, when he comes out of jail, he may
kill others. Such an incurable murderer deserves to be executed under the law
as it stands.
Difficult to imagine though, but even the
bizarre may happen. The social setting, the individual factors and like
imponderables still remain to be spelt out. While the world is spiralling
spiritually towards a society without State- sanctioned homicide, a narrow
category may under current Indian societal distortions deserve death penalty
although realistically the Law is held at bay by corporate criminals killing
people through economic, product, environmental and like crimes.
Death penalty functionally fails to operate
in this area for reasons not relevant to unravel here but theta justice often
claims human lives by hanging sentences by a distorted vision of the
penological purposes anu results.
What we mean is that the retention of death
sentence in s. 302 is rigorously restricted to these macro-purposes of social
defence, state security and public order. But in practice, purblind application
of capital penalty claims victims who should not be hanged at all. The gross
misapplication springs from professional innocence of the ideological,
constitutional, criminological and cultural trends in India and abroad.
Judicial decisions have hardly investigated these areas, have conjured up
grisly images of crime and criminal, and, fed on discarded doctrines of
retribution and deterrence, indulged in death awards blind to the socio-spiritual
changes taking place in theoretical foundations of criminology and sublime
movements on our human 114 planet. The 'robes' are a repository of many rare
qualities but shall add to its repertory latest developments in sentencing
wisdom.
A paranoid preoccupation with the horror of
the particular crime oblivious to other social and individual aspects is an
error. The fact that a man has been guilty of barbaric killing hardly means
that his head must roll in the absence of proof of his murderous recidivism, of
incurable criminal violence, of a mafia holding society in ransom and of
incompatibility of peaceful co-existence between the man who did the murder and
society and its members.
We may constellate some of the principles.
Never hang unless society or its members may probably lose more lives by
keeping alive an irredeemable convict. If rehabilitation is possible by long
treatment in jail, if deterrence is possible by life-long prison terms, capital
sentence may be misapplied. Death penalty is constitutionalised by reading into
s. 354(3) Cr. P.C., those 'special reasons' which validate the sentence as
reasonably necessitous and non- arbitrary, as just in the special societal
circumstances.(1) Social justice turns on culture and situation. We must listen,
even as judges who are human and not wholly free from sublimated violence, to
the words of great men condensed in the message to the Delhi Conference Against
Death Penalty a few months ago. Lok Nayak Jai Prakash Narain said :
To my mind, it is ultimately a question of
respect for life and human approach to those who commit grievous hurts to
others. Death sentence is no remedy for such crimes. A more humane and
constructive remedy is to remove the culprit concerned from the normal milieu
and treat him as a mental case. I am sure a large proportion of the murderers
could be weaned away from their path and their mental condition sufficiently
improved to become useful citizens. In a minority of cases, this may not be
possible. They may be kept in prison houses till they die a natural death. This
may cast a heavier economic burden on society than hanging.
But I have no doubt that a humane treatment
even of a murderer will enhance man's dignity and make society more
human." (emphasis added) Andrie Sakharov, in a message to the Stockholm
Conference on Abolition organised by Amnesty International last year, did put
the point more bluntly: (2) 115 I regard the death penalty as a savage and
immoral institution which undermines the moral and legal foundations of a society.
A State, in the person of its functionaries, who like all people are inclined
to making superficial conclusions who like all people are subject to
influences, connections, prejudices and egocentric motivations for their
behaviour, takes upon itself the right to the most terrible and irreversible
act the deprivation of life. Such a State cannot expect an improvement of the
moral atmosphere in its country.
I reject the notion that the death penalty
has any essential deterrent effect on potential offenders. I am convinced that
the contrary is true-that savagery begets only savagery....I am convinced that
society as a whole and each of its members individually, not just the person
who comes before the courts, bears a responsibility for the occurrence of a
crime....I believe that the death penalty has no moral or practical
justification and represents a survival of barbaric customs of revenge.
Blood-thirsty and calculated revenge with no temporary insanity on the part of
the judges, and therefore, shameful and disgusting." (emphasis added)
Tolstoy wrote an article "I cannot be silent" protesting against
death sentence where he said :
"Twelve of those by whose labour we
live, the very men whom we have depraved and are still depraving by every means
in our power-from the poison of vodka to the terrible falsehood of a creed we
impose on them with all our might, but do not ourselves believe in- twelve of
those men strangled with cords by those whom they feed and clothe and house,
and who have depraved and still continue to deprave them. Twelve husbands,
fathers, and sons, from among those upon whose kindness, industry, and
simplicity alone rests the whole of Russian life, are seized, imprisoned, and
shackled. Then their hands are tied behind their backs lest they should seize
the ropes by which are to be hung, and they are led to the gallows."
Victor Hugo's words are not vapid sentimentalism:
"We shall look upon crime as a disease.
Evil will be treated in charity instead of anger. The change will be simple and
sublime. The cross shall displace the scaffold, 116 Reason is on our side,
feeling is on our side, and experience is on our side." Gandhiji wrote:
"Destruction of individuals can never be
a virtuous act. The evil-doers cannot be done to death.
Today there is a movement afoot for the
abolition of capital punishment and attempts are being made to convert prisons
into hospitals as if they are persons suffering from a disease."
Quotations from noble minds are not for decoration but for adaptation within
the framework of the law. This Gandhian concept was put to the test without
effects calamitous in the Chambal dacoits' cases :
"Take the classic example of the
blood-thirsty dacoits of Chambal. The so-called dacoits, in reality the Thakurs
of Delhi in the 12th century, were driven to the desolate Chambal Valley. They
had no other recourse except to steal and, if necessary, murder for their
survival. The 800 years injustice they suffered can be remedied only by their
economic emancipation.
Remember, no one is born a criminal.
Sarvodaya leaders Jayaprakash Narain and Vinoba Bhave won over dacoits with
love, affection and understanding- something sophisticated, automatic weapons
failed to do." We have, unfortunately no follow-up study of this
experiment.
Coming down to unhappy pragmatism, death
penalty is permissible only where reformation within a reasonable range, is
impossible. The confusion is simple but die-hard.
We lawfully murder the murderer, not the
murder, by infliction of capital sentence. for which the strictest
justification is needed if human ignity assured by the Constitution is not to
be judicially dismissed as an expandable luxury.
The deduction is inevitable that simply
because a murder is brutal, lex talionis must not take over nor humane justice
flee. This proposition is tested in a crisis and the court's responsibility is
heavy to satisfy itself that the nature of the crime is considered, not for its
barbarity as such but for its internal evidence of incurably violent depravity.
We have dealt with this aspect earlier but repeat, since it is horrendous or
many lives have been lost.
Our culture is at stake, our Karuna is
threatened, our Constitution is brought into contempt by a cavalier
indifference to the deep reverence for life and a superstitious offering of
human sacrifice to propitiate the Goddess of Justice.
117 These illustrations show that angry or
scary irrationality has no place in awarding death sentence because
'reasonableness' and fairness are the touchstone of the constitutionality of
capital penalty. Thus, we hold that only in these very limited circumstances
can the court award the extreme penalty. The terrible nature of the murder
should not frenzy the court into necessary 'capital' penalty, for its
pertinence is only to the extent it helps to decide whether the prisoner, if
released after a few years in a penitentiary, will reasonably be prone to
continued killing. If life-long imprisonment will prevent further killing, he
may be allowed to live with the limited fundamental rights allowed in a prison
setting.
Even in extreme cases, one has to judge
carefully whether the social circumstances, personal remorse, the excruciation
of long pendency of the death sentence, with the prisoner languishing in
nearsolitary suffering all the time, are not adequate infliction, so as to make
capital sentence too cruel and arbitrary and agonising not to violate Art. 14.
Our penal pharmacopoeia must provide for the extreme remedy of extinction of
the whole personality only in socially critical situations. This is spiritual-
social justice.
Sometimes the thought is expressed that the
life of the victim, the misery of his family and the great pain cruelly caused,
are forgotton by those who advocate mercy for the brutal culprit. This is a
fallacy fraught with miscarriage of justice. Punishment is not compensation
like the 'blood money' of Islamic law. It is not lex talionis of retributive
genre. To be strictly compensatory or retributive, the same type of cruel
killing must be imposed on the killer.
Secondly, can the hanging of the murderer
bring the murdered back to life? 'The dull cold ear of death' cannot hear the
cries or see the tears of the dying convict. There is a good case for huge
fines along with life-terms in sentences where the sum is realisable and
payable to the bereaved.
The Indian Penal Code fabricated in the
imperial foundry well over a century ago has not received anything but cursory
parliamentary attention in the light of the higher values of the National
Charter which is a testament of social justice. Our Constitution respects the
dignity and, therefore, the divinity of the individual and preservation of
life, of everyone's life. So the Court must permeate the Penal Code with
exalted and expanded meaning to keep pace with constitutional values and the
increasing enlightenment of informed public opinion. A nineteenth century text,
when applied to twentieth century conditions, cannot be construed by signals
from the grave. So, while courts cannot innovate beyond the law, the law cannot
be viewed as cavemen's pieces. The penological winds of change, reflected in
118 juristic debates, bills for abolition of death penalty in Parliament and
the increasing use of clemency and commutation by the highest Executive, must
affect the living law of statutory application.
There is yet another consideration of grave
moment which must, weigh with the court, vowed to uphold Justice- Social,
Economic and Political. Who, by and large, are the men whom the gallows swallow?
The white-collar criminals and the corporate criminals whose willful economic
and environmental crimes inflict mass deaths or who hire assassins and murder
by remote control ? Rarely. With a few exceptions, they hardly fear the halter.
The feuding villager, heady with country liquor, the striking workers desperate
with defeat, the political dissenter and sacrificing liberator intent on
changing the social order from satanic misrule, the waifs and strays whom society
has hardened by neglect into street toughs, or the poor householder-husband or
wife driven by dire necessity or burst of tantrums-it is this person who is the
morning meal of the macabre executioner.
Justice Douglas, in a famous death penalty
case, observed:
Former Attorney Ramsey Clark has said: 'It is
the poor, the sick, the ignorant, the powerless and the hated who are
executed." "A characteristic of village murderers in India:
over 60 per cent of them have lost their
parents, either one or both, at the time of commission of the crime. Inadequate
parental protection is thus one of the primary factors in the upbringing of a
murderer.
The very existence of parents helps the
healthy growth of the offspring and prevents the children from falling into the
whirlpool of crime." Comments the Editor, the Illustrated Weekly of India
dated August 29, 1976.
Historically speaking, capital sentence
perhaps has a class bias and colour bar, even as criminal law barks at both but
bites the proletariat to defend the proprietariat, a reason which,
incidentally, explains why corporate criminals including top executives who, by
subtle processes, account for slow or sudden killing of large members by
adulteration, smuggling, cornering, pollution and other invisible operations,
are not on the wanted list and their offending operations which directly derive
profit from mafia and white-collar crimes are not visited with death penalty,
while relatively lesser delinquencies have, in statutory and forensic rhetoric,
deserved the extreme penalty. Penal 119 law is not what the printed text
professes but what the prison cell and the condemned man testify.
Courts take a close-up of the immediate
circumstances not the milieu which made the murderer nor the environs which
make him man again. In equal justice under the law, this imbalance of s. 302
I.P.C., in action cannot be missed.
The tradition-bound agencies of justicing
cocooned by judicial precedents reflecting by-gone values make sentencing
processes 'soft' where they should be severe and tainted with torture where a
healing touch comports with culture. Indeed, the habitual cerebrations of both
wings of the profession have been guiltless of the great experiment of
injecting the humanism of the National Charter through the interpretative art
into criminal statistics. Social justice on the one hand, means social defence
from white- collar and kindred criminals not through procrastinating illusions
of punishment but instant deterrents to anti- social delinquents and, on the
other, Prison Justice, Reforms of offenders, non-institutional strategies
through community participation in correction and, above all, sentencing essays
which ensure dignity of the individual human decencies and uplifting projects
which re-make the criminal into a good citizen. Several of our prison houses
and practices make us wonder about institutional criminality and 'punishment'
becoming a brand of crime and, worse, a manufacturing process of dehumanized
criminals. Prison Reform is on the national agenda. Sentencing Reform soon
deserves to be added.
An Indo-Anglian appreciation of British
Justice is sometimes relied on subconsciously, strengthened by the ambiguous
Report of the Royal Commission on Capital Penalty to substantiate the
retentionist theory. But it is note- worthy that Sir Samuel Romilly, critical
of the brutal penalties in the then Britain, said in 1817: 'The Laws of England
are written in blood'. Alfieri has suggested:
'Society prepares the crime, the criminal
commits it. 'We may permit ourselves the liberty to quote from Judge Sir
Jeoffrey Streatfield: 'If you are going to have anything to do with the
criminal courts, you should see for yourself the conditions under which
prisoners serve their sentence.' "It would be extremely gratifying to scan
the pages of British legal and social history and to find that the members of
the judiciary were invariably in the fore-front of the movement towards
enlightenment, progress and humanity. Unfortunately until very recently, this
has never been the case; in fact, it would be fair to say the judges have
usually been amongst the principal opponents of penal reform. It may be 120
that they were too far divided from the rest of the populace in the remoteness
of their dignity, and too far removed in their standards of physical comfort
and intellectual elegance. Perhaps if a number of them had personally
investigated the pitiable squalor of the prisons, the depravity of the haulks,
and the bestial cruelties on the scaffold, some at least might have been
shocked into a public condemnation of the entire penal system. But, as it was,
they preferred to remain either ignorant of or acquiescent to the aftermath of
their judgments and of all the ensuing horrors which were being carried out in
the name of the law.''(1) British Justice has abandoned death penalty for
murder for two decades now (Homicide Act, 1957) without escalation of murderous
crime. Attempts to get round the Murder (Abolition of Death Penalty) Act, 1965
have failed in Parliament and as Barbara Wooton says, 'Capital punishment thus
appeared to be itself sentenced to death' for murder. To quote the Royal
Commission's recommendation for retention after Parliament has abolished death
penalty is only of historical interest:
"After the Abolition Act had been in force
for over seven years, the Criminal Law Revision Committee considered whether
any further changes in the penalty for murder were desirable. Their conclusions
were almost entirely negative." This perspective justifies judicial
evolution of a humane penal doctrine because the legislative text is not
static; and as Chief Justice Warren wrote in Trop v. Dulles the court 'must
draw its meaning from the evolving standards of a maturing society'. The great
answer to grave crime is culturing of higher consciousness, removing the
pressure of a perverted social order, and nourishing the inner awareness of
man's true nature. This is true penal reform, including jail reform.
A difficult category which defies easy
solution, even in the developmental-social justice background, is the political
or ideological murderer. Where freedom of faith and conscience is affirmed, as
in our Constitution, where concentration of wealth and ethnic and social
suppression are anathema and egalitarian-cum-distributive justice are positive
goals, 'criminals' motivated by the fundamental creed of our Constitution may
well plead for the benefit of life imprisonment. Count Leo Tolstoy in his
Recollections and Essays denounces death penalty even against revolutionaries
by arguments too Gandhian to be dismissed by Indian judges in the sentencing
sector of discretion. We 121 do not dogmatise but suggest the trend. Law by
itself is no answer to Justice as the sublime instances of Socrates, Jesus are
martyrs galore in the long story of Man point.
We do not underrate the importance of strong
public denunciation of serious crimes like murder and heavy punishment for it.
The critical question is whether capital sentence or incarceration for life in
a hospital setting- both stern, but the former a final farewell to life itself,
the latter a protracted living ordeal-which of the two harsh alternatives
should be inflicted.
Criminologists have reached near-consensus
that death penalty for murder is judicial futility as a deterrent and is a
vulgar barbarity, if fruitless. And Reformationists have made headway so much
that about 80 countries have given up capital sentence. England had 200
offences which carried death sentences and publicly hanged boys and girls for
stealing spoons and the like. Stealing persists, death penalty has disappeared.
The importance of death sentence as a deterrent is brought out with
characteristic wit by Dr.
Johnson, who according to Boswell, noted
pickpockets plying their trade in a crowd assembled to see one of their number
executed. There is no moral defence against the application of Justitia dulcore
misericordiac temperate (Justice tempered by mercy, literally by sweetness of
compassion) even in the name of deterrence.
CONDENSED GUIDELINES We may summarise our
conclusions to facilitate easier application and to inject scientific
formulation.
1. The criminal law of the Raj vintage has
lost some of its vitality, notwithstanding its formal persistence in print in
the Penal Code so far as s. 302 I.P.C. is concerned. In the post-Constitution
period s. 302 I.P.C., and s. 345(3) of the Code of Criminal Procedure have to
be read in the humane light of Parts III and IV, further illumined by the
Preamble to the Constitution. In Sunil Batra a Constitution Bench of this Court
has observed:
"Consciously and deliberately we must
focus our attention, while examining the challenge, to one fundamental fact
that we are required to examine the validity of a pre-constitution statute in
the context of the modern reformist theory of punishment, jail being treated as
a correctional institution" "Cases are not unknown where merely on
account of a long lapse of time the Courts have commuted the sentence of 122
death to one of life imprisonment on the sole ground that the prisoner was for
a long time hovering under the formenting effect of the shadow of death."
"The scheme of the Code, read in the light of the Constitution, leaves no
room for doubt that reformation, not retribution, is the sentencing lode-
star." (emphasis added)
2. The retributive theory has had its day and
is no longer valid. Deterrence and reformation are the primary social goals
which make deprivation of life and liberty reasonable as penal panacea.
3. The current ethos, with its strong
emphasis on human rights and against death penalty, together with the ancient
strains of culture spanning the period from Buddha to Gandhi must ethically
inform the concept of social justice which is a paramount principle and
cultural paradigm of our Constitution.
4. The personal and social, the motivational
and physical circumstances, of the criminal are relevant factors in adjudging
the penalty as clearly provided for under the new Code of 1973. So also the
intense suffering already endured by prison torture or agonising death penalty
hanging over head consequent on the legal process.
5. Although the somewhat absolescent
M'Naughten Rules codified in s. 84 of the Penal Code alone are exculpatory
mental imbalances, neurotic upsets and psychic crises may be extenuatory and
the sense of diminished responsibility may manifest itself in judicial clemency
of commuted life incarceration.
6. Social justice, projected by Art. 38,
colours the concept of reasonableness in Art. 19 and non-arbitrariness in Art.
14. This complex of articles validates death penalty in a limited class of
cases as explained above. Maybe, train dacoity and bank robbery bandits,
reaching menacing proportions, economic offenders profit-killing in an
intentional and organised way, are such categories in a Third World setting.
Apart from various considerations which may
weigh with the Court, one consideration which may be relevant in given
circumstances, is the planned motivation that goaded the accused to commit the
crime. Largely in India death is caused not by a cool, calculated, professionally
cold blooded planning but something that happened on the spur of the moment. In
fact in faction-ridden society factions come to grip on a minor provocation and
a gruesome tragedy occurs.
123 But with the development of the complex
industrial society there has come into existence a class of murderers who
indulge in a nefarious activity solely for personal, monetary or property gain.
These white collar criminals in appropriate cases do deserve capital punishment
as the law now stands, both as deterrent and as putting an end to an active
mind indulging in incurably nefarious activities. It is such characteristics
that determine more or less the gravity and the character of the offence and
offender. We may venture that sometimes there is big money in the subtle
"murder" business disguised as economic offences or industrial
clashes; and there social justice in certain circumstances punctures 'soft'
justice and opts for lethal sentence. Where intractable mafia shows up in
murderous profusion, the sentence of death must, reluctantly though, defend
society.
7. The survival of an orderly society without
which the extinction of human rights is a probability compels the higher
protection of the law to those officers who are charged with the fearless and
risky discharge of hazardous duties in strategic situations. Those officers of
law, like policemen on duty or soldiers and the like have to perform their
functions even in the face of threat of violence sometimes in conditions of
great handicap. If they are killed by designers of murder and the law does not
express its strong condemnation in extreme penalisation, justice to those
called upon to defend justice may fail. This facet of social justice also may
in certain circumstances and at certain stages of societal life demand death
sentence.
8. When an environmental technologist, food
and drug chemist or engine manufacturer intentionally acts in the process,
abetted by the top decision-makers in the corporation concerned, in such manner
that the consumer will in all probability die but is kept wilfully in the dark
about the deadly consequence by glittering advertisement or suppressio veri, he
deserves dealth penalty for society's survival, if he fulfills the elements of
murder. Maybe, a re- definition of murder may be needed to make this legal
mandate viable. Parliamentarians and judicial personnel may benefit by the
observations made by Ralph Nader on American Law-in-action.
"In no clearer fashion has the
corporation held the law at bay than in the latter's paralysis toward the
corporate crime wave. Crime statistics almost wholly ignore corporate or
business crime; there is list of the ten most wanted corporations; the law
affords no means of regularly collecting 124 data on corporate crime; and much
corporate criminal behaviour (such as pollution) has not been made a crime
because of corporate opposition. For example, wilful and knowing violations of
auto, tire, radiation, and gas pipe-line safety standards are not considered
crimes under the relevant statutes even if lives are lost as a result. The
description of an array of corporate crimes in this forthright book reveals a
legal process requiring courage, not routine duty, by officials to enforce the
laws against such outrages.
The law is much more comfortable sentencing a
telephone coin box thief to five years than sentencing a billion- dollar
price-fixing executive to six weeks in jail. In one recounting after another,
the authors pile up the evidence toward one searing conclusion-that corporate
economic, product, and environmental crimes dwarf other crimes in damage to
health, safety and property, in confiscation or theft of other people's monies,
and in control of the agencies which are supposed to stop this crime and fraud.
And it all goes on year after year by blue-chip corporate recidivists.
Why ? It is easy to answer-"power."
But that is the beginning, not the end, of understanding."
9. 'Special reasons' necessary for imposing
death penalty must relate, not to the crime as such but to the criminal. The crime
may be shocking and yet the criminal may not deserve death penalty. The crime
may be less shocking than other murders and yet the callous criminal, e.g. a
lethal economic offender, may be jeopardizing societal existence by his act of
murder. Likewise, a hardened murderer or dacoit or armed robber who kills and
relishes killing, the raping and murdering to such an extent that he is beyond
rehabilitation within a reasonable period according to current psycho-therapy
or curative techniques may deserve the terminal sentence. Society survives by
security for ordinary life. If officers enjoined to defend the peace are
treacherously killed to facilitate perpetuation of murderous and often
plunderous crimes social justice steps in to demand death penalty dependent on
the totality of circumstances.
10. We must always have the brooding thought
that there is a divinity in every man and that none is beyond redemption. But
death penalty, still on our Code, is the last step in a narrow category where,
within a reasonable spell, the murderer is not likely to be cured and tends to
murder others, even within the prison or immediately on release, if left
alive-a king cobra which, by chronic habit, knows only 125 to sting to death
unless defanged if possible. The patience of society must be tempered by the
prudence of social security and that is the limited justification for
deprivation of fundamental rights by extinguishment of the whole human being.
The extreme penalty can be invoked only in extreme situations.
The criminology of higher consciousness
claims that by expanding inner awareness through meditational and yogic
techniques the worst offender can be reformed, if prisons can function more
fulfillingly and less fatuously a consummation devoutly to be wished ! Murderers
are not born but made and often can be unmade.
This claim, if experimented with and found
credible, goes a long way to remove from the scales of justice stains of human
blood. When this healing hope is developed adequately, may be the penal
pharmacopoeia may remove death sentence from the system. The journey is long
and we are far from home. Currently, our prisons often practice zoological, not
humanising strategies, as some competent reports and writings tend to prove.
What we have laid down is not in supersession
of those extenuating situations already considered by this Court as sufficient
to commute death sentence but is supplementary to them and seeks to streamline,
so that erratic judicial responses may be avoided.
In Ediga Annamma(supra), for instance, this
Court has held, and while endorsing, we repeat it for emphasis:
"Where the murderer is too young or too
old, the clemency of penal justice help him. Where the offender suffers from
socio-economic, psychic or penal compulsions insufficient to attract a legal
exception or to downgrade the crime into a lesser one, judicial commutation is
permissible. Other general social pressures, warranting judicial notice, with
an extenuating impact may, in special cases, induce the lesser penalty.
Extraordinary features in the judicial process, such as that the death sentence
has hung over the head of the culprit excruciatingly long, may persuade the
Court to be compassionate. Likewise, if others involved in the crime and
similarly situated have received the benefit of life imprisonment or if the
offence is only constructive, being under s. 302 read with s. 149, or again the
accused had acted suddenly under another's instigation, without pre-
meditation, perhaps the Court may humanely opt for life, even like where a just
cause or real suspicion of wifely indefility pushed the criminal into the
crime.
On the other hand, the weapons used and 126
the manner of their use, the horrendous features of the crime and hapless,
helpless state of the victim, and the like, steel the heart of the law for a
sterner sentence." In Srirangan v. State of Tamil Nadu the Court set aside
a death sentence even though three had been killed. That was a case of three
innocent lives put down without provocation and although the courts below had
concurrently inflicted death sentence, a Bench of three judges confining the
focus on sentence alone commuted the punishment. The crucial role of young age
(in his twenties) and a trace of mental imbalance in robbing the propriety of a
death impost even from such a ghastly case of tripe murder was emphasised.
This Court's observations on the sensitive
attitude to sentencing and the wide spectrums of considerations under s. 354(3)
Cr. P.C. are helpful here:
"The plurality of factors bearing on the
crime and the doer of the crime must carefully enter the judicial verdict. The
winds of penological reform notwithstanding, the prescription in s. 302 binds,
the death penalty is still permissible in the punitive pharmacopoeia of India.
Even so, the current of precedents and the relevant catena of clement facts,
personal, social and other, persuade us to hold that even as in Nanu Ram v.
State of Assam (AIR 1975 SC 762), the lesser penalty of life imprisonment will
be a more appropriate punishment here." A brief word about Lalla Singh.
That was a case of murder of three persons and the head of one of the deceased,
a lady, was severed. The trial judge awarded the extreme penalty to him who did
this gruesome deed. But the court reduced the sentence to life term grounded on
the long and agonising gap between the date of offence and the disposal of the
case by the Supreme Court:
"While we are unable to say that the
learned Sessions Judge was in error in imposing the extreme penalty, we feel
that as the offence was committed on 18-6-1971 more than six years ago, the
ends of justice do not require that we should confirm the sentence of death
passed on the first respondent." 127 We have read the penal Code (s. 302)
in harmony with the Procedure Code (s. 354(3)) and tuned up both the Codes to
receive the command of the Constitution. 'Too kind for too long to criminals'
is a cynical comment which comes with a call for revival of more hangings as a
gut reaction to a horrible crime, forgetting that crimelessness comes only from
higher consciousness. And, in a democracy, if such offences escalate beyond
endurance and such cries rise from all over, penal policy may change, whether
the judges and jurists and moralists and murderers relish it or not. Even so,
the basic humanity of mankind cannot be surrendered to panicky calls and
passionate reactions provoked by stray though shocking, events.
Two significant developments need to be
stressed before we conclude the general discussion. The first is the functional
failure, at the forensic level, of the meaningful provision in the Procedure
Code, 1973 intended to help the court to individualise sentencing justice to
fit the crime and the criminal.
The sentence of death can be imposed by the
Sessions Judge and it can only be executed after it is confirmed by the High
Court as provided in Chapter XXVIII of the Code.
The procedure prescribed for the trial of
sessions cases is contained in Chapter XVIII. Section 235 which is relevant for
this purpose reads as under:- "235(1) After hearing arguments and points
of law(if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge
shall, unless he proceeds in accordance with the provisions of section 360,
hear the accused on the question of sentence, and then pass sentence on him
according to law." A specific stage is prescribed in the trial of cases
tried by the Sessions Court in accordance with the procedure prescribed in
Chapter XVIII. After the prosecution evidence is complete and the accused is
called upon to enter the defence and if evidence is led on behalf of defence,
after the defence evidence is complete, the Court should hear arguments of the
Prosecutor and the advocate on behalf of the accused (see s. 234). Thereafter
comes s. 235 which obligates the Court to give a judgment. The question of
sentence does not enter the verdict or consideration at this stage. If the
accused is to be acquitted, the matter ends there. If the Court, upon
consideration of the evidence led before it, holds the accused guilty of any
offence it must pronounce judgment to the extent that it holds accused guilty
of a certain offence.
128 Thereafter a statutory duty is cast upon
the Court to hear the accused on the question of sentence. Sub-s. (2) obligates
the Court to hear the accused on the question of sentence. In fact, this
provision should be construed to mean that where the Court has to choose one or
the other sentence and if with a view to inflicting a certain sentence, special
reasons are required to be recorded, obviously the State which is the
prosecutor, must be called upon to state to the Court which sentence as
prosecutor it would consider appropriate in the facts and circumstances of the
case.
Where the accused is convicted for an offence
under s.
302, I.P.C., the Court should call upon the
Public Prosecutor at the stage of s. 235(2) to state to the Court whether the
case is one where the accused as a matter of justice should be awarded the
extreme penalty of law or the lesser sentence of imprisonment for life. If the
Public Prosecutor informs the Court that the State as Prosecutor is of the
opinion that the case is not one where extreme penalty is called for and if the
Sessions Judge agrees with the submission, the matter should end there.
If on the other hand the Public Prosecutor
states that the case calls for extreme penalty prescribed by law, the Court
would be well advised to call upon the Public Prosecutor to state and
establish, if necessary, by leading evidence, facts for seeking extreme penalty
prescribed by law. Those reasons and the evidence in support of them would
provide the special reasons according to the State which impel capital
punishment. It would be open to the accused to rebut this evidence either by
submissions or if need be, by leading evidence. At that stage the only
consideration relevant for the purpose of determining the quantum of punishment
would be the consideration bearing on the question of sentence alone and not on
the validity of the verdict of guilty. After considering the submissions and
evidence it would be for the Court with its extreme judicious approach and
bearing in mind the question that the extreme penalty is more an exception, to
determine what would be the appropriate sentence. This would ensure a proper
appreciation of vital considerations entering judicial verdict for determining
the quantum of sentence.
We hope the Bar will assist the Bench in
fully using the resources of the new provision to ensure socio-personal
justice, instead of ritualising the submissions on sentencing by reference only
to materials brought on record for proof or disproof of guilt.
The second major development is the amendment
of s. 302 IPC moved by Government and already passed by the Rajya Sabha doing
129 away with death penalty for murder save in exceptional categories. So far
as it goes, the benignity of the change reflects the constitutional culture we
have explained. The discretion still left, in our view, must be guided by the
mariner's compass we have supplied in this Judgment.
THE FACTS AND CONCLUSIONS
Having stated the law at length, we have to
apply it to the facts of the cases, which we proceed to state. After all,
"Let the facts be known as they are, and the law will sprout from the seed
and turn its branches towards the light". We may now state the facts
needed for the application of the principles set out above.
RAJENDRA PRASAD'S CASE A long-standing family
feud, with years-long roots, let to a tragic murder. The houses of Ram Bharosey
and Pyarelal had fallen out and periodic fuelling of the feud was furnished by
the kidnapping of a wife, the stabbing of a brother and the like. Lok Adalats
of village elders brought about truce, not peace. The next flare-up was a
murder by the appellant, a rash son of one of the feuding elders Pyarelal. He
was sentenced to life imprisonment (which means no reformation but hardening
process, since our jails are innocent of carefully designed programme of
re-humanizing but have an iatrogenic, inherited drill of de-humanising).
The young man, after some years served in
prison, was released on Gandhi Jayanti Day. But Gandhian hospital setting was,
perhaps, absent in the prison which, in all probability, was untouched by
reformation of diseased minds, the fundamental Gandhian thought. The result was
the release kept alive his vendetta on return, aggravated by the 'zoological'
life inside. Some minor incident ignited his latent feud and he stabbed Ram
Bharosey and his friend Mansukh several times, and the latter succumbed. The
'desperate character' once sentenced, deserved death this second time, said the
Sessions Court and the High Court confirmed the view.
An application of the canons we have laid
down directly arises. There is the common confusion here. A second murder is
not to be confounded with the persistent potential for murderous attacks by the
murderer. This was not a menace to the social order but a specific family feud.
While every crime is a breach of social peace, the assailant is bound over only
if he is a public menace. Likewise, here was not a youth of uncontrollable
violent propensities against the com- 130 munity but one whose paranoid
preoccupation with a family quarrel goaded him to go at the rival. The
distinction is fine but real. How do we designate him 'desperate' without blaming
the jail which did little to make a man out of the criminal clay? So long as
therapeutic processes are absent from prisons, these institutions, far from
being the healing hope of society, prove hardening schools to train desperate
criminals. The pitiless verse of Oscal Wilde is pitifully true even today:
"The vilest deeds, like poison weeds,
Bloom well in prison air;
It is only what is good in Man That wastes
and withers there" "Desperate criminal" is a convenient
description to brand a person. Seldom is the other side of the story exposed to
judicial view-the failure of penal institutions to cure criminality and their
success in breaking the spirit or embittering it.
Prasad's prison term never 'cured' him. Who
bothered about cure ? The blame for the second murder is partly on this
neglect.
Nothing on record suggests that Rajendra
Prasad was beyond redemption; nothing on record hints at any such attempt
inside the prison Lock-up of a criminal for long years behind stone walls and
iron bars, with drills of breaking the morale, will not change the prisoner for
the better Recidivism is an index of prison failure, in most cases. Any way,
Rajendra showed no incurable disposition to violent outbursts against his
fellow-men. We see no special reason, to hang him out of corporeal existence.
But while awarding him life imprisonment instead, we direct for him
mental-moral healing courses through suitable work, acceptable meditational
techniques and psychotherapic drills to regain his humanity and dignity.
Prisons are not human warehouses but humane retrieval homes.
Even going by precedents like Lalla Singh
(supra) this convict has had the hanging agony hanging over his head since
1973, with nearsolitary confinement to boot. He must, by now, be more a
vegetable than a person and hanging a vegetable is not death penalty. This is
an additional ground for our reduction.
THE KUNJUKUNJU CASE The next case is no
different in the result but very different on the facts. The scenario is the
usual sex triangle, terribly perverted. One 131 randy Janardanan-the
appellant-with a wife and two children, developed sex relations with a fresh
girl and the inevitable social resistance to this betrayal of marital fidelity
led to a barbaric short-cut by this in criminal of cutting to death the
innocent wife and the immaculate kids in the secrecy of night. To borrow the
vivid words of the courts below, 'deliberate', 'cold-blooded' was the act,
attended as it was with 'considerable brutality'. This ruled out mitigation and
supplied 'special reasons', according to both the courts below, for the awesome
award of death penalty.
Was that right ? If the crime alone was the
criterion, yes;
but if the criminal was the target, no.
The brucial question is whether the crime and
its horrendous character except to the extent it reveals irreparable depravity
and chronic propensity is relevant.
The innocent three will not be happy because
one guilty companion is also added to their number. Is Janardanan a social
security risk, altogether beyond salvage by therapeutic life sentence ? If he
is, the pall must fall on his cadayer. If not, life must burn on. So viewed, no
material, save juridical wrath and grief, is discernible to invoke social
justice and revoke his fundamental right to life. A course of anti-aphrodisiac
treatment or willing castration is a better recipe for this hypersexed human
than outright death sentence. We have not even information on whether he was a
desperate hedonist or any rapist with 'Y' chromosomes in excess, who sipped
every flower and changed every hour, so as to be a sex menace to the locality.
Sentencing is a delicate process, not a bling
man's buff. We commute the death sentence to life imprisonment.
THE DUBEY CASE There were three accused to
begin with. The appellant was convicted of the murder of three relatives and
sentenced to death. The other two were held guilty, by the Sessions Judge of an
offence of s. 302 read with s. 34 I.P.C. and awarded life imprisonment. The
appeal of the latter was allowed and that of the former dismissed both on crime
and punishment. The learned Judges expressed themselves thus:
"Considering that Sheo Shankar,
appellant caused the death of three persons so closely related to him, by
stabbing each of them in the chest one after the other, and that too on no
greater provocation than that there had been an exchange of abuses, I do not
see how it can be said that sentence of death errs on the side of severity. It
was urged that this appellant was only 17, 18 years old and so in view of 132
the ruling of the Supreme Court in Harnam v. State (AIR 1976 SC 2071), he
should not be sentenced to death. In the first place, the note of learned
Sessions Judge on his statement shows that he was 19, 20 years old and he had
understated his age. Secondly, I doubt that the observation of the Supreme
Court in the said case can be applicable to such a case of triple murder, where
such victim is deliberately stabbed in the chest." The whole reasoning
crumbles on a gentle probe. A thumbnail sketch of the case is that the
appellant, his father and his brother were angrily dissatisfied with a family
partition and, on the tragic day, flung the vessels over the division of which
the wrangle arose, went inside the house, emerged armed, picked up an
altercation eventuating in the young man (whose age was around 18 or 20)
stabbing to death three members of the other branch of the family. He chased
and killed, excited by the perverted sense of injustice at the partition. It is
illegal to award capital sentence without considering the correctional
possibilities inside prison.
Anger, even judicial anger, solves no
problems but creates many.
Have the courts below regarded the question
of sentence from this angle ? Not at all. The genesis of the crime shows a
family feud. He was not a murderer born but made by the passion of family
quarrel. He could be saved for society with correctional techniques and
directed into repentance like the Chambal dacoits.
What startles us is the way the adolescence
of the accused has been by-passed and a ruling of this Court reduced to a
casualty by a casual observation. Hardly the way decisions of the Supreme
Court, read with Art. 141 should be by-passed.
Had the appellant been only 18 years of age,
he would not have been sentenced to death as the High Court expressly states.
The High Court is right in stating so. Tender age is a tender circumstance and
in this country, unlike in England of old, children are not executed. Since the
age of the accused is of such critical importance in a marginal situation like
the present one, one should have expected from the courts below a closer
examination of that aspect.
Unfortunately, they have not got the accused
medically examined for his age nor have they received any specific evidence on
the point but have disposed of the question in a rather summary way: "In
the first place, the note of the learned Sessions Judge on his statement shows
that he was 19/20 years old and he had understated his age. Secondly, 133 I
doubt that the observations of the Supreme Court in the said case (AIR 1976 SC
2071) can be applicable to such a case of triple murder, where each victim is
deliberately stabbed in the chest." A judge is no expert in fixing the age
of a person and when precise age becomes acutely important reliance on medical
and other testimony is necessary. One cannot agree with this manner of disposal
of a vital factor bearing on so grave an issue as death sentence. Nor are we
satisfied with the court vaguely distinguishing a ruling of this Court. It is
not the number of deaths caused nor the situs of the stabs that is telling on
that decision to validate the non-application of its ratio. It is a mechanistic
art which counts the cadavers to sharpen the sentence oblivious of other
crucial criteria shaping a dynamic, realistic policy of punishment.
Three deaths are regrettable, indeed,
terrible. But it is no social solution to add one more life lost to the list.
In this view, we are satisfied that the
appellant has not received reasonable consideration on the question of the
appropriate sentence. The criteria we have laid down are clear enough to point
to the softening of the sentence to one of life imprisonment. A family feud, an
altercation, a sudden passion, although attended with extra-ordinary cruelty,
young and malleable age, reasonable prospect of reformation and absence of any
conclusive circumstance that the assailant is a habitual murderer or given to
chronic violence-these catena of circumstances bearing on the offender call for
the lesser sentence.
It is apt to notice in this context that even
on a traditional approach this is not a case for death sentence, if we are to
be belighted by the guidelines in Carlose John.
The murder there was brutal but the act was
committed while the accused were in a grip of emotional stress. This was
regarded as persuasive enough, in the background of the case, to avoid the
extreme penalty. The ruling in Kartar Singh related to a case of brutal murder
and of hired murderers with planning of the criminal project. In that background,
the affirmation of the death sentence, without any discussion of the guidelines
as between 'life' and 'death' awards was hardly meant as a mechanical formula.
It is difficult to discern any such ratio in that ruling on the question of
sentence in the grey area of life versus death.
The holding was surely right even by the
tests we have indicated but to decoct a principle that if three lives are
taken, death sentence is the sequel, is to read, without warrant, into that
decision a reversal of the process spread over decades.
134 Social defence against murderers is best
insured in the short run by caging them but in the long run, the real run, by
transformation through re-orientation of the inner man by many methods
including neuro-techniques of which we have a rich legacy. If the prison system
will talk the native language, we have the yogic treasure to experiment with on
high-strung, high-risk murder merchants. Neuroscience stands on the threshold
of astounding discoveries. Yoga, in its many forms, seems to hold splendid
answers. Meditational technology as a tool of criminology is a mascent-ancient
methodology. The State must experiment. It is cheaper to hang than to heal, but
Indian life-any human life-is too dear to be swung dead save in extreme circumstances.
We are painfully mindful that this Judgment
has become prolix and diffuse. But too many pages are not too high a price
where death sentence jurisprudence demands de novo examination to do justice by
the Constitution.
Much of what we have said is an exercise in
penal philosophy in the critical area of death sentence.
"Philosophizing is distrusted by most of
the professions that are concerned with the penal system. It is suspect for
lawyers because they are conscious that if the criminal law as a whole is the
Cinderella of jurisprudence, then the law of sentencing is Cinderella's
illegitimate baby." After all, the famous words of Justice Holmes
"The Law must keep its promises" must be remembered.
The appeals stand allowed and the death
sentences stand reduced to life imprisonment; and, hopefully, human rights
stand vindicated.
SEN, J. In an appeal confined to sentence
under Article 136 of the Constitution, this Court has not only the power, but
as well as the duty to interfere if it considers that the appellant should be
sentenced 'differently', that is, to set aside the sentence of death and
substitute in its place the sentence of imprisonment for life, where it
considers, taking the case as a whole, the sentence of death to be erroneous,
excessive or indicative of an improper exercise of discretion; but at the same
time, the Court must impose some limitations on itself in the exercise of this
broad power. In dealing with a sentence which has been made the subject of an
appeal, the Court will interfere with a 135 sentence only where it is
'erroneous in principle'. The question, therefore, in each case is whether
there is an 'error of principle' involved.
The Court has the duty to see that on the
particular facts and circumstances of each case the punishment fits the crime.
Mere compassionate sentiments of a humane feeling cannot be a sufficient reason
for not confirming a sentence of death but altering it into a sentence of
imprisonment for life. In awarding sentence, the Court must, as it should, concern
itself with justice, that is, with unswerving obedience to established law. It
is, and must be, also concerned with the probable effect of its sentence both
on the general public and the culprit.
In the three cases before us, there were
'special reasons' within the meaning of s. 354, sub-s. (3) of the Code of
Criminal Procedure, 1973 for the passing of the death sentence in each and,
therefore, the High Courts were justified in confirming the death sentence
passed under s.
368(a) of the Code. Indeed, they are
illustrative of the rare type of cases, that is, first degree murders, where a
death sentence is usually awarded in any civilised country.
These were cases of diabolical, cold blooded
brutal murders of innocent persons, that is, first degree murders of extreme
brutality or depravity. The inhumanity of some of these offenders defies
belief.
I had the advantage of reading the judgment
as originally prepared by my learned brother Krishna Iyer J., which, by
defining the class of cases in which a death sentence may be passed upon
conviction of a person for having committed an offence of murder punishable
under s.
302 of the Indian Penal Code, 1860, and by
putting a restrictive construction on the words "special reasons"
appearing in s. 354, sub-s. (3) of the Code of Criminal Procedure, 1973, does,
in my opinion, virtually abolish the death sentence.
I was, therefore, constrained to write this
dissenting opinion, as it is difficult to share the views of my learned brother
Krishna Iyer J. He has now completely revised his draft judgment in which he
has endeavoured to meet my point of view, and I have had the advantage of
reading it. But I see no particular reason to change my views on the subject or
to re-write or revise my dissenting opinion as the matter essentially involves
a question of principle.
My learned brother Krishna Iyer J. pleads for
abolition of the death penalty, in accordance with the Stockholm Declaration of
the Amnesty International. He believes that the death penalty is not only
physically but psychologically "brutal", referring to the lengthy
period between sentencing and execution as a "lingering death". He
recalls the names of many patriots who faced the firing squad or died by the
hangmen's 136 noose, in the cause of the country's freedom, and pleads that it
is the duty of the State to protect the life of all persons without exception.
He asserts that by its application, the death penalty contradicts the very sanctity
of life which all human society claims to hold among the highest values. He
tells us that almost all civilised countries have abolished it as a symbol of
their respect for human life, and expresses deep anguish that we, in our
country, still cling to it with little regard to the basic rights of the man.
I fully reciprocate the feelings of my
learned brother Krishna Iyer J. in so far as he speaks of the barbarity
involved in killing of patriots who have sacrificed their lives in the
country's struggle for freedom. The citizen's right to life and personal
liberty are guaranteed by Article 21 of the Constitution irrespective of his
political beliefs, class, creed or religion. The Constitution has, by Article
21 itself forged certain procedural safeguards for protection to the citizen of
his life and personal liberty.
The idealistic considerations as to the
inherent worth and dignity of man is a fundamental and pervasive theme of the
Constitution, to guard against the execution of a citizen for his political
beliefs.
1, however, must enter a dissent when my
learned brother Krishna Iyer J. tries to equate a patriot with an ordinary
criminal. The humanistic approach should not obscure our sense of realities.
When a man commits a crime against the society by committing a diabolical,
cold- blooded, pre-planned murder, of an innocent person the brutality of which
shocks the conscience of the Court, he must face the consequences of his act.
Such a person forfeits his right to life.
The main thrust of his judgment is the
decision of the Supreme Court of the United States of America in Furman v. Georgia
am afraid, Furman no longer holds the field even in the United States. I shall
deal with this aspect in detail at a later stage.
The constitutionality of the death sentence
provided for the offence of murder under s. 302 of the Indian Penal Code is not
before the Court. I fail to appreciate how can we say that imposition of death
penalty, except in the classes of cases indicated by my learned brother, would
be violative of Articles 14, 19 and 21 of the Constitution. The question really
does not arise for our consideration. In Jagmohan Singh v. State of U.P. this
Court rejected the contention that capital punishment for an offence of murder
punishable under s. 302 infringes Article 19 of the Constitution in as much as
it could not be said that such punishment was unreasonable or not required in
public interest. It further held that s. 302 was not violative of Article 14 as
it did not suffer by the vice of excessive delegation of legislative functions,
merely because it does not provide for the cases in which a Judge should sentence
the accused to death and the cases in which he should sentence him to life
imprisonment. It was observed that the exercise of judicial discretion in the
matter of fixing the degree of punishment was based on well recognised
principles and on the final analysis, the safest possible safeguard for the
accused. Nor it could be said that s. 302 confers uncontrolled and unguided
discretion to Judges in the matter of sentence and is, therefore, hit by
Article 14. The Court further held that s. 302 did not contravene Article 21 of
the Constitution insofar as the trial was held as per provisions of the Code of
Criminal Procedure 1973 and the Evidence Act 1872 which were undoubtedly part
of the procedure established by law.
I, therefore, take it that the opinion of my
learned colleague that imposition of a death sentence in a case outside the
categories indicated would be constitutionally invalid, is merely an expression
of his personal views. As Judges we are not concerned with the morals or ethics
of a punishment. It is but our duty to administer the law as it is and not to
say what it should be. It is not the intention of this Court to curtail the
scope of the death sentence under s. 302 by a process of judicial construction
inspired by our personal views. The question whether the scope of the death
sentence should be curtailed or not, is one for the Parliament to decide. The
matter is essentially of political expediency and, as such, it is the concern
of statesmen and, therefore, properly the domain of the legislature, not the
judiciary Two propositions, I think, can be stated at the very outset:
(1) It is constitutionally and legally
impermissible for this Court while hearing an appeal by special leave under
Art. 136 of the Constitution, on a question of sentence, to re-structure s. 302
of the Indian Penal Code, 1860 or s. 354, sub-s. (3) of the Code of Criminal
Procedure, 1973, so as to limit the scope of the sentence of death provided for
the offence of murder under s. 302.
(2) It is also not legally permissible for
this Court while hearing an appeal in a particular case where capital sentence
is imposed, to define the expression "special reasons" occurring in
sub-s. (3) of s. 354 of the Code, in such a manner, by a process of judicial
interpretation, which virtually has the effect of abolishing the death
sentence.
138 Section 302 of the Indian Penal Code,
1860, provides:
"Whoever commits murder shall be
punished with death, or imprisonment for life, and shall also be liable to
fine" Sub-section (3) of s. 354 of the Code of Criminal Procedure, 1973, enacts:
"When the conviction is for an offence
punishable with death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the reasons for the
sentence awarded, and, in the case of sentence of death, the special reasons
for such sentence." The question of abolition of capital punishment is a
difficult and controversial subject, long and hotly debated and it has evoked,
during the past two centuries strong conflicting views.
Opinion as to whether the death penalty is
necessary in order to prevent an outraged community from taking the law into
its own hands has been sharply divided. Immanual Kant in his 'Philosophy of
Law', in upholding the death penalty observes:
"It is better that one man should die
than the whole people should perish for if justice and righteousness perish,
human life could no longer have any value in the world." "Even if a
Civilised Society resolve to dissolve itself with the consent of all its
members-as might be supposed in the case of People inhabiting an island resolve
to separate and scatter itself throughout the world-the last murderer lying in
the prison ought to be executed before the resolution is carried out".
This ought to be done in order that everyone may realise the dessert of his
deeds." Montesquieu in L'Esprit des Lois regarded the death penalty as
repugnant, but necessary-"the remedy of a sick society". John Stuart
Mill, made a very strong speech in the House of Commons(1) advocating the use
of the death penalty when it was applied to the most heinous cases. Attacking
the argument that this punishment was not a deterrent to crime, he said:
"As for what is called the failure of
death sentence, which is able to judge that. We partly know who those are whom
it have not deterred; but who is there who knows whom it has deterred, or how
many human beings saved who should have lived." 139 Mill felt that the
probability of an innocent person's suffering the death penalty was very slight
indeed. Judges and juries would let the guilty escape before the innocent would
suffer. If there were the slightest doubt of a man's innocence the death
sentence would not be imposed or carried out.
Sir Henry Maine, the English legal historian,
observed that punishment evolved from social necessity. The concept of
punishment as a form of expiation or atonement reaches far back into human
nature as well as into human history.
The notion that the threat of punishment by
the State will restrain the potential criminal is one of the most commonly accepted
justifications for it. The idea has a philosophical basis in the utilitarians'
concept of the rational man acting upon a deliberate calculation of possible
losses and gains. If men choose rationally among possible future courses of
action then surely the likelihood of a criminal course of action could be
decreased by attaching to it a quick, certain and commensurate penalty.
The value of capital punishment, as an aspect
of deterrence, was perhaps most strongly put forward and very clearly stated by
the great jurist, Sir James Fitzjames Stephen more than a hundred years ago:
"No other punishment deters man so
effectually from committing crimes as the punishment of death. This is one of
those propositions which it is difficult to prove, simply because they are in
themselves more obvious than any proof can make them. It is possible to display
ingenuity in arguing against it, but that is all. The whole experience of
mankind is in the other direction. The threat of instant death is the one to
which resort has always been made when there was an absolute necessity for
producing some result..No one goes to certain inevitable death except by
compulsion.
Put the matter the other way. Was there ever
yet a criminal who, when sentenced to death and brought out to die, would
refuse the offer of commutation of his sentence for the severest secondary
punishment ? Surely not. Why is this ? It can only be because 'All that a man
has will he give for his life'. In any secondary punishment, however terrible,
there is hope; but death is death; its terrors cannot be described more
forcibly." Supporters of capital punishment commonly maintain that it has
a uniquely deterrent force which no other form of punishment has or 140 could
have. The arguments adduced both in support of this proposition and against it
fall into two categories. The first consists of what we may call the 'common
sense argument' from human nature applicable particularly to certain kinds of
murders and certain kinds of murderers.
This, a priori argument proceeds on the view
that by doing so, the law helps to foster in the community a special abhorrence
of murder as "a crime of crimes". By reserving the death penalty for
murder the criminal law stigmatises the gravest crime by the gravest punishment,
so that the element of retribution merges into that of deterrence. The second
justifies the ethics of capital punishment. Whatever be the ultimate
justification for the punishment, the law cannot ignore the public demand for
retribution which heinous crimes undoubtedly provoke; it would be generally
agreed that, though reform of the criminal law ought sometimes to give a lead
to public opinion, it is dangerous to move too far in advance of it.
The movement to abolish death penalty started
with the humanitarian doctrine evolved by Marchese De Cesars Bonesana Beccaria,
Italian publicist. In 1764, Bonesana published the famous little treaties Dei
Delitti e della Pen. The French translation contained anonymous preface by
Voltaire. In the preface to this book first appeared the phrase "the
greatest happiness of the greatest number". It advocated the prevention of
crime rather than punishment, and promptness in punishment, where punishment
was inevitable; above all it condemned confiscation, capital punishment, and
torture.
Beccaria's ideas directly influenced the
reforming activities of many social thinkers and philosophers. This represented
a school of doctrine, born of the new humanitarian impulse of the Eighteenth
Century with which Rousseau, Voltaire and Montesquieu in France and Bentham in
England were associated, which came afterwards to be known as the classical
school.
Moved by compassionate sentiment of a humane
feeling, Beccaria asserted that all capital punishment is wrong in itself and
unjust. He maintained that since man was not his own creator, he did not have
the right to destroy human life, either individually or collectively. It is the
ultimate cruel, inhuman and degrading punishment, and violates the right to
life. Its basic value, he affirmed, is its incapacitative effect. Beccaria
claimed capital punishment was justified in only two instances, first if an
execution would prevent a revolution against a popularly established
government, and secondly, if an execution was the only way to deter others from
committing a crime.
141 The policy of retribution is justified
and sustained by an ethical philosophy which regards punishment as an integral
and inviolative element in wrong doing, as a moral necessity. This doctrine has
been consistently maintained by intuitive or idealistic philosophers from Plato
to Thomas Aquinas and from Kant to T. H. Green and his disciples. The deterrent
effect of punishment has also been claimed by adherents of this school but its
widespread adoption as a policy has probably been due more to the influence of
the utilitarian philosophy of Bentham, Paley, John Stuart Mill and Herbert
Spencer, which makes the welfare of the society "the greatest good of the
greatest number", the aim of all moral activity. It is this utilitarian
philosophy which is now in the ascendent in penal legislation and which governs
the view of most modern penologists. It still survives in the death penalty for
murder and in the drastic penalties imposed for rape and other crimes which are
peculiarly offensive to the moral sentiment as to the sense of security of the
community.
Nearly everywhere, in the more recent stages
of social development, this motive has been supplemented, but never wholly
supplanted, by an unquestioning faith in the deterrent effect on potential
offenders of exemplary, i.e., drastic, punishment, inflicted on actual
offenders which, in practice if not in theory, comes to much the same thing.
The doctrine of the "individualisation
of punishment", that is to say of the punishment of the individual rather
than the crime committed by him, which is of commanding importance in present
day penology, is only a development of the neo-classical school of the
revolutionary period in France, which modified Beccaria's rigorous doctrine by
insisting on the recognition of the varying degrees of moral, and therefore,
legal responsibility. Its fundamental doctrine is that the criminal is doomed
by his inherited traits to a criminal career and is, therefore, a wholly
irresponsible actor. Society must, of course, protect itself against him, but
to punish him as if he were a free moral agent is as irrational as it is
unethical.
In his 'Introduction to Principles of Morals
and Legislation', the great work in which the English philosopher and jurist,
Jeremy Bentham was engaged for many years, was published in 1789. Mankind, he
said, was governed by two sovereign motives-pain and pleasure, and the
principle of utility recognised this subjection. The object of all legislation
must be the "greatest happiness of the greatest number". On the legal
side, he deduced from the principle of utility that since all punishment is
itself evil it ought only to be admitted "so far as it promises to exclude
some greater evil".
142 The English social reformer, Sir Samuel
Romilly devoted himself primarily to reform the criminal law of England, then
at once cruel and illogical, by attempting to influence Parliament to pass
three Bills designed to repeal the death penalty for theft. By statute law
innumerable offences were punishable with death in England, but, as wholesale
execution would be impossible, the larger number of those convicted and
sentenced to death at every assizes were respited, after having heard the
sentence of death solemnly passed upon them. This led to many acts of
injustice, as the lives of convicts depended on the caprice of the Judges,
while, at the same time it made the whole system of punishment and of the
criminal law ridiculous. In 1808 Romilly managed to repeal the Elizabethian
statute, which made it a capital offence to steal from the person. In the
following year, three equally sanguinary statutes were thrown out of the House
of Lords under the influence of Lord Ellenborough. Year after year the same
influence prevailed, and Romilly saw his bills rejected; but his patient
efforts and his eloquence ensured victory eventually for his cause by opening
the eyes of Englishmen to the barbarity of their criminal law. In spite of the
efforts which Romilly made to procure the abolition of the death penalty in
many cases, it should be noted, however, that he was not an
"abolitionist" in the sense of the term today.
All punishment properly implies moral
accountability.
It is related to injury and not only to
damage or danger, however great. Capital punishment does so in an eminent
degree. It is directed against one who is ex-hypothesi an inhuman brute, i.e.
it is imposed simply to eliminate one who is held to have become,
irretrievably, a liability or a menace to society.
As Aristotle put it, just retribution
consists not in simple but in proportionate retaliation, that is, in receiving
in return for a wrongful act not the same thing but its equivalent, and, what
this is, can only be estimated if the whole context is taken into account. It
may be argued that murder for instance, as the one crime which is quite
irrevocable, as justly met by the one punishment which is equally irrevocable,
a unique form of punishment for a unique form of crime. To reduce its
punishment to something of the same order as other punishments, is to weaken
the abhorrence which it should express and diffuse. On this showing an
execution expresses absolute condemnation. It both satisfies and educates the
public conscience; for those in authority thus deepen in themselves and diffuse
throughout the community their sense of "the wickedness of wickedness, the
criminality of crime". It is an outward and visible sign of the utmost
imaginable disgrace. The death 143 penalty has signified shame and infamy and
has generally been understood to do so; and all this is expressed in symbolic
action of a kind that is both spontaneous and calculated to arrest attention.
If the appeal of capital punishment were
merely to fear of death, it would be a very inefficient protector of society.
In civilized society and in peacetime, government relies for obedience more on
its moral prestige than on violent repression of crime. Punishment only
protects life effectively if it produces in possible murderers, not only fear
of the consequences of committing murder, but a horrified recoil from the thing
itself. It can only achieve this, more ambitious, task, if sentence of death is
felt to embody society's strongest condemnation of murder and keenest sense of
its intolerable wickedness. It is not by the fear of death but by exciting in
the community a sentiment of horror against any particular act that we can hope
to deter offenders from committing it. The Royal Commission sucinctly explained
the normal character of capital punishment thus:
"by building up in the community, over a
long period of time, a deep feeling of peculiar abhorrence for the crime of
murder." The criminality of a crime consists not only in the criminal act,
but in what that signifies. Its immediately apparent features, the obvious
damage to person or property or to public security, are symptoms of a deeper
disorder. It betokens, and it fosters, an attitude in man to man, of reckless
selfishness, deceit or malice, which is incompatible in the long run with any
decent social life. In any advanced society it is, in part at least, on account
of this wider character, less easily discerned, that the graver offences are
punished. Also punishment like crime has a dual character. The penalty which
the convicted murderer incurs is not simply death, but death in disgrace and
death as a disgrace. In so far as capital punishment is a threat, the threat
consists not only in death but in infamy. Any theory which ignores this
characteristic is certainly defective.
For a long time the problem of capital
punishment was regarded as a purely academic question. Everything that could be
said appear to have been said on a question which Beccaria had brilliantly
brought to public notice in the second half of the Eighteenth Century, but
which had been exhausted by subsequent controversy. Punishment inflicted by the
State in response to a violation of the criminal law 144 has been justified in
various ways. It has been seen as society's vengeance upon the criminal as
atonement by the wrong doer, as a means of deterring other criminals, as
protection for the law-abiding and as a way of rehabilitating the criminal. The
individual who has inflicted harm on another, runs the revenge argument, should
be made to suffer in return; for only an act of vengeance can undo the harm
that has been done and assuage the suffering of the victim.
As against this, some social reformers have
maintained that punishment ought to be decent to transform the values and
attitudes of the criminal so that he no longer wishes to commit illegal acts.
The problem, of course, has been to discover how to do it. Theories of
rehabilitation are largely speculative, since there is lack of scientific
evidence to support them. Nevertheless, it has been influential in the
development of modern penology.
In England, during the Nineteenth Century,
Disraeli and Gladstone, the leading politicians in the country, took no part in
the movement to abolish the death penalty.
Leadership in this crusade fell to lesser
men, and the abolitionists formed a distinct minority. The majority in the
House of Commons evidently felt, as Sir John Holkar, the Attorney General felt,
that criminals were deterred from adding deliberate murder to their other
crimes by the fear of the death penalty. In the period between the first and
second world wars, however, the emergence of authoritarian systems of penal law
raised once more the problem of capital punishment in a particularly acute
manner. At the end of the Second World War, there was a renewed upsurge of this
humanitarian tendency which, like the desire to safeguard human rights and
human dignity, had been the mainspring of the movement for the abolition of the
death penalty.
Several attempts were made to break the
parliamentary fortress but without any success. Very little was actually
accomplished by the abolitionists in Parliament till after the second world
war, when the Labour Government came to power. In between 1949 and 1953 the
Royal Commission on Capital Punishment carried out an exhaustive inquiry.
The Royal Commission made a study of this complex
and many-sided task. It held its inquiries not only in Great Britain but also
in the United States and several European countries and heard evidence from
every possible source. It listened to an impressive array of witnesses. In
addition to all this, information was collected from Commonwealth countries and
several other European countries. Its 145 result is reflected in the Royal
Commission Report on Capital Punishment which presents a comprehensive and
dispassionate picture of the whole subject.
The Commission was debarred by their terms of
reference from considering the question of abolition of capital punishment, but
in the course of their investigation they naturally accumulated a good deal of
information which is just as relevant to this issue as to the question of
limiting the scope of capital punishment. The report contains a good deal of
material on the "Deterrent Value of Capital Punishment". It is
evident from the report that some of the most distinguished judicial witnesses
including Lord Goddard, the Lord Chief Justice of England, Lord Denning, the
Master of Rolls, and some very experienced Judges like Mr. Justice Humphreys,
Sir John Beaumont, Mr. Justice Byrne, were firmly of the view that the capital
punishment must be retained for the protection of the society. They went to the
extent of expressing their strong disapprobation of the free use of prerogative
as being interference by the Executive with the Judiciary and argued that the
exercise of the power should be narrowly confined.
As a justification for retention of death
penalty, some of these distinguished Judges put forth the principle of
retribution, and the others placed greater importance on deterrence. There was,
however, general agreement that justification for the capital sentence, as for
other salient features of the penal system must be sought in the protection of
the society and that alone.
The punishment of death, said Lord Denning to
the Royal Commission, should reflect adequately the revulsion felt for the
gravest of crimes by the great majority of citizens.
But, in saying this, he implied that
legislators and Judges share this revulsion themselves; otherwise indeed their
action would be morally indefensible. Their aim then should be, not only to
strike terror nor even to awaken popular indignation in a direction convenient
to Government. It would be to arouse in all and sundry their own indignant
repudiation of a wicked act and, at the same time, to deepen it in themselves.
In this vein, sentence of death has been pronounced, carried out and acclaimed,
with stern satisfaction. This principle of action is still avowed in high
places, and, I believe, it is semi-consciously at work more often than it is
avowed, for it is said that otherwise, the conscience of the community would be
revolted if the criminal were allowed to live. In the same vein, Lord Chief
Justice Goddard said in 1948:
146 "The public conscience will not
tolerate that persons who deliberately condemn others to painful, and it may be
lingering, deaths should be allowed to live .... Some of these bestial
murderers should be destroyed." The use of capital punishment has declined
in recent times, although it is still permitted by law, as in this country, for
various kinds of offences like treason, murder etc. The issue of abolishing it
has aroused much controversy. The advocates of capital punishment claim it as a
necessary deterrent to crime and relatively painless if done properly. Even
where it has been legally retained, as here, capital punishment is now seldom
employed except in very grave cases where it is a crime against the society and
the brutality of the crime shocks the judicial conscience.
Indeed, the death penalty satisfies the
society's retributive goals and is still presumed to be a deterrent to
potential offenders. Of the three purposes commonly assigned to
punishment-retribution, deterrence and reformation- deterrence is generally
held to be the most important, although the continuing public demand for
retribution cannot be ignored. Prima facie, the death sentence is likely to
have a stronger effect as a deterrent upon normal human beings than any other
form of punishment. There is some evidence that this is, in fact, so and also
that abolition may be followed by an increase in homicides and crimes of
violence.
In brief, people are believed to refrain from
crime because they fear punishment. Since people fear death more than anything
else the death penalty is the most effective deterrent.
In Britain, following the Report of the Royal
Commission on Capital Punishment, the Homicide Act, 1957 was enacted due to the
growing pressure of public opinion to mitigate the rigour of the criminal law.
(1=6) It brought about a division of criminal homicide into degrees of murder.
It resulted in the establishment of a distinction between capital and
non-capital murders. It not only eliminated long-standing iniquities and
rigidities in the law of murder such as the doctrine of "constructive
malice", but also brought the law into accord with modern criminological
thoughts by the importation of the doctrine of "diminished
responsibility".
147 By s. 7 the Act abolished the liability
to suffer the death penalty on conviction of murder and substituted the
sentence of imprisonment for life by s. 9, sub-s. (1) Except in cases of first
degree murders falling within s. 5 or s. 6. Section 5 reserved the death
penalty for five classes of first degree murders, namely:
(i) any murder done in the course or
furtherance of theft;
(ii) any murder by shooting or by causing an explosion;
(iii)any murder done in the course or for the
purpose of resisting or avoiding or preventing a lawful arrest, or of effecting
or assisting an escape or rescue from legal custody;
(iv) any murder of a police officer acting in
the execution of his duty or of a person assisting a police officer so acting;
and (v) in the case of a person who was a prisoner at the time when he did or
was a party to the murder, any murder of a prison officer acting in the
execution of his duty or of a person assisting a prison officer so acting.
Sub-section (2) of s. 5 provided for death
penalty on the principal assailant and not his accessories before the fact,
where a group of persons made a murderous assault causing grievous bodily hurt
resulting in death. The distinction drawn in felonies between principals in the
first and second degree and accessories before the fact have since been
abolished by virtue of the Criminal Law Act 1967, s. 1, and all these
participants have to be punished in accordance with the Accessories and
Abettors Act 1861.
Section 6 provided the death penalty for
repeated murders.
The cases in which the death penalty was
retained were those where, in the view of the Government, murder was most
dangerous to the preservation of law and order, and where the death penalty was
likely to be a particularly effective deterrent. The death penalty for murder
was thereafter temporarily abolished for a period of five years, as an
experimental measure by the Murder (Abolition of Death Penalty) Act 1965. This
Act was to expire on July 31, 1970 but was made permanent by resolution of both
Houses of Parliament.
The punishment for murder in Britain is now
imprisonment for life by s. 1, sub-s. (1) of the Murder (Abolition of Death
Penalty) Act 148 1965. On sentencing any person convicted of murder to
imprisonment for life, the Court may at the same time declares a period which
it recommends to the Secretary of State as the minimum period which in its view
should elapse before the Secretary of State orders the release of that person
on licence under s. 27 of the Prison Act 1952. In R. v. Flemming it has been
suggested that no such recommendation should be for a period of less than
twelve years.
It must, however, be observed that in Britain
a sentence of death can still and only be awarded for high treason (Treason Act
1814) s. 1; piracy with violence (Piracy Act 1837) s. 2; setting fire to the
Queen's ships, arsenals etc. (Dockyards etc. Protection Act 1772) s. 1.
When a person is convicted of treason,
sentence of death must be pronounced, but in case of piracy with violence and
setting fire to the Queen's ships, arsenals, etc., it may be merely recorded.
Sentence of death cannot, however, be pronounced on or recorded against an
expectant mother [Sentence of Death (Expectant Mothers) Act 1931] s. 1, or
against a person who was under the age of eighteen when the offence was
committed (Children and Young Persons Act 1933) s. 53 (1).
The successful campaign to abolish the death
penalty in Britain has been achieved in a comparatively short period of time by
no more than a handful ardent penal reformers like Sydney Silverman who carried
out the unfinished work of Romilly and other reformers, pertinacious in their
lobbying and propaganda, in the face of majority opinion favouring retention of
an admittedly barbaric but, to that majority, necessary penal instrument. If
the final debates were protracted-Silverman's private members' Bill (with
invaluable Legislative time given by the Government) was introduced on December
4, 1964, and reached the Statute Book only on November 2, 1965-the history of
the campaign is a remarkable testament to British democracy which can convert
convinced minority opinion into progressive legislative action Due to an
increase in the incidence of criminal behaviour, and steady rise in the volume
of reported crime, there is a genuine public concern in Britain for re-
assessment of the penal policy of the Government.
149 D.A. Thomas in his article
"Development in Sentencing 1964-1973" observes:
"As a society, we have made inconsistent
demands on our official system of social control expecting greater security
from violence, disorder and depreciation and simultaneously requiring that
penal sanctions become less rigorous and more adopted to the individual
offender." The learned author proceeds to say:
"The provisions of the Murder (Abolition
of Death Penalty) Act 1965 provides a simple illustration. Taken in isolation,
they provide that a person convicted of murder shall be sentenced to life
imprisonment, and the judge passing such a sentence may make a recommendation
that a specified minimum period should elapse before the offenders may be
released on licence. The mandatory life sentence, part of the political price
of the abolition of the death penalty, cannot be defended on any rational
grounds." And then concludes:
"In assessing the future trend of penal
policy in this country, it is probably wise to bear in mind that the problems
facing the criminal justice system are unlikely to diminish during the next
decade of their own accord-things will almost certainly become worse rather
than better. There seems to be no reason to suppose that the relatively steady
rate of increase in the volume of reported crime over the last ten years will
not continue." The two recent decisions of the Privy Council in Eaton
Baker v. The Queen and Michael de Freitas v. George Ramoutar Benny are
completely destructive of the theory that the death penalty is per se cruel and
unusual punishment, and (2) alternatively, the inordinate delay in carrying it
out, makes it so. In Eaton Baker's case the appeal was on a question of
sentence. The issue was whether the Court of Appeal of Jamaica was right in
sentencing to death the two youngmen who when they committed the murder were under
the age of eighteen years, but when they were convicted of the offence and
sentenced to death, had both attained the age of 18 years. The mandatory
sentence of death upon conviction for murder is imposed 150 by s. 2 of the
Offences against the Person Act 1925. The exception on account of youth is
contained in s. 29(1) of the Juveniles Law which interdicts that a sentence of
death shall not be pronounced on or recorded against a person under the age of
18 years. The Judicial Committee while holding that the statutory exemption
from death penalty under s. 29(1) of the Juveniles Law was not applicable,
observed that the time for ascertaining whether the appellants were to be
treated as Juveniles was the date on which the sentence was passed and not the
date of the offence. As to the constitutional issue, the Judicial Committee
held that when a person was held guilty of a charge of murder, the death
sentence passed on him cannot be treated as a contravention of s. 20(7) of the
Constitution of Jamaica, stating:
"One's opinion as to whether the
consequences of giving effect to the sub-section would be irrational or unjust
is inevitably coloured by whether one starts with the belief that capital
punishment should be abolished for all offences except, perhaps, for treason-a
view accepted by the legislature, if not by public opinion in general, in the
United Kingdom; or with the contrary belief that capital punishment is normally
the appropriate penalty for murder-a view which the continuance in force of
section 2 of the Offences against the Person Law suggests is accepted by the
legislature in Jamaica." (Emphasis supplied).
In de Freitas case the Privy Council
confirmed the sentence of death passed by the Court of Appeal of Trinidad and
Tobago, and held that there was no violation of the human rights and
fundamental freedoms guaranteed under ss. 1 and 2 of the Constitution of
Trinidad and Tobago inasmuch as the sentence of death was passed according to
the "due process of law". In repelling the alternative argument based
upon delay, it observed that " the delay was of the appellant's own
making" and he could not put forth this as a ground for commutation of the
sentence of death. It stated:
"It is not contended that the executive
infringed the appellant's constitutional rights by refraining from executing
him while there were still pending legal proceedings that he himself had
instituted to prevent this execution." There was evidence that prior to
independence, the normal period spent in condemned cell by the prisoner before
execution was five months and that this practice was sufficient to give rise to
an 'unwritten rule of law' in force at the commencement of the Constitution.
The contention was that the executive was, therefore, bound to so organise the
procedure for carrying out the death sentence that the 151 average lapse of
time is not more than five months, and the carrying out of the death sentence
beyond the period was incompatible with the right of the individual under s. 1
(a) of the Constitution not to be deprived of life "execpt by due process
of law" because it involves the imposition of "cruel and unusual
punishment" within the meaning of s. 2,(b). The Judicial Committee
rejected the contention saying:
"This contention in their Lordships'
view needs only to be stated to be rejected. Not only does it involve
attributing to the expression "unwritten rule of law" in section
105(1) of the Constitution a meaning which it is incapable of bearing, but it
conflicts with the very concept of the nature of law." That takes us to
the decision of the Supreme Court of the United States of America in Furman v.
Georgia (supra) in which my learned brother Krishna Iyer J. strongly relies.
There, the question was whether the death
penalty at least as generally practised in the United States, per se, was
'cruel and unusual' because the imposition of capital punishment "does not
comport with human dignity" or because it was "morally
unacceptable" and "excessive" and thus violative of the Eighth
Amendment.
In the United States of America, the death
penalty has paradoxcally existed more or less harmoniously with humane theories
of criminal justice for over two hundred years. The Eighth Amendment prohibits
'cruel and unusual punishment'.
The Eighth Amendment's ban on cruel and
unusual punishment has raised some very difficult moral issues. The Supreme
Court applied various standards in interpreting the provision. In Trop v.
Dulles the Court by a majority of five to four, refused to consider "the
death penalty as an index of the constitutional limit on punishment",
stating:
"Whatever the arguments may be against
capital punishment...the death penalty has been employed throughout our history
and, in a day when it is still widely accepted, it cannot be said to violate
the constitutional concept or cruelty." Chief Justice Warren, speaking for
Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Whit takar, asserted
that:
"this Court has had little occasion to
give precise content to the Eighth Amendment", that it content is not static,
but 152 "must draw its meaning from the evolving standards of decency that
mark the progress of a maturing society." This amendment whose "basic
concept is nothing less than the dignity of man" guarantees "the
principle of civilised treatment." There began concerted legal attacks on
the constitutionality of capital punishment in the 1960s, stimulated in part by
the fact that those receiving death sentences were disproportionately Blacks.
The issue as to the constitutionality of the death penalty in a State usually
arose in the Supreme Court of the United States on procedural grounds, that is,
on the question of fairness of the procedural aspect and its application, viz.,
the practice under which state statutes left a jury to move out the death
penalty at its discretion, with no standards of any sort to guide them, or the
application of the penalty without judicial standards. In McGoutha v.
California the Supreme Court rejected the contention holding that the absence
of any guidelines was not a violation of "due process". Mr. Justice
Harlan thought it would be impossible to draft statutory standards for this
purpose, saying:
"To identify before the fact these
characteristics of criminal homicides and their perpetrators which call for the
death penalty, and to express these characteristics in language which can be
fairly understood and applied by the sentencing authority, appear to be tasks
which are beyond present human ability." In Furman v. Georgia, the Court
by a majority of five to four ultimately held that capital punishment, at least
as generally administered, did violate the Eighth Amendment. It held that
imposition of the death penalty in the three cases, one for murder and two for
rape, constituted cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments. The Court issued a brief per curiam order, followed by
substantial statements by every member of the Court. The judgment in the case
was reversed and the cases remanded for further proceedings. Each of the five
majority Justices and four dissenters wrote a separate opinion, supporting his
position.
The five Justices in the majority each wrote
a concurring opinion which approached the matter from a different angle so that
clear categorisation is impossible.
It can thus be seen that the multiple
opinions did not rule out altogether re-imposition of the death penalty in the
future provided there was legislative structuring of a permissible system 153
providing for sufficient procedural safeguards. This is exactly what has happened
in the United States where the death penalty has been re-imposed and the
judicial approach stands re-oriented.
Broadly stated, Mr. Justice Douglas, Mr.
Justice Stewart and Mr. Justice White held that the death Penalty as imposed,
is arbitrarily and infrequently meted out, in violation of the Eighth and the
Fourteenth Amendments. They took an analytic and empirical approach, appraising
the practice under the Eighth Amendment in the light of due process and equal
protection. Their concern was whether the death penalty was evenly applied, and
of course they found that it was not. This is reflected in the opinion of Mr. Justice
Douglas who held that the death penalty was cruel and unusual because applied
irregularly and "selectively to minorities whose members are few, who are
outcasts of society, and who are unpopular, but whom society is willing to see
suffer though it would not countenance general application of the same penalty
across the boards" Mr. Justice Stewart's comment was:
"These death sentences are cruel and
unusual in the same way that being struck by lightning is cruel and unusual.
For, of all the people convicted of rapes and murders in 1967 and 1968, many
just as reprehensible as these, the petitioners are among a capriciously
selected random handful upon whom the sentence of death has in fact been
imposed." Mr. Justice White conceded that the death penalty, while cruel
in "the dictionary sense", would nevertheless be justified if it
served "social ends". But he did not believe "that society's
need" for specific deterrence justifies death for so few when for so many
in like circumstances life imprisonment or shorter prison terms are judged
sufficient.
Mr. Justice Brennan and Mr. Justice Marshall
took a normative approach. They advocated the total abolition of the death
penalty because it is in all cases violative of the Eighth Amendment cruel and
unusual punishment clause.
For them, the Eighth Amendment posed a core
question of values; they were concerned less with fairness and equality and
more with mercy and charity. For Mr. Justice Brennan, "the primary
principle....is that a punishment must not by its severity be degrading to
human dignity". Mr. Justice Marshall, in by far the longest opinion of the
day pleaded for an humanistic approach. His impassioned conclusion was that
ending the death sentence would recognise "the humanity of our fellow
beings" and achieve "a major milestone in the long road up from
barbarism".
154 The opinions of the four dissenting
Justices were as important as the majority statements because any subsequent
challenges on Furman would incorporate their reasoning. Mr. Justice Blackman
and Mr. Justice Rehnquist, who are advocates of strict judicial conservation,
felt that the matter was essentially political, and properly the domain of the
legislature, not the judiciary.
Chief Justice Burger, admitting that since
the ruling a Trop v. Dulles (supra) in 1958, it is necessary to evaluate a
challenged punishment in terms of the "evolving standards of decency....
of a maturing society", felt nonetheless that there is no judicially
significant public opposition to capital punishment in the United States.
Pointing out that the decision rejecting the death penalty was essentially
based on procedural grounds, as the majority agreed that the arbitrary
infliction of the death penalty was unconstitutional, Burger contends that the
Eighth Amendment does not deal with procedure, and with only the substantive
nature of the punishment in question. He believes that the imposition of a
mandatory death penalty for certain offences would not be invalidated by the
holding in this case because a mandatory penalty could not be arbitrily meted
out.
Mr. Justice Powell dissented by establishing
that the constitutionality of the death penalty is supported by four factors,
viz., (i) the references to capital punishment in the Constitution, (ii) the
past Supreme Court decisions on the death penalty, (iii) the limitation of
judicial restraint, and (iv) the doctrine of separation of powers. He found
that the evidence of the petitioners fell short of satisfying their burdens of
persuasion with respect to these factors.
Due to the ambiguity of the Furman decision,
it is fortunate that the Supreme Court gave further indication of its
intentions regarding the death penalty in subsequent decisions. But Furman was
not determinative of the issue on the merits, namely, the constitutionality of
the penalty because it violates the Eighth Amendment cruel and unusual
punishment. It was widely assumed that the Court had not declared capital
punishment unconstitutional per se but only its unpredictable and fortuitous
use.
Since the Furman decision, the legislatures
of thirty- five states in the United States acted to tighten up the laws under
which the death penalty was to be imposed. They took two different approaches.
Some State including Georgia, Florida and Texas, established new procedures for
capital cases requiring sentencing judges and juries to 155 consider certain
specified aggravating or mitigating circumstances of the crime and the
offender. There was a bifurcated trial with pre-sentencing, hearing. Courts of
Appeal were given broader authority to decide whether the death penalty was
fair in the light of the sentences for similar offences These laws were
intended to redress the arbitrariness and racial prejudices renounced in
Furman. But the other States, including North Carolina, Louisiana and Oklahoma
sought to meet the Furman objections by removing all flexibility from the
sentencing process, though limiting the offences for which the death sentence
could be imposed.
Anyone found guilty of the specified offences
was to be sentenced to death automatically. The constitutionality of the
sentences imposed under such procedures has been upheld by five State Supreme
Courts.
On July 2, 1976, the Supreme Court of the
United States delivered the judgment it had postponed a year earlier. It handed
down five opinions dealing with the death penalty.
Three of these were concerned with the
mandatory sentence of death. All involved the crime of murder. The five cases
were: Gregg v. Georgia, Proffitt v Florida, Jurek v. Texas Woodson v. North
Carolina, and Roberts v. Louisiana.
The issue in the three cases dealing with
discretionary sentencing (Gregg, Proffitt and Jurek) was whether imposition of
the sentence of death for the crime of murder under the laws of the respective
states violated the Eighth and Fourteenth Amendments. In all three, the Court
reached the same conclusion, that the punishment of death did not invariably
violate the Constitution.
The Court's reasons in Gregg as to why the
death sentence was not a per se violation of the Eighth and Fourteenth
amendments were as follows: First, history and precedent do not support the
conclusion that the death sentence is a per se violation. Second, the evolving
standards of decency argument has been substantially undercut in the last four
years because a large segment of the enlightened population regards the death
penalty as appropriate and necessary, as seen in the new legislation passed in
response to Furman.
The Court came to the conclusion that the
death penalty was not inherently cruel and unusual. It served two principal
social purposes, 156 retribution and deterrence, and held that the death
sentence for the crime of murder was (1) not without justification, (2) not
unconstitutionally severe, and (3) not invariably disproportionate to the
crime.
The Court found that Furman mandated, where
discretionary sentencing was used there must be suitable direction and
limitation to minimise the risk of wholly arbitrary and capricious action. The
bifurcated trial with standards modelled after the Model Penal Code gives
juries just such guidance. Therefore, the concerns of Furman can be met by
carefully drafted statutes that ensure sentencing authorities are given
adequate information and guidance in making their decision. As a general
proposition, the Court concluded that these concerns were best met by
bifurcated proceedings with standards to guided the use of the evidence.
I wish to conclude this part of the judgment
by quoting Herbert L.A. Hart, who in his article on "Murder and the
Principles of Punishment: England and the United States, admirably sums up the
two points of view:
"There are indeed ways of defending and
criticising the death penalty which are quite independent of the utilitarian
position and of the questions of fact which the utilitarian will consider as
crucial. For some people the death penalty is ruled out entirely as something
absolutely evil which, like torture, should never be used however many lives it
might save. Those who take this view find that they are sometimes met by the
counter-assertion that the death penalty is some thin which morality actually
demands, a uniquely appropriate means of retribution or "reprobation"
for the worst of crimes, even if its use adds nothing to the protection of
human life.
"Here we have two sharply opposed yet
similar attitudes: for the one the death penalty is morally excluded; for the
other it is moral necessity; but both alike are independent of any question of
fact or evidence as to what the use of the death penalty does by way of
furthering the protection of society.
Argument in support of views as absolute as
these can consist only of an invitation, on the one hand, to consider in detail
the execution of a human being, and on the other hand, to consider in detail
some awful murder, and then to await the 157 emergence either of a conviction
that the death penalty must never be used or, alternatively, that it must never
be completely abandoned." The controversy over capital punishment is not
new. Its roots lie deep in human history, and its battles have been waged on
and off on a political level for almost two centuries. It is not necessary for
this Court to attempt to analyse the substantive merits of the cases for and
against the death penalty for murder. It is in my view, essentially, a question
for the Parliament to resolve and not for this Court to decide.
I feel that it is futile for us to attempt to
project our personal views in a matter which lies in the realm of political
decision-making, by focussing on a single controversy, the question of the
proper penalty for the crime of murder. The capital punishment controversy
falls within the strict limits of 'independent' parliamentary law- making, and
is a typical or representative of the kind of problems that leaders of
Parliament face every day. In short, the case for abolition of the death
sentence is political, not constitutional. The Government carries the
responsibility of law and order. That is the first and fundamental duty of any
Government. The Executive has the duty of advising the Government of the laws
it believes necessary for the national well-being. It is the duty of the
courts, including this Court, to administer the laws as they are.
The Law Commission, in its Thirty-fifth
Report has dealt with the question of abolition of capital punishment, of
limiting the scope of death sentence under s. 302, and of the mode of execution
of the sentence. It sent out questionnaires. Almost all the State Governments,
all High Court Judges, all the Bar Associations throughout the country, many
distinguished lawyers were in favour of retention of the death sentence. There
was, in fact, almost complete 'unanimity' of view on this complex question. The
Commission examined a large number of witnesses including many distinguished
Judges and lawyers and ultimately was in favour of its retention. It concluded
stating that - "Having regard to the conditions in India, to the variety
of social upbringing of its inhabitants, to the disparity of the level of
morality and education in the country, the vastness of its area, to the
diversity of its population and to the paramount need for maintaining law and
order, the country cannot risk the abolition of capital punishment." 158
Indeed, a distinguished lawyer while giving his evidence before the Joint
Committee of the Indian Penal Code Bill thought that the abolition of death
sentence would be a dangerous experiment and we should continue to have this
form of deterrent punishment till we reach "a certain state of
enlightenment".
The basic principle of the nineteenth century
Indian Penal Code, said Lord Macauley who drafted it, is 'the principle of
suppressing crime with the smallest possible amount of suffering(1) '. He lays
this down as an unassailable axiom rather than as a contention for debate.
Section 302 of the Indian Penal Code, 1860
gives the Court a discretion as to the punishment to be imposed for an offence
of murder and that discretion has to be exercised between the two alternatives
mentioned, namely, a sentence of death and a sentence of imprisonment for life.
Prior to the amendment of s. 367, sub-s. (5) of the Code of Criminal Procedure,
1898 by the Criminal Procedure Code (Amendment) Act, 1955 it was a well settled
principle that where a person was convicted for an offence of murder, the Court
was normally bound to sentence him to death unless there were extenuating or
mitigating circumstances. This rule was stated in Rattanlal's Law of Crimes,
21st ed., p. 813;
"The extreme sentence is the normal
sentence; the mitigated sentence is the exception. It is not for the Judge to
ask himself whether there are reasons for imposing the penalty of death but
whether there are reasons for abstaining from doing so The reason probably was
that this provision was not more than the restatement of the law as it stood in
England at that time, where till the year 1965 the only penalty for murder was
death, except in two specific cases.
The effect of the Criminal Procedure Code
(Amendment) Act, 1955, which repealed s. 367, sub-s. (5) of the Code with
effect from January 1, 1956, was to restore to the Court the discretion
conferred by s. 302 to award the appropriate sentence having regard to the
attendant circumstances, including the mitigating circumstances, if any. This
brought the law into conformity with the intentions of the framers of the Code.
As regards the death sentence, far from making it the normal sentence for an
offence of murder, they stated that it ought to be 'sparingly used'. Under s.
354, sub-s. (3) of the Code of Criminal Procedure, 1973, the law is now
entirely changed.
159 Under s. 354, sub-s. (3) of the Code of
Criminal Procedure, 1973, the Court is required to state the reasons for a
sentence awarded, and in the case of imposition of a sentence of death and
Judge has to record "special reasons" for imposing death sentence.
Punishment for murder as a rule should be life imprisonment and death sentence
is only an exception. In Balwant Singh's case, Ambaram's case and Sarveshwar
Prasad Sharma's case the Court held that it was neither necessary nor possible
to specify the "special reasons" which may justify the passing of death
sentence in a given case.
It would thus be obvious that it is neither
feasible nor legally permissible for this Court to give a definite connotation
to the expression "special reasons" occurring in s. 354, sub-s. (3)
of the Code of Criminal Procedure, 1973.
It is difficult to put "special
reasons" in a straight- jacket. Each case must depend on its own
particular facts.
The question of sentence must, in my view, be
left to the discretion of the Sessions Judge trying the accused. Under the
present Code, a trial for murder is divided into two stages. There is a
bifurcated trial. The first part of the trial is directed solely to the issue
of guilt or innocence, and concludes with the finding of the Sessions Judge on
that issue. At the end of the trial when he comes to a conclusion of guilt, he
has to adjourn the case for hearing the accused on the question of sentence.
Section 235, sub-s. (2) of the Code
specifically provides for an opportunity of hearing to the accused on the
question of sentence after a verdict of guilt is recorded against him. The
burden is upon the prosecution to make out a case for imposition of the extreme
penalty. Where a sentence of death is passed, the Sessions Judge has to make a
reference to the High Court under s. 366, sub-s. (1) of the Code. Under s. 367,
sub-s. (1) if the High Court thinks a further inquiry should be made into, or
additional evidence taken upon, any point bearing upon the guilt or innocence
of the convicted person, it may make such inquiry or take such evidence itself,
or direct it to be made or taken by the Court of Sessions. In a case submitted
under s. 366, the High Court under s. 368(a) may either confirm the sentence,
or pass any other sentence, i.e. reduce the sentence of death into a sentence
of imprisonment for life.
Thereafter, an appeal lies to this Court by a
special leave under Article 136 on the question of sentence.
Failing the appeal, there is the President's
power to grant reprieve and pardon under Article 72(1), as well as the
Governor's power of 160 commutations under Article 161 of the Constitution
which is a sovereign function. The power of the President and of the Governor
to grant reprieves and pardons is wide enough to include the power to commute
and to remit sentence of punishment. All cases of capital punishment are
closely scrutinised by the Executive at both the levels to see whether there
are such extenuating circumstances as would justify a reprieve, and the power
to commute a death sentence is freely exercised, whenever there is some doubt as
to the severity of the punishment. Under the present system the prerogative of
Mercy in the case of persons under sentence of death works well and it produces
results generally regarded as satisfactory. It helps in mitigating the rigour
of the death sentence, particularly in case of those murderers whose execution
would offend the public conscience. Very few persons under a sentence of
death-may be one or two in a year, in a State are usually executed.
Such cases are usually of the kind indicated
by me above, and even some of them escape the sentence of death.
It is, therefore, not proper for the Court to
trench upon the President's or the Governor's prerogative to grant pardon or
reprieve under Articles 72(1) and 161, in taking upon itself the task of commutation
of a death sentence, which is properly imposed, in the facts and circumstances
of a particular case, merely because there is a doubt that the Executive may
commute the sentence ultimately, or by one's views as to the utility of a death
penalty. Judges are entitled to hold their own views, but it is the bounden
duty of the Court to impose a proper punishment, depending upon the degree of
criminality and the desirability to impose such punishment as a measure of
social necessity, as a means of deterring other potential offenders. It is only
in very grave cases where it is a crime against the society and the brutality
of the crime shocks the judicial conscience that the Court has the power, as
well as the duty, to impose the death sentence. In view of these adequate
safeguards, it can hardly be asserted that the sentence of death provided for
an offence of murder punishable under s. 302 is 'de- humanising' or that it is
'unnecessary'.
With respect, my learned brother Krishna Iyer
J., despite his sense of humanism, does not appear to be wholly an
'abolitionist'. That is the impression I get from his various judgments on the
subject. In Ediga Anamma and Bishan Dass he clearly accepts that where the
crime is cruel and inhuman, a death sentence may be called for. In the present
judgment also, he observes:
161 "If the murderous operation of a
die-hard criminal jeopardises social security in a persistent, planned and
perilous fashion then his enjoyment of fundamental rights may be rightly
annihilated.
If society does not survive, individual
existence comes to enough. So, one test for impost of death sentence is to find
out whether the murderer others such a traumatic threat to the survival of
social order. To illustrate, if an economic offender who intentionally mixes
poison in drugs professionally or wilfully adulterates intoxicating substances
injuriously, and knowingly or intentionally causes death for the sake of
private profit such trader in lethal business is a menace to social security
and is, therefore, a violator of social justice whose extinction becomes
necessary for society's survival.
Supposing a murderous band of armed dacoits
intentionally derails a train and large number of people die in consequence, if
the ingredients of murder are present and the object is to commit robbery
inside the train, they practise social injustice and imperil social security to
a degree that death penalty becomes a necessity if the crime is proved beyond
doubt. There may be marginal exceptions or special extenuations but none where
this kind of dacoity or robbery coupled with murder becomes a contagion and
occupation, and social security is so gravely imperilled that the fundamental
rights of the defendant become a deadly instrument whereby many are wiped out
and terror strikes community life. Then he `reasonably' forfeits his
fundamental rights and takes leave of life under the law. The style of violence
and systematic corruption and deliberately planned economic offences by
corporate top echelons are often a terrible technology of knowingly causing
death on a macro scale to make a flood of profit. The definition of murder will
often apply to them. But because of corporate power such murderous depredations
are not charged. If prosecuted and convicted for murder, they may earn the
extreme penalty for taking the lives of innocents deliberately for astronomical
scales of gain.
Likewise, if a man is murderer, so hardened,
so bloodthirsty, that within the prison and without, he makes no bones 162
about killing others or carries on a prosperous business in cadavers, then he
becomes a candidate for death sentence." My learned brother Krishna Iyer
J. wants the death penalty to be inflicted in the case of three categories of
criminals, namely (1) for white-collar offences, (2) for anti-social offences,
and (3) for exterminating a person who is a menace to the society, that is, a
`hardened murderer'.
Edwin H. Stherland defines a white-collar
offence as `a crime in relation to business'. (1)The validity of white- collar
crime as a crime has been a subject of severe controversy in social studies.
Now `white-collar crime', as commonly understood, means a crime committed by a
person of respectability and of high social status in the course of his
occupational role. It takes in such forms as restraint of trade,
mis-representation in advertising, infringement of patents, unfair labour
practices, financial fraud, unethical or illegal rebating and violation of
trusts. It may also take the form of theft, sale and export of entiques like sculptures,
any work of art of historical value, illegal sale of narcotics and alcohol,
abortion, fraudulent accident report, income-tax frauds etc. An `anti-social
offence' may consist of sale of spurious drugs, adulteration of articles of
food meant for human consumption, auto thefts, `sharp' business practices which
do not conform to the national well-being. Some of these offences must
undoubtedly be ruthlessly dealt with. But unfortunately our penal laws do not
provide for a death sentence for either white collar crimes or anti-social
offences, although I wish they did, at least for certain anti-social offences.
There will be general measure of agreement
that some of the serious anti-social offences call for a death sentence viz.
acts of sabotage by a person who hijacks a plane and the like and large number
of persons die or are injured in consequence, or disrupts lines of
communications, or holds up a train and commits armed robbery with murder
inside the train. He is a menace to the society and deserves a death sentence,
as his existence does not conform to the national well-being. Like-wise, a
person who indulges in theft or illegal trade and export of art treasures such
as invaluable monuments, paintings and sculptures of historical importance and
of priceless antiques of what remains of our national heritage, or in
adulteration of articles of food meant for human consumption, or in
manufacturing and selling of spurious drugs, or engages in illegal sale in
narcotics or alcohol, which are injurious to the very life of the community,
also deserves a death sentence, as in many other countries, or at any rate a
sentence of imprisonment for life. The same applies to economic offences which
may disrupt the economic life of the community as a whole, like smuggling of
gold and other contraband 163 goods, which call for a very deterrent
punishment. This is necessary to protect the basic economic order of the
nation.
But these are all matters for the Parliament
to decide.
It may be stated that the State of West Bengal
has taken a step forward in that direction. The Prevention of Adulteration of
Food, Drugs and Cosmetics Act, 1973 (West Bengal Act 42 of 1973 makes the
offence of sale of spurious drugs, adulteration of articles of food meant for
human consumption etc., punishable with imprisonment for life.
As regards `hardened' murderers, I am afraid,
there are few to be found. Many murders unfortunately go undetected, and many a
brutal murderer has to be acquitted for want of legal evidence bringing his
guilt beyond all reasonable doubt. Nevertheless, when the guilt is proved, the
Court should leave aside all humanitarian considerations, if, the extreme
penalty is called for. A `professional' murderer must, as a matter of course,
be sentenced to death because he is a menace to the society. Whatever sympathy
the Court can have should be reserved for the victims of the crime rather than
for the perpetrators. In such cases, the law must take its course.
I do not intend to enter upon any
philosophical dialectics as to the `utility' of the death sentence or enter
into the controversy whether it is `unnecessary', `brutal' or `dehumanizing',
but I would, for my part, like to say, that I am of the opinion-with much
deference for the great authority of those who think otherwise-that the weight
of evidence and reason is in favour of the retention of the death penalty.
I am afraid, if the Courts were to be guided
by the classification made by the majority the death sentence for an offence of
murder punishable under s. 302, for all practical purposes would be virtually
non-existent.
I feel that it is not necessary for the
purposes of these appeals to refer to the Indian Penal Code (Amendment) Bill,
1976, which by s. 125 introduces a new s. 302 in the Indian Panel Code, 1860.
The re-drafted section seeks to bring about a change in the law. It abolishes
the liability to suffer the death sentence on conviction of murder and
substitutes the sentence of imprisonment for life by sub-s.
(1) except in cases of certain first degree
murders falling within sub-s. (2) thereof. The cases in which the death
sentence is to be retained are those where, in the view of the Government,
murder is most dangerous to the preservation of law and order, and where the
death sentence is likely to be a particularly effective deterrent, viz.,
pre-planned murders involving extreme brutality and murders involving
exceptional depravity. The Bill is not before the Court. It is, therefore, not
proper to deal with it.
164 It is, however, necessary to emphasise
that if there has to be a law reform at all, some regard must be had to the
plight of the victim or his or her family by making provision for payment of
compensation. While it is commonly accepted that those convicted of violations
of the criminal law must "pay their debt to society", little emphasis
is placed upon requiring offenders to "pay their debt" to their
victims. These again are matters for the Parliament to provide.
From a life time of experience, Sir John
Beaumont, speaking with unrivalled authority, told the Royal Commission on
Capital Punishment(1) that the alternative sentence under s. 302 of the Indian
Penal Code 1860 had "worked well" in India, and that he had never
himself felt that the responsibility of choosing between the sentence of death
and a lesser punishment was unfair or excessive, nor had he ever heard any
Judge in India express such a feeling.
He expressed the opinion that there was
"no class of offences in which the degree of moral culpability differs
more than in case of murder". It is wholly illogical to require a Judge to
pass the same sentence in every case. In his view, the proper solution lies in
giving to the Judge the same discretion that he had in regard to other
offences.
A large body of judicial opinion still shares
the same view.
If Parliament thought it right to give to the
Judge’s discretion as to the sentence, I do not think they would or ought to
shrink from the onerous responsibility. I feel it would not be appropriate for
this Court to curtail the ambit of their discretion by judicial process. We
cannot but be oblivious that a sentence of a wrong type, that is, to substitute
a sentence of imprisonment for life where the death sentence is called for,
causes grave miscarriage of justice. A sentence or pattern of sentences which
fails to take due account of the gravity of the offence can seriously undermine
respect for law.
Turning to the appeals before us, I cannot
say that the award of death sentence in any of these cases was not appropriate
or uncalled for. In the three cases before us, there were "special
reasons" within the meaning of s. 354, sub-s. (3) of the Code of Criminal
Procedure, 1973 for the passing of the death sentence in each and therefore,
the High Courts were justified in confirming the death sentences passed, under
368(a) of the Code. In the circumstances, any interference with the sentence of
death, in my view, would be wholly unwarranted in each of these cases.
165 In Rajendra Prasad's case, the Allabhabad
High Court in confirming the death sentence observes that the accused Rajendra
is a `desperate character', who after having been convicted under s. 302 and
undergone a sentence of imprisonment for life was released only a few days
prior to the occurrence, on October 2, 1972, that is, on the occasion of Gandhi
Jayanti, committed the brutal murder of the deceased Mansukh by striking him
with a knife.
On the date of occurrence, that is, on
October 25, 1972, at about 11 a.m. the accused along with his brother Pooran
rushed towards Sri Kishan, brother of Rambharosay, armed with a knife but Sri
Kishan ran to safety and was not hurt. Later in the evening at about 5.30 p.m.,
the same day, while Rambharosay and the deceased Mansukh were standing in the
lane in front of Rambharosay's house, the accused suddenly appeared and dealt
several blows with the knife on vital parts of the body of Rambharosay but
Rambharosay released himself from his grip and ran inside his house and bolted
the door. The accused chased him all the way with the blood-stained knife and
knocked at the door asking him to open it. Meanwhile, the deceased Mansukh came
and tried to entreat the accused not to assault Rambharosay. Thereupon the
accused struck deceased Mansukh, who tried to escape, but the accused chased
him over a distance of 200 to 250 feet and inflicted repeated knife blows on
the deceased resulting in his death. The deceased was done to death by the
accused merely because he tried to prevent him from assaulting Rambharosay.
Not only there are no mitigating
circumstances but this was a pre-planned, cold-blooded murder. While Rajendra
was in jail, his family members used to wield out a threat that the members of
the family of Rambharosay would be dealt with after Rajendra is released from
jail.
The case of this accused is destructive of
the theory of reformation. The `therapeutic touch' which it is said is the best
way of preventing repetition of the offence has been of no avail. Punishment
must be designed so as to deter, as far as possible, from commission of similar
offences. It should also serve as a warning to other members of society. In
both respects, the experiment of reformation has miserably failed. I am quite
sure that with the commutation of his death sentence, the accused will commit a
few more murders and he would again become a menace to the community.
In Kunjukunju Janardhanan's case, the Kerala
High Court while confirming the death sentence of the accused observes that he
acted, with extreme depravity. Infatuated by the charm of a village girl, Smt.
166 Santhamma, then aged about 21 years, the
accused Kunjukunju Janardhanan, aged 28 years, committed the brutal murder of
his innocent wife, Smt. Chandramathi, aged 26 years and his two minor sons,
Sunil aged 7 and Manoj aged 5 at the dead of night while they were sleep by
repeatedly striking them with a sharp-edged deadly weapon. It redounds to the
credit of Smt. Santhamma, P.W. 2, the village girl, with whom the accused was
on terms of illicit intimacy, that she used to entreat him in her letters not
to court her as it would destroy the happiness of his family. It was then that
the accused wrote the letter, Ext. P-2, that he would exterminate his wife and
children once for all so that he may live happily with her.
I fail to understand what is meant by the
`eternal triangle' as a mitigating circumstance. The accused, who acted as a
monster, did not even spare his two innocent minor children in order to get rid
of his wife and issues through her. If the death sentence was not to be awarded
in a case like this I do not see the type of offence which calls for a death
sentence.
In Sheo Shankar Dubey's case, the Allahabad
High Court has found the accused Sheo Shankar guilty of triple murder and
rightly confirmed the sentence of death passed on him.
The accused Sheo Shankar murdered his uncle
Narottam Dubey, and his two sons Chandra Bhushan and Chandra Shekher.
On the date of occurrence, i.e., on June 15,
1976 after there was a partition of the joint family lands between the deceased
Narottam and Purushottam, father of the accused Sheo Shankar, there was a
dispute regarding division of three bataulis. The three bataulis could not be
equally divided because they were of different sizes. The accused insisted that
they should be broken and then partitioned.
Smt. Vidyawati widow of Narottam, in fact, in
trying to pacify her brother-in-law Purushottam, brought out one batauli and
the remaining two were taken out by Chandra Shekhar. It all happened over the
act of Chandra Shekher in flinging the two bataulis on the ground which
collided making a sound showing his resentment. The expression of resentment
implicit in the gesture of Chandra Shekhar infuriated the accused Sheo Shankar
to such an extent that he committed the three murders in a row. These were
nothing but first-degree murders.
The weapon used by the accused in committing
the crime, the manner in which the operation was carried out, and the
determination with which the accused acted, as well as the number of injuries
inflicted on the unfortunate victims, give a clear picture of the cruelty and
brutality 167 with which the accused murdered his uncle and his two sons.
He first inflicted a knife blow on his uncle
Narottam Dubey who tried to run away and as he turned, the accused dealt him
another knife blow resulting in his death on the spot.
Narottam Dubey, it appears, attempted his
best to escape.
Even after he had sustained bleeding injuries
at the hands of the accused, he made an effort to run away but he was chased by
the accused and the accused finished the victim with grim determination. His
cousin Chandra Bhushan tried to intercept with a view to protect the life of
his aged father but he was even not spared by the accused who struck a fatal
blow on the chest. The second cousin, Chandra Shekher, who moved forward to
save his brother was chased by the accused who also finished him of by a stroke
of the blade of knife he wielded.
It was no doubt a trifling incident over the
division of three betaulis resulting in the triple murder. It is said that the
murders were not `pre-meditated' but committed in the heat of passion over a
`family feud'. But that hardly furnishes a justification for the extreme
brutality with which the accused acted.
There is no inexorable rule that either the
extreme youth of the accused or the fact that he acted in a heat of passion
must always irrespective of the enormity of the offence or otherwise be treated
as a sufficient ground for awarding the lesser punishment. The Court has to
take into consideration all the circumstances which do not merit the extreme
penalty. I find that in the facts and circumstances of this particular case,
these factors cannot outweigh other considerations. Three precious lives have
been lost by the dastardly act of the accused. A family has been wiped off.
The death sentence was clearly called for in
this case- firstly, as a threat or warning to deter potential murderers, and
secondly, as the guarantee against the brutalisation of human nature. The grim
determination of the accused to bring the entire operation to the end desired
by him is also reflected in the manner of his repelling the interception of
Chandra Bhushan who went to the rescue of his father and Chandra Shekher who
tried to rescue his brother Chandra Bhushan, the unfortunate victims of the
murderous assault. All these facts and circumstances, to my mind, constitute
`special reasons' why the accused should be sentenced to death.
In retrospect, I venture to say that in these
appeals, it cannot be asserted that the award of death sentence to the
appellants was `erroneous in principle'. Nor can it be said that the sentence
of death passed on them was arbitrary or excessive or indicative of an improper
exercise of discretion. It is the duty of the Court to impose a proper
punishment, 168 depending upon the degree of criminality and desirability to
impose such punishment as a measure of social necessity, as a means of deterring
other potential offenders. Failure to impose a death sentence in such grave
cases where it is a crime against the society-particularly in cases of murders
committed with extreme brutality, will bring to nought the sentence of death
provided by s. 302 of the Indian Penal Code, 1860. To allow the appellants to
escape with the lesser punishment after they had committed such intentional,
cold-blooded, deliberate and brutal murders will deprive the law of its
effectiveness and result in travesty of justice.
I would, therefore, for these reasons dismiss
the appeals. The appellants are at liberty to apply for reprieve for commutation
of their sentence which is an executive act of clemency.
ORDER In the light of the opinion of the
majority the death sentence in each of these appeals is commuted to a sentence
of imprisonment for life.
P.B.R.
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