Bachan Singh Vs. State of Punjab
[1982] INSC 62 (16 August 1982)
BHAGWATI, P.N.
BHAGWATI, P.N.
CHANDRACHUD, Y.V. ((CJ) SARKARIA, RANJIT
SINGH GUPTA, A.C.
UNTWALIA, N.L.
CITATION: 1982 AIR 1325 1983 SCR (1) 145 1982
SCC (3) 24 1982 SCALE (1)713
CITATOR INFO :
E 1983 SC1155 (3,4,5,6,8,9,12,13,23,27,28,29
RF 1989 SC 653 (17) E&D 1989 SC1335 (10) R 1989 SC2299 (2,3) RF 1991 SC 345
(6,11)
ACT:
(A) Death Penalty, whether constitutionally
valid ?- Right to live, whether the provisions of section 302, Penal Code,
offends Article 19 of the Constitution-Distinction between "Public
order" and "Law and Order"-Whether section 302, Penal Code,
violates Article 21, the basic structure of the Constitution and Article 6(1)
of the International Covenant on Civil and Political Rights as adopted by the
General Assembly of the United Nations and reiterated in the Stockholm
Declaration.
(B) Code of Criminal Procedure, 1973, section
354(3)-If section 302, Penal Code, is constitutional, whether the sentencing
procedure provided in section 354(3) of the Code of Criminal Procedure, 1973
(Act II of 1974) is unconstitutional on the ground that it invests with
unguided and untrammelled discretion and allows death sentence to be
arbitrarily or freakishly imposed on a person found guilty of murder or any
other capital offence punishable under the Indian Penal Code with death or, in
the alternative with imprisonment for life.
(C) Powers of the Supreme Court to lay down
standards or norms restricting the area of imposition of death penalty to a
narrow category of murders.
HEADNOTE:
Upholding the constitutionality of section
302, Penal Code, and section 354 (3) of the Code of Criminal Procedure Code. The
Court.
^ HELD: Per majority.
Sarkaria, J. [On behalf of Chandrachud, C.J.,
A.C. Gupta, N.L. Untwalia, JJ. and on his own behalf].
The right to life is not one of the rights
mentioned in Article 19 (1) of the Constitution and the six fundamental
freedoms guaranteed under Article 19(1) are not absolute rights. The condition
precedent for the applicability of Article 19 is that the activity which the
impugned law prohibits and penalises, must be within the purview of and
protection of Article 19 (1). [173 E, 174 A, B-C] 146 State of Bombay v. R.M.D.
Chamarbaugwala, [1957] SCR 874 @ 920; Fatechand Himmatlal and Ors. v. State of
Maharashtra, [1977] 2 SCR 828 @ 840; A.K. Gopalan v. The State of Madras,
[1950] 1 SCR 88, followed.
2. The Indian Penal Code, particularly those
of its provisions which cannot be justified on the ground of unreasonableness
with reference to any of the specified heads, such as "public order"
in clauses (2), (3) and (4) is not a law imposing restrictions on any of the
rights conferred by Article 19 (1). There are several offences under the Penal
Code, such as, theft, cheating, ordinary assault, which do not violate or
affect "public order", but only "law and order". These
offences injure only specific individuals as distinguished from the public at
large. It is now settled that "public order" means "even tempo
of the life of the community". That being so, even all murders do not
disturb or affect "public order". Some murders may be of purely
private significance and the injury or harm resulting therefrom affects only
specific individuals, and, consequently, such murders may not be covered by
"public order" within the contemplation of clauses (2), (3) and (4)
of Article 19. Such murders do not lead to public disorder but to disorder
simpliciter. Yet, no rational being can say that punishment of such murderers
is not in the general public interest. It may be noted that general public
interest is not specified as a head in clauses (2) to (4) on which restriction
on the rights mentioned in clause (i) of the Article may be justified.
[181 D-H, 182 A-B] The real distinction
between the areas of "law and order" and "public order"
lies not merely in the nature or quality of the act, but in the degree and
extent. Violent crimes similar in nature, but committed in different contexts
and circumstances might cause different reactions.
A murder committed in given circumstances may
cause only a slight tremor, the wave length of which does not extend beyond the
parameters of law and order. Another murder committed in different context and
circumstances may unleash a tidal wave of such intensity, gravity and
magnitude, that its impact throws out of gear the even flow of life.
Nonetheless, the fact remains that for such
murders which do not affect "public order", even the provision for
life imprisonment in section 302, Indian Penal Code, as an alternative
punishment, would not be justifiable under clauses (2), (3) and (4) as a
reasonable restriction in the interest of "public order". Such a
construction must, therefore, be avoided. Thus construed, Article 19 will be
attracted only to such laws, the provisions of which are capable of being
tested under clauses (2) to (5) of Article
19. [182 B-E] R.S. Cooper v. Union of India,
[1970] 3 SCR 530; Maneka Gandhi v. Union of India, [1978] 2 SCR 621; Dr. Ram
Manohar Lohia's case, [1966]1 SCR 709; Hardhan Saha and Anr. v.
State of West Bengal, [1975] 1 SCR 778@ 784,
followed.
3. From the decided cases of the Supreme
Court, it is clear that the test of direct and indirect effect was not
scrapped. Indeed there is no dispute that the test of "pith and
substance" of the subject-matter and of direct and of incidental effect of
legislation is a very useful test to determine the question of legislative
competence, i.e., in ascertaining whether an Act falls under one Entry 147
while incidentally encroaching upon another Entry. Even for determining the
validity of a legislation on the ground of infringement of fundamental rights,
the subject matter and the object of the legislation are not altogether
irrelevant.
For instance, if the subject matter of the
legislation directly covers any of the fundamental freedoms mentioned in
Article 19 (1). It must pass the test of reasonable ness under the relevant
head in clauses (2) to (6) of that Article. If the legislation does not
directly deal with any of the rights in Article 19 (1), that may not conclude
the enquiry. It will have to be ascertained further whether by its direct and
immediate operation, the impugned legislation abridges any of the rights
enumerated in Article 19 (1).
[189 B-D] The mere fact that the impugned law
incidentally, remotely or collaterally has the effect of abridging or
abrogating those rights, will not satisfy the test. If the answer to the above
queries be in the affirmative, the impugned law in order to be valid must pass
the test of reasonableness under Article 19. But if the impact of the law on
any of the rights under clause (1) of Article 19 is merely incidental,
indirect, remote or collateral and is dependent upon factors which may or may
not come into play, the anvil of Article 19 will not be available for judging
its validity. [190 A-C] R.C. Cooper v. Union of India, [1970] 3 SCR 530; Maneka
Gandhi v. Union of India, [1978] 2 SCR 621; Subrahmanyam Chattiar's case,
[1940] FCR 188; Ram Singh v. State of Delhi, [1951] SCR 451; Express Newspapers
(P) Ltd. and Anr v. The Union of India & Ors., [1959] SCR 12; Minnesota Ex.
Rel. Olson, [1930] 283 U.S. 697 @ 698; Sakal
Papers (P) Ltd. and Ors. v. The Union of India, [1962] 3 SCR 842; Naresh
Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr., [1966] 3 SCR 744;
Bennett Coleman's case, AIR 1973 SC 106, referred to.
4. Section 299 defines "culpable
homicide" and section 300 defines culpable homicide amounting to murder.
Section 302 prescribes death or imprisonment for life as penalty for murder. It
cannot, reasonably or rationally, be contended that any of the rights mentioned
in Article 19 (1) of the Constitution confers the freedom to commit murder or,
for the matter of that, the freedom to commit any offence whatsoever. Therefore,
penal laws, that is to say laws which define offences and prescribe punishment
for the commission of offences do not attract the application of Article 19
(1). It cannot be said that the object of the penal laws is generally such as
not to involve any violation of the rights conferred by Article 19 (1) because
after the decision of this Court in the Bank Nationalisation case the theory,
that the object and form of the State action alone determine the extent of
protection that may be claimed by an individual and that the effect of the
State action on the fundamental right of the individual is irrelevant, stands
discredited.
But the point of the matter is that, in pith
and substance, penal laws do not deal with the subject-matter of rights
enshrined in Article 19 (1). That again is not enough for the purpose of
deciding upon the applicability of Article 19, because even if a law does not,
in its pith and substance, deal with any of the fundamental rights conferred by
Article 19 (1), if the direct and inevitable effect of the law is such as to
abridge or abrogate any of those rights, Article 19 (1) shall have to be
attracted. It would then become necessary to test the 148 validity of even a
penal law on the touchstone of that Article. On this latter aspect of the
matter, it is clear that the deprivation of freedom consequent upon an order of
conviction and sentence is not a direct and inevitable consequence of the penal
law but is merely incidental to the order of conviction and sentence which may
or may not come into play, that is to say, which may or may not be passed.
Section 302 of the Penal Code, therefore,
does not have to stand the test of Article 19 (1) of the Constitution. [190
C-H, 191 A-B] The onus of satisfying the requirements of Article 19, assuming
that the Article applies. lies on the person challenging its validity. There is
initial presumption in favour of the constitutionality of the state and the
burden of rebutting that presumption is thrown on the party who challenges the
constitutionality on the ground of Article
19. Behind the view that there is a
presumption of constitutionality of a statute and the onus to rebut the same
lies on those who challenge the legislation, is the rationale of judicial
restraint, a recognition of the limits of judicial review, a respect for the
boundaries of legislative and judicial functions, and the judicial
responsibility to guard the trespass from one side or the other. The primary
function of the courts is to interpret and apply the laws according to the will
of those who made them and not to transgress into the legislative domain of
policy-making. Even where the burden is on the State to show that the
restriction imposed by the impugned statute is reasonable and in public
interest, the extent and the manner of discharge of the burden necessarily
depends on the subject-matter of the legislation, the nature of the inquiry,
and the scope and limits of judicial review.
[192 C-D, 193 A, C-D, 194 D-E] Saghir Ahmad
v. State of Uttar Pradesh, [1955] 1 SCR 707; Khyerbari Tea Co. v. State of
Assam & Ors., A.I.R. 1964 SC 925; B. Banerjee v. Anita Pan, [1975] 2 SCR
774 @ 787;
Pathumma v. State of Kerala, [1978] 2 SCR
537; Dennis v. United States, 341 US 494, 525: 95 L.Ed. 1137: 71 S. Ct. 857;
Gregg v. Georgia, 428 US 153: 49 L.Ed. 2nd 859; State of Madras v. V.G. Rao,
[1952] SCR 597 @ 607; Jagmohan Singh v. State of U.P., [1973] 2 SCR 541,
referred to.
5. Statistical attempts to assess the true
penological value of capital punishment remain inconclusive. Firstly, statistics
of deterred potential murderers are hard to obtain. Secondly, the approach
adopted by the Abolitionists is over simplified at the cost of other relevant
but imponderable factors, the appreciation of which is essential to assess the
true penological value of capital punishment.
The number of such factors is infinitude,
their character variable, duration transient and abstract formulation
difficult. Conditions change from country to country and time to time. Due to
the inconsistancy of social conditions, it is not scientifically possible to
assess with any degree of accuracy, as to whether the variation in the
incidence of capital crime is attributable to the presence or absence of death
penalty in the penal law of that country for such crimes.
[215 E-H, 216 A] 149
6. To sum up, the question whether or not
death penalty serves any penological purpose is a difficult, complex and
intractable issue. It has evoked strong, divergent views.
For the purpose of testing the
constitutionality of the impugned provision as to death penalty in section 302,
Penal Code, on the ground of reasonableness in the light of Articles 19 and 21
of the Constitution, it is not necessary to express any categorical opinion,
one way or the other, as to which of these two antithetical views, held by the
Abolitionists and Retentionists, is correct. It is sufficient to say that the
very fact that persons of reason, learning and light are rationally and deeply
divided in their opinion on this issue is a ground among others, for rejecting
the petitioners' argument that retention of death penalty in the impugned
provision, is totally devoid of reason and purpose. If, notwithstanding the
view of the Abolitionists to the contrary, a very large segment of people the
world over, including sociologists, legislators, jurists, judes and
administrators still firmly believe in the worth and necessity of capital
punishment for the protection of society, if in the perspective of prevailing
crime conditions in India, contemporary public opinion chanalised through the
people's representatives in Parliament, has repeatedly in the last three
decades, rejected all attempts, including the one made recently, to abolish or
specifically restrict the area of death penalty, if death penalty is still a
recognised legal sanction for murder or some types of murder in most of the
civilised countries in the world, if the framers of the Indian Constitution
were fully aware of the existence of death penalty as punishment for murder,
under the Indian Penal Code, if the 35th Report and subsequent Reports of the
Law Commission suggesting retention of death penalty, and recommending revision
of the Criminal Procedure Code and the insertion of the new sections 235 (2)
and 354 (3) in that Code providing for pre-sentence hearing and sentencing
procedure on conviction for murder another capital offences were before the
Parliament and presumably considered by it when in 1972-73 it took up revision
of the Code of 1898, and replaced it by the Code of Criminal Procedure, 1973, it
cannot be said that the provision of death penalty as an alternative punishment
for murder, in section 302, Penal Code, is unreasonable and not in public
interest. Therefore, the impugned provision in section 302, violates neither
the letter nor the ethos of Article 19. [221 B-H, 222 A]
7. (i) Neither the new interpretative
dimensions given to Articles 19 and 21 by the Supreme Court in Maneka Gandhi,
[1978] 2 SCR 621, and Charles Sobraj v. The Superintendent, Central Jail,
Tihar, New Delhi, [1979] 1 SCR 512, nor the acceptance by India of the
International Covenant on Civil and Political Rights, makes any change in the
prevailing standards of decency and human dignity. The International Covenant
does not outlaw capital punishment for murder altogether. [225 C-E] (ii) In
accordance with the interpretative principle indicated by the Supreme Court in
Maneka's case, Article 21 will read as "No person shall be deprived of his
life or personal liberty except according to fair, just and reasonable
procedure established by valid law" or in its converse positive form as
"A person may be deprived of his life or personal liberty in accordance
with fair, just and reasonable procedure established by valid law."
Article 21, thus, clearly 150 brings out the implication, that the Founding
Fathers recognised the right of the State to deprive a person of his life or
personal liberty in accordance with fair, just and reasonable procedure
established by valid law. In view of the constitutional provisions-Entries 1
and 2 in List III Concurrent List of Seventh Schedule Articles 72 (1) (c), 161
and 134-it cannot be said that death penalty under section 302, Penal Code, per
se or because of its execution by hanging, constitutes an unreasonable, cruel
or unusual punishment. By reason of the same constitutional postulates, it
cannot be said that the framers of the Constitution considered death sentence
for murder or the prescribed traditional mode of its execution as a degrading
punishment which would defile "the dignity of the individual" within
the contemplation of the Preamble to the Constitution. On parity of reasoning,
it cannot be said that death penalty for the offence of murder violates the
basic structure of the Constitution. [222 E-H, 223 A-B, F-H] (iii) Clauses (1)
and (2) of Article 6 of the International Covenant on Civil and Political
Rights do not abolish or prohibit the imposition of death penalty in all
circumstances. All that they require is that, firstly, death penalty shall not
be arbitrarily inflicted; secondly, it shall be imposed only for most serious
crimes in accordance with a law which shall not be an ex post facto
legislation.
Thus, the requirements of these clauses are
substantially the same as the guarantees or prohibitions contained in Articles
20 and 21 of our Constitution. India's commitment, therefore, does not go
beyond what is provided in the Constitution and the Indian Penal Code and the
Criminal Procedure Code. The Penal Code prescribes death penalty as an
alternative punishment only for heinous crimes which are not more than seven in
number. Section 354 (3) of the Criminal Procedure Code, 1973 in keeping with
the spirit of the International Covenant, has further restricted the area of
death penalty. India's penal laws, including the impugned provisions and their
application, are thus entirely in accord with its international commitment.
[224 G-H, 225 A-C]
8. The procedure provided in Criminal
Procedure Code for imposing capital punishment for murder and some other
capital crimes under the Penal Code cannot, by any reckoning, be said to be
unfair, unreasonable or unjust. Nor can it be said that this sentencing
discretion, with which the Courts are invested, amounts to delegation of its
power of legislation by Parliament. The impugned provisions do not violate
Articles 14, 19 and 21 of the Constitution.
[238 B, G-H, 239 A-B] Section 235 (2) of the
Code of Criminal Procedure makes not only explicit what according to the
decision in Jagmohan's case was implicit in the scheme of the Code, but also
bifurcates the trial by providing two hearings, one at the preconviction stage
and another at the pre-sentence stage. And, section 354 (3) of the Code marks a
significant shift in the legislative policy underlying the Code, 1898, as in
force immediately before April 1, 1974, according to which both the alternative
sentences of death or imprisonment for life provided for murder and for certain
other capital offences under the Penal Code, were normal sentences. Now,
according to this changed legislative policy which is patent on the face of
section 354 (3), the normal punishment for murder and six other capital
offences under the Penal Code is imprisonment for life (or imprisonment for a
term of years) and death penalty is an exception. [229 F- G, A-B] 151 Although
sub-section (2) of section 235 of the Code does not contain a specific
provision as to evidence and provides only for hearing of the accused as to
sentence, yet it is implicit in this provision that if a request is made in
that behalf by either the prosecution or the accused, or by both, the Judge
should give the party or parties concerned an opportunity of producing evidence
or material relating to the various factors bearing on the question of
sentence. [230 E-F] Jagmohan Singh v. State of U.P., [1973] 2 SCR 541,
reiterated.
Santa Singh v. State of Punjab, AIR 1973 SC
2385, referred to.
9. The expression "special reasons"
in the context of section 354 (3) obviously means "exceptional
reasons" founded on the exceptionally grave circumstances of the
particular case relating to crime as well as criminal. Thus, the legislative
policy now writ large and clear on the face of section 354 (3) is that on
conviction of murder and other capital offences punishable in the alternative
with death under the Penal Code, the extreme penalty should be imposed only in
extreme cases. [236 C-D] Balwant Singh v. State of Punjab, [1976] 2 SCR 684,
referred to.
10. Section 235 (2) of the Code provides for
a bifurcated trial and specifically gives the accused person a right of
pre-sentence hearing, at which stage, he can bring on record material or
evidence, which may not be strictly relevant to or connected with the
particular crime under inquiry, but nevertheless have, consistently with the
policy underlined in section 354 (3), a bearing on the choice of sentence. The
present legislative policy discernible from section 235(2) read with section
354(3) is that in fixing the degree of punishment or making the choice of
sentence for various offences, including one under section 302, Penal Code, the
Court should not confine its consideration "principally" or
"merely" to the circumstances connected with the particular crime,
but also give due consideration to the circumstances of the criminal. [237 C-E]
11. The Supreme Court should not venture to
formulate rigid standards in an area in which the Legislature so warily treads.
Only broad guidelines consistent with the policy indicated by the Legislature
can be laid down. But this much can be said that in order to qualify for
inclusion in the category of "aggravating circumstances" which may
form the basis of "special reasons" in section 354(3), circumstances
found on the facts of a particular case, must evidence aggravation of an
abnormal or special degree. [243 E-F, 254 B-C] Gurbakash Singh Sibbia and Ors.
v. State of Punjab, [1980] 3 SCR p. 383, applied.
Hyman and Anr. v. Rose, [1912] AC 623,
referred to.
12. Sections 354 (3) and 235 (2) and other
related provisions of the Code of 1973 make it clear that for making the choice
of punishment or for ascertaining 152 the existence or absence of "special
reasons" in that context, the Court must pay due regard both to the crime
and the criminal. What is the relative weight to be given to the aggravating
and mitigating factors, depends on the facts and circumstances of the
particular case. More often than not, these two aspects are so intertwined that
it is difficult to give a separate treatment to each of them. This is so
because "style is the man." In many cases, the extremely cruel or beastly
manner of the commission of murder is itself a demonstrated index of the
depraved character of the perpetrator. That is why, it is not desirable to
consider the circumstances of the crime and the circumstances of the criminal
in two separate water-tight compartments. In a sense, to kill is to be cruel
and therefore all murders are cruel. But such cruelty may vary in its degree of
culpability. And it is only when the culpability assumes the proportion of
extreme depravity that "special reasons" can legitimately be said to
exist.
[251 G-H, 252 A-C] Rajendra Prasad v. State
of U.P. [1979] 3 SCR p. 78, Bishnu Deo Shaw v. State of West Bengal, [1979] 3
SCR p.
355, overruled.
13. There are numerous other circumstances
justifying the passing of the lighter sentence, as there are countervailing
circumstances of aggravation. "We cannot obviously feed into a judicial
computer all such situations since they are astrological imponderables in an
imperfect and undulating society." Nonetheless, it cannot be over emphasised
that the scope and concept of mitigating factors in the area of death penalty
must receive a liberal and expansive construction by the courts in accord with
the sentencing policy writ large in section 354 (3). Judges should never be
blood-thirsty. Hanging of murderers has never been too good for them. Facts and
figures, albeit incomplete, furnished by the Union of India, show that in the
past, Courts have inflicted the extreme penalty with extreme infrequency-a fact
which attests to the caution and compassion which they have always brought to
bear on the exercise of their sentencing discretion in so grave a matter. It
is, therefore, imperative to voice the concern that Courts, aided by the broad
illustrative guidelines indicated by the Supreme Court, will discharge the
onerous function with evermore scrupulous care and humane concern, directed
along the highroad of legislative policy outlined in section 354 (3), viz.,
that for persons convicted of murder life imprisonment is the rule and death
sentence an exception. A real and abiding concern for the dignity of human life
postulates resistance to taking a life through law's instrumentality. That
ought Lot to be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed. [255 E-H, 256 A-C] Per Bhagwati J.
(Dissenting) 1:1. Ordinarily, on the principle of stare decisis, Judges would
hold themselves bound by the view taken in an earlier case and resist any
attempt at reconsideration of the same issue. But, for several weighty and given
considerations, the Court can depart from this precedential rule in any
particular case.
[258 A-B] 1:2. The rule of adherence to
precedence is not a rigid and inflexible rule of law, but it is a rule of
practice adopted by the Courts for the purpose of ensuring uniformity and
stability in the law. Otherwise there will be no certainty and predictability
in the law, leading to chaos and confusion and in the process 153 destroying
the rule of law, and increasing the labour of judges. But this rule of adherence
to precedents; though a necessary tool "in the legal smithy," is only
a useful servant and cannot be allowed to turn into a tyrannous master. If the
rule of stare decisis were followed blindly and mechanically, it would dwarf
and stultify the growth of the law and affect its capacity to adjust itself to
the changing needs of the society. [258 B-C, D,E,F] 1:3 There are certain
issues which transcend technical considerations of stare decisis and if such an
issue is brought before the Court, it would be nothing short of abdication of
its constitutional duty for the Court to refuse to consider such issue by
taking refuge under the doctrine of stare decisis. The Court may refuse to
entertain such an issue like the constitutional validity of death penalty
because it is satisfied that the previous decision is correct but it cannot
decline to consider it on the ground that it is barred by the rule of adherence
to precedents. [259 E-G] In the present case, there are two other supervening
circumstances which justify, may compel, re-consideration of the decision in
Jagmohan's case. The first is the introduction of the new Code of Criminal
Procedure in 1973, which by section 354, sub-section (3) has made life sentence
the rule, in case of offences punishable with death or in the alternative
imprisonment for life and provided for imposition of sentence of death only in
exceptional cases for special reasons. The second and the still more important
circumstance which has supervened since the decision in Jagmohan's case is the
new dimension of Articles 14 and 21 unfolded by the Supreme Court in Maneka
Gandhi v. Union of India (1978) 2 SCR 663. This new dimension of Articles 14
and 21 renders the death penalty provided in section 302 of the Indian Penal
Code read with section 354(3) of the Code of Criminal Procedure vulnerable to
attack on a ground not available at the time when Jagmohan's case was decided.
Furthermore, since Jagmohan's case was
decided, India has ratified two international instruments on Human Rights and
particularly the International Covenant on civil and political rights.
[259 G-H, 260 A-D] Jagmohan v. State of U.P.
A.I.R. 1973 SC 947, dissented from.
State of Washington v. Dawson and Company 264
U.S. 646;
68 L. Edn. 219 dissenting judgment quoted with
approval.
Maneka Gandhi v. Union of India, [1978] 2 SCR
663 applied.
2:1. The constitutional validity of the death
penalty provided as an alternative punishment in section 302 of the Indian
Penal Code read with section 354 sub-section (3) of the Code of Criminal
Procedure cannot be sustained. Death penalty does not serve any social purpose
or advance any constitutional value and is totally arbitrary and unreasonable
so as be violative of Articles 14, 19, and 21 of the Constitution, [256 F, 257
E] Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947. not followed.
154 2:2 The culture and ethos of the nation
as gathered from its history, its tradition and its literature would clearly be
relevant factors in adjudging the constitutionality of death penalty and so
would the ideals and values embodied in the Constitution which lays down the
basic frame-work of the social and political structure of the country, and
which sets out the objectives and goals to be pursued by the people in a common
endeavour to secure happiness and welfare of every member of the society. So
also standards or norms set by International organisations and bodies have
relevance in determining the constitutional validity of death penalty and
equally important in construing and applying the equivocal formulae of the
Constitution would be the "wealth of non-legal learning and experience
that encircles and illuminates" the topic of death penalty. [261 B-E] 2:3.
The objective of the United Nations has been and that is the standard set by
the world body that capital punishment should be abolished in all countries.
This normative standard set by the world body must be taken into account in
determining whether the death penalty can be regarded as arbitrary, excessive
and unreasonable so as to be constitutionally invalid. [268 B-C] 2:4. The
Constitution of India is a unique document. It is not a mere pedantic legal
text but it embodies certain human values, cherished principles, and spiritual
norms and recognises and upholds the dignity of man. It accepts the individual
as the focal point of all development and regards his material, moral and
spiritual development as the chief concern of its various provisions. It does
not treat the individual as a cog in the mighty all-powerful machine of the
State but places him at the centre of the constitutional scheme and focuses on
the fullest development of his personality. The several provisions enacted in
the constitutions for the purpose of ensuring the dignity of the individual and
providing for his material, moral and spiritual development would be
meaningless and ineffectual unless there is rule of law to invest them with
life and force.
[268 C-D, G-H] 2:5. The rule of law permeates
the entire fabric of the Constitution and indeed forms one of its basic
features. The rule of law excludes arbitrariness; its postulate is
'intelligence without passion' and 'reason freed from desire'. Wherever we find
arbitrariness or unreasonableness there is denial of the rule of law.
"Law" in the context of the rule of law, does not mean any law
enacted by the legislative authority, howsoever arbitrary or despotic it may
be. Otherwise even under a dictatorship it would be possible to say that there
is rule of law, because every law made by the dictator howsoever arbitrary and
unreasonable has to be obeyed and every action has to be taken in conformity
with such law. In such a case too even where the political set up is
dictatorial, it is law that governs the relationship between men and men and
between men and the State. But still it is not a rule of law as understood in
modern jurisprudence because in jurisprudential terms, the law itself in such a
case being an emanation from the absolute will of the dictator, it is in effect
and substance the rule of man and not of law which prevails in such a
situation. What is a necessary element of the rule of law is that the law must
not be arbitrary and irrational and it must satisfy the test of reason and the
democratic form of polity seeks to ensure this element by making the framers of
the law accountable to the people. [269 A-E] 155 2:6. The rule of law has much
greater vitality under our Constitution than it has in other countries like the
United Kingdom which has no constitutionally enacted Fundamental Rights. The
rule of law has really three basic and fundamental assumptions; one is that law
making must be essentially in the hands of a democratically elected
legislature, subject of course to any power in the executive in an emergent
situation to promulgate ordinance effective for a short duration while the
legislation is not in session as also to enact delegated legislation in
accordance with the guidelines laid down by the legislature; the other is that,
even in the hands of a democratically elected legislature, there should not be
unfettered legislative power; and lastly there must be an independent judiciary
to protect the citizen against excesses of executive and legislative power and
we have in our country all these three elements essential to the rule of law.
It is plain and indisputable that under our Constitution law cannot be
arbitrary or irrational and if it is, it would be clearly invalid, whether
under Article 14 or Article 19 or Article 21, whichever be applicable. [275
E-H. 276 A-B] Minerva Mill's case [1981] 1 SCR 206; Maneka Gandhi's case [1978]
2 SCR 621; Airport Authority of India's case [1979] 3 SCR 1014; A.K. Gopalan's
case [1950] 3 SCR 88; F.C.
Mullen's case [1981] 2 SCR 516 referred to.
2:7. The Constitution does not in so many
terms prohibit capital punishment. In fact, it recognises death sentence as one
of the penalties which may be imposed by law. Apart from Article 21, Clause (C)
of Article 72 also recognises the possibility of a sentence of death being
imposed on a person convicted of an offence inasmuch as it provides that the
President shall have the power to suspend, remit or commute the sentence of any
person who is convicted of an offence and sentenced to death. Therefore, the
imposition of death sentence for conviction of an offence is not in all cases
forbidden by the Constitution. But that does not mean that the infliction of
death penalty is blessed by the Constitution or that it has the imprimatur or
seal of approval of the Constitution. The Constitution is not a transient
document but it is meant to endure for a long time to come and during its life,
situations may arise where death penalty may be found to serve a social purpose
and its prescription may not be liable to be regarded as arbitrary or
unreasonable and therefore to meet such situations, the Constitution had to
make a provision and this it did in Article 21 and clause (c) of Article 72 so
that, even where death penalty is prescribed by any law and it is otherwise not
unconstitutional, it must still comply with the requirement of Article 21 and
it would be subject to the clemency power of the President under clause (c) of
Article 72. [276 D-H, 277 A-B] 2:8. From the legislative history of the
relevant provisions of the Indian Penal Code and the Code of Criminal
Procedure, it is clear that in our country there has been a gradual shift
against the imposition of death penalty. Life sentence is now the rule and it
is only in exceptional cases, for special reasons, that death sentence can be
imposed. The legislature has however not indicated what are the special reasons
for which departure can be made from the normal rule and death penalty may be
inflicted. The legislature has not given any guidance as to what are those
exceptional cases in which, deviating from the normal 156 rule, death sentence
may be imposed. This is left entirely to the unguided discretion of the court,
a feature, which has lethal consequences so far as the constitutionality of
death penalty is concerned. [277 C-D, 278 E-G] Rajendra Prasad v. State of U.P.
[1979] 3 S.C.R. 646, referred to.
2:9. The problem of constitutional validity
of death penalty cannot be appreciated in its proper perspective without an
adequate understanding of the true nature of death penalty and what it involves
in terms of human anguish and suffering. In the first place, death penalty is
irrevocable; it cannot be recalled. It extinguishes the flame of life forever
and is plainly destructive of the right to life, the most precious right of
all, a right without which enjoyment of no other rights is possible. If a
person is sentenced to imprisonment, even if it is for life, and subsequently
it is found that he was innocent and was wrongly convicted, he can be set free.
Of course, the imprisonment that he has suffered till then cannot be undone and
the time he has spent in the prison cannot be given back to him in specie but
he can come back and be restored to normal life with his honour vindicated, if
he is found innocent. But that is not possible where a person has been wrongly
convicted and sentenced to death and put out of existence in pursuance of the
sentence of death. In his case, even if any mistake is subsequently discovered,
it will be too late, in every way and for every purpose it will be too late,
for he cannot be brought back to life. The execution of the sentence of death
in such a case makes miscarriage of justice irrevocable. [281 F-H, 282 A-D]
2:10. Howsoever careful may be the procedural safeguards, erected by the law
before death penalty can be imposed, it is impossible to eliminate the chance
of judicial error. No possible judicial safeguards can prevent conviction of
the innocent. It is indeed a very live possibility and it is not at all
unlikely that so long as death penalty remains a constitutionaly valid
alternative, the Court or the State acting through the instrumentality of the
Court may have on its conscience the blood of an innocent man. [283 D-E. G-H]
2:11. Judicial error in imposition of death penalty would indeed be a crime
beyond punishment. This is the drastic nature of death penalty, terrifying in
its consequences, which has to be taken into account in determining its
constitutional validity. Death penalty is barbaric and inhuman in its effect,
mental and physical upon the condemned man and is positively cruel. Its psychological
effect on the prisoner in the Death Row is disastrous. [284 E-F] Furman v.
Georgia 408 US 238; In Re Kemmler 136 US 436;
In Re Medley 134 US 160; quoted with
approval.
2:12. Penological goals also do not justify
the imposition of death penalty for the offence of murder. The prevailing
standards of human decency are also incompatible with death penalty. The
standards of human decency with reference to which the proportionality of the
punishment to the offence is required to be judged vary from society to society
depending on the cultural and spiritual 157 tradition of the society, its
history and philosophy and its sense of moral and ethical values. [302 A-B]
Moreover, it is difficult to see how death penalty can be regarded as
proportionate to the offence of murder when legislatively it has been ordained
that life sentence shall be the rule and it is only in exceptional cases for
special reasons that death penalty may be imposed. It is obvious from the
provision enacted in section 354 (3) of the Code of Criminal Procedure that
death sentence is legislatively regarded as disproportionate and excessive in
most cases of murder and it is only in exceptional cases that it can at all be
contended that death sentence is proportionate to the offence of murder. But,
then the legislature does not indicate as to what are those exceptional cases
in which death sentence may be regarded as proportionate to the offence and,
therefore, reasonble and just. Death penalty cannot be regarded as
proportionate to the offence of murder, merely because the murder is brutal,
heinous or shocking. The nature and magnitude of the offence or the motive and
purposes underlying it or the manner and extent of its commission cannot have
any relevance to the proportionality of death penalty to the offence. [304 H,
305 A-D, 306 D-E] 2:13 The historical course through which death penalty has
passed in the last 150 years shows that the theory that death penalty acts as a
greater deterrent than life imprisonment is wholly unfounded. Even the various
studies carried out clearly establish beyond doubt that death penalty does not
have any special deterrent effect which life sentence does not possess and that
in any event there is no evidence at all to suggest that death penalty has any
such special deterrent effect. [316 A, 321 G-H] 2:14. Death penalty as provided
under section 302 of the Indian Penal Code read with section 354 sub-section
(3) of the Code of Criminal Procedure, 1973 does not sub-serve any legitimate
end of punishment, since by killing the murderer it totally rejects the
reformation purpose and it has no additional deterrent effect which life
sentence does not possess and it is therefore not justified by the deterrence
theory of punishment. Though retribution or denunciation is regarded by some as
a proper end of punishment, it cannot have any legitimate place in an
enlightened philosophy of punishment. Therefore, death penalty has no rational
penological purpose and it is arbitrary and irrational and hence violative of
Articles 14 and 21 of the Constitution.
[340 D-F] 2:15. On a plain reading of section
302 of the Indian Penal Code which provides death penalty as alternative
punishment of murder it is clear that it leaves it entirely to the discretion
of the Court whether to impose death sentence or to award only life
imprisonment to an accused convicted of the offence of murder. Section 302 does
not lay down any standards or principles to guide the discretion of the Court
in the matter of imposition of death penalty. The critical choice between
physical liquidation and lifelong incarceration is left to the discretion of
the Court and no legislative light is shed as to how this 158 deadly discretion
is to be exercised. The court is left free to navigate in an unchartered sea
without any compass or directional guidance. [341 A-C] 2:16. Actually section
354 (3) of the Criminal Procedure Code makes the exercise of discretion more
difficult and uncertain. It is left to the Judge to grope in the dark for
himself and in the exercise of his unguided and unfettered discretion decide
what reasons may be considered as 'special reasons' justifying award of death
penalty and whether in a given case any such special reasons exist which should
persuade the Court to depart from the normal rule and inflict death penalty on
the accused. There being no legislative policy or principle to guide the Court
in exercising its discretion in this delicate and sensitive area of life and
death, the exercise of discretion of the Court is bound to vary from judge to
judge. What may appear as special reasons to one judge may not so appear to
another and the decision in a given case whether to impose the death sentence
or to let off the offender only with life imprisonment would, to a large
extent, depend upon who is the judge called upon to make the decision. The
reason for his uncertainty in the sentencing process is two-fold.
Firstly, the nature of the sentencing process
is such that it involves a highly delicate task calling for skills and talents
very much different from those ordinarily expected of lawyers. Even if
considerations relevant to capital sentencing were provided by the legislature,
it would be a difficult exercise for the judges to decide whether to impose the
death penalty or to award the life sentence. But without any such guidelines
given by the legislature, the task of the judges becomes much more arbitrary
and the sentencing decision is bound to vary with each judge.
Secondly, when unguided discretion is
conferred upon the Court to choose between life and death, by providing a
totally vague and indefinite criterion of 'special reasons' without laying down
any principles or guidelines for determining what should be considered to be
'special reasons', the choice is bound to be influenced by the subjective
philosophy of the judge called upon to pass the sentence and on his value
system and social philosophy will depend whether the accused shall live or die.
No doubt the judge will have to give 'special reasons' if he opts in favour of
inflicting the death penalty, but that does not eliminate arbitrariness and
caprice, firstly because there being no guidelines provided by the legislature,
the reasons which may appeal to one judge as 'special reasons' may not appeal
to another, and secondly, because reasons can always be found for a conclusion
that the judge instinctively wishes to reach and the judge can bona fide and
conscientiously find such reasons to be 'special reasons'.
It is now recognised on all hands that
judicial conscience is not a fixed conscience; it varies from judge to judge
depending upon his attitudes and approaches, his predilections and prejudices,
his habits of mind and thought and in short all that goes with the expression
"social philosophy". Further, the various decisions in which special
reasons have been given singly and cumulatively indicate not merely that there
is an enormous potential of arbitrary award of death penalty by the High Court
and the Supreme Court but that, in fact, death sentence have been awarded
arbitrarily and freakishly.
[341 G, E-H, 342 E-H. 343 A-B, 353 E-F] 2:17.
But where the discretion granted to the Court is to choose between life and
death without any standards or guide-lines provided by the legislature, 159 the
death penalty does become arbitrary and unreasonable.
The death penalty is qualitatively different
from a sentence of imprisonment. Whether a sentence of imprisonment is for two
yeaes or five years or for life, it is qualitatively the same, namely, a
sentence of imprisonment, but the death penalty is totally of different. It is
irreversible; it is beyond recall or reparation; it extinguishes life. It is
the choice between life and death which the court is required to make and this
is left to its sole discretion unaided and unguided by any legislative
yardstick to determine the choice. [356 G-H. 357 A-B] 2:18. The only yardstick
which may be said to have been provided by the legislature is that life
sentence shall be the rule and it is only in exceptional cases for special
reasons that death penalty may be awarded, but it is no where indicated by the
legislature as to what should be regarded as 'special reasons' justifying
imposition of death penalty. The awesome and fearful discretion whether to kill
a man or to let him live is vested in the Court and the Court is called upon to
exercise this discretion guided only by its own perception of what may be
regarded as 'special reasons' without any light shed by the legislature. It is
difficult to appreciate how a law which confers such unguided discretion on the
Court without any standards or guidelines on so vital an issue as the choice
between life and death can be regarded as constitutionally valid. [357B- D]
2:19. Death penalty in its actual operation is discriminatory, for it strikes
mostly against the poor and deprived sections of the community and the rich and
the affluent usually escape from its clutches. This circumstance also adds to
the arbitrary and capricious nature of the death penalty and renders it
unconstitutional as being violative of Articles 14 and 21. [366G-H] 3:1. When a
law is challenged on the ground that it imposes restrictions on the freedom
guaranteed by one or the other sub-clause of clause (1) of Article 19 and the
restrictions are shown to exist by the petitioner, the burden of estabilshing
that the restrictions fall within any of the permissive clauses (2) to (6)
which may be applicable, must rest upon the State. The State would have to
produce material for satisfying the Court that the restrictions imposed by the
impugned law fall with the appropriate permissive clause from out of clauses
(2) to (6) of Article 19 Of course there may be cases where the nature of the
legislation and the restrictions imposed by it may be such that the Court may,
without more, even in the absence of any positive material produced by the
State, conclude that the restrictions fall within the permissible category, as
for example, where a law is enacted by the legislature for giving effect to one
of the Directive Principles of State Policy and prima facie, the restrictions
imposed by it do not appear to be arbitrary or excessive. Where such is the
position, the burden would again shift and it would be for the petitioner to
show that the restrictions are arbitrary or excessive and go beyond what is required
in public interest. But once it is shown by the petitioner that the impugned
law imposes restrictions which infringe one or the other sub-clause of clause
(1) of Article 19, the burden of showing that such restrictions are reasonable
and fall within the permissible category must be on the State and this burden
the State may discharge either by producing socio economic data before the
Court or on consideration of the provisions in the impugned 160 law read in the
light of the constitutional goals set out in the Directive Principles of State
Policy. The test to be applied for the purpose of determining whether the
restrictions imposed by the impugned law are reasonable or not cannot be cast
in a rigid formula of universal application. The nature of the right alleged to
have been infringed, the underlying purpose of the restrictions imposed, the
extent and urgency of the evil sought to be remedied, the value of human life.
the disproportion of the imposition, the social philosophy of the Constitution
and the prevailing conditions at the time would all enter into the judicial
verdict. And in evaluating such elusive factors and forming his own conception
of what is reasonable in all the circumstances of a given case, it is
inevitable that the social philosophy and the scale of values of the judge
participating in the decision would play a very important part. [293 G-H, 294
A-G] State of Madras v. V.J. Row [1952] SCR 597. Shagir Ahmed v. State of U.P.
[1955] 1 SCR 707 followed.
Khyerbari Tea Co. v. State of Assam [1964] 5
SCR 975;
B. Banerjee v. Anita Pan [1975] 2 SCR 774;
Ram Krishna Dalmia v. S.R. Tandolkar & Ors. [1959] SCR 279; State of Bombay
v. R.M.D. Chamarbaugwala [1957] SCR 874; Mohd. Hanif v. State of Bihar [1959]
SCR 629; discussed and distinguished.
Pathumma v. State of Kerala [1978] 2 SCR 537
referred to.
3:2. The position in regard to onus of proof
in a case where the challenge is under Article 21 is much clearer and much more
free from or doubt or debate than in a case where the complaint is of violation
of clause (1) of Article 19.
Wherever there is deprivation of life, i.e.
not only physical existence, but also use of any faculty or limb through which
life is enjoyed and basic human dignity, or of any aspect of personal liberty,
the burden must rest on the State to establish by producing adequate material
or otherwise that the procedure prescribed for such deprivation is not
arbitrary but is reasonable, fair and just. Where therefore a law authorises
deprivation of the right to life, the reasonableness, fairness and justness of
the procedure prescribed by it for such deprivation must be established by the
State. The burden must lie upon the State to show that death penalty is not
arbitrary and unreasonable and serves a legitimate social purpose, despite the
possibility of judicial error in convicting and sentencing an innocent man and
the brutality and pain, mental as well as physical, which death sentence
invariably inflicts upon the condemned prisoner. The State must place the
necesary material on record for the purpose of discharging this burden which
lies upon it and if it fails to show by presenting adequate evidence before the
Court or otherwise that death penalty is not arbitrary and unreasonable and
does serve a legitimate social purpose, the imposition of death penalty under
section 302 of the Indian Penal Code read with section 354 sub-section (3) of
the Code of Criminal Procedure would have to be struck down as violative of the
protection of Article
21. [295 A-C, 296 D-E] 3:3. There is a
presumption in favour of the constitutionality of a statute and the burden of
showing that it is arbitrary or discriminatory lies upon the petitioner,
because it must be presumed that the legislature understands and 161 correctly
appreciates the needs of its own people, that its laws are directed to problems
made manifest by experience and that its discriminations are based on adequate
grounds.
It would be a wise rule to adopt to presume
the constitutionality of a statute unless it is shown to be invalid. But this
rule is not a rigid inexorable rule applicable at all times and in all
situations. There may conceivably be cases where having regard to the nature
and character of the legislation. the importance of the right affected and the
gravity the injury caused by it and the moral and social issue involved in the
determination, the Court may refuse to proceed on the basis of presumption of
constitutionality and demand from the State justification of the legislation
with a view to establishing that it is not arbitrary or discriminatory. [296
G-H, 298 C-E] The burden rests on the State to establish by producing material
before the Court or authorities, that death penalty has greater deterrent
effect than life sentence in order to justify its imposition under the law. If
the State fails to discharge this burden which rests upon it, the Court would
have to hold that death penalty has not been shown to have greater deterrent
effect and it does not therefore serve a rational legislative purpose. [315
F-H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 273 of 1979.
Appeal by special leave from the Judgment and
Order dated the 14th August, 1978 of the Punjab & Haryana High Court in
Criminal Appeal No. 234 of 1978) WRIT PETITIONS NOS. 564, 165, 179, 168, 434,
89, 754, 756 & 976 of 1979.
(Under Article 32 of the Constitution of
India) AND Special Leave Petition (Criminal) No. 1732 of 1979 R.K. Jain, R.P.
Singh, Shiv Kumar Sharma Suman, Kapoor and Sukumar Sahu for the Petitioner in
W.P. 564/79.
Dr. Y.S. Chitale, Mukul Mudgal and A.K.
Ganguli for the Petitioner in W.P. No. 165 of 1979.
Vimal Dave and Miss Kailash Mehta for the
Petitioner in W.P. 179 of 1979.
WP. Nos. 168 & 89 of 1979; Jail
Petitions.
162 H.K. Puri, A.C. for the Appellant in Crl.
Appeal.
S.S. Khanduja and Lalit Kumar Gupta for the
Petitioner in W.P. No. 434 of 1979.
L.N. Gupta for the Petitioner in S.L.P.
L.M. Singhvi and S.K. Jain for the Petitioner
in WP. 754/79.
Harbans Singh for the Petitioner in W.P.
756/79 N.D. Garg for Mr. S.K. Bisaria and T.L. Garg for the Petitioner in WP.
976 of 1979.
Soli J. Sorabjee, Sol. Genl. in WP. 564 &
165- U.R.
Lalit, in WP. 564; for U.O.I., R.N. Sachthey,
for U.O.I., Gujarat, Haryana States, M.L. Shroff for Gujarat, Haryana &
Maharashtra, Miss A. Subhashini, and Mr. K.N. Bhatt, for U.O.I. for Respondent
No. 1 in WPs. 554, 179, R. 2 in WPs.
434 & 754, R.1 in WP. 165, R. 3 in WP.
756, R. 2 in WPs. 564 & 165. R in 168 & 89, RR 1 & 2 in WP. 756 and
RR 1 and 3 in WP. 754 of 1979.
D.P. Singh Chauhan, Addl. Advocate General,
U.P. and O.P. Rana for R. 2 in WP. 179.
R.S. Sodhi and Hardev Singh for R. 1 in WP.
434 & Respondent in Crl. A. 273 of 1979.
R.S. Sodhi for Respondent No. 3 in WP.
434/79.
R.L. Kohli and R.C. Kohli for the compalinant
in WP. 754/79.
D.P. Mukherjee for the Intervener No. 1.
Dr. LM Singhvi for the Intervener No. 2.
Intervener No. 3 in person.
V.J. Francis for the intervener No. 4.
R.K. Garg and R.K. Jain for the intervener
No. 5.
FOR THE ADVOCATES GENERAL:
1. Andhra Pradesh : P. Ramachandra Reddy,
Advocate General A.P. Rao and G.
Narayana 163
2. Gujarat : D.V. Patel, (Maharashtra) 3.
Maharashtra : R.N. Sachthey, (Gujarat) M.N.
Shroff Gujarat & Maharashtra
4. Jammu & : Altaf Ahmed Kashmir
5. Madhya : S.K. Gambhir Pradesh
6. Punjab : R.S. Sodhi and Hardev Singh
7. Orissa : G.B. Patnaik, Advocate General
and R.K. Mehta
8. Tamil Nadu : A.V. Rangam 9. West Bengal :
Sukumar Ghosh and G.S.
Chatterjee The following Judgments were
delivered:
SARKARIA, J. This reference to the Constitution
Bench raises a question in regard to the constitutional validity of death
penalty for murder provided in Section 302, Penal Code, and the sentencing
procedure embodied in sub-section (3) of Section 354 of the Code of Criminal
Procedure, 1973.
The reference has arisen in these
circumstances:
Bachan Singh, appellant in Criminal Appeal
No. 273 of 1979, was tried and convicted and sentenced to death under Section
302, Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai
by the Sessions Judge. The High Court confirmed his death sentence and
dismissed his appeal.
Bachan Singh's appeal by special leave, came
up for hearing before a Bench of this Court (consisting of Sarkaria and
Kailasam, JJ.). The only question for consideration in the appeal was, whether
the facts found by the Courts below would be "special reasons" for
awarding the death sentence as required under Section 354(3) of the Code of
Criminal Procedure 1973.
Shri H.K. Puri, appearing as Amicus Curiae on
behalf of the appellant, Bachan Singh, in Criminal Appeal No. 273 of 1979.
164 contended that in view of the ratio of
Rajendra Prasad v.
State of U.P.,(1) the Courts below were not
competent to impose the extreme penalty of death on the appellant. It was
submitted that neither the circumstance that the appellant was previously
convicted for murder and committed these murder after he had served out the
life sentence in the earlier case, not the fact that these three murders were
extremely heinous and inhuman, constitutes a "special reason" for
imposing the death sentence within the meaning of Section 354(3) of the Code of
Criminal Procedure 1973.
Reliance for this argument was placed on
Rajendra Prasad (ibid) which according to the counsel, was on facts very
similar, if not identical, to that case.
Kailasam, J. was of opinion that the majority
view in Rajendra Prasad taken by V.R. Krishna Iyer, J, who spoke for himself
and D.A. Desai, J., was contrary to the judgment of the Constitution Bench in
Jagmohan Singh v. State of Uttar Pradesh(2), inter alia, on these aspects:
(i) In Rajendra Prasad, V.R. Krishna Iyer, J.
observed :
"The main focus of our judgment is on
this poignant gap in 'human rights jurisprudence' within the limits of the
Penal Code, impregnated by the Constitution. To put it pithily, a world order
voicing the worth of the human person, a cultural legacy charged with
compassion, an interpretative liberation from colonial callousness to life and
liberty, a concern for social justice as setting the sights of individual
justice, interest with the inherited text of the Penal Code to yield the goals
desiderated by the Preamble and Articles 14, 19 and 21." According to
Kailasam, J., the challenge to the award of the death sentence as violative of
Articles 19, 14 and 21, was repelled by the Constitution Bench in Jagmohan's
case.
(ii) In Jagmohan's case, the Constitution
Bench held:
"The impossibility of laying down
standards (in the matter of sentencing) is at the very core of criminal law as
administered in India which invests the judges with a 165 very wide discretion
in the matter of fixing the degree of punishment and that this discretion in
the matter of sentence in liable to be corrected by superior Courts... The
exercise of judicial discretion on well recognised principles is, in the final
analysis, the safest possible safeguard for the accused." In Rajendra
Prasad, the majority decision characterised the above observations in Jagmohan
as: "incidental observations without concentration on the sentencing
criteria", and said that they are not the ratio of the decision, adding.
"Judgments are not Bible for every line to be venerated." (iii) In
Rajendra Prasad, the plurality observed:
"It is constitutionally permissible to
swing a criminal out of corporeal existence only if the security of State and
society, public order and the interests of the general public compel that
course as provided in Article 19(2) to (6)." This view again, according to
Kailasam, J., is inconsistent with the law laid down by the Constitution Bench
in Jagmohan, wherein it was held that deprivation of life is constitutionally
permissible if that is done according to "procedure established by
law".
(iv) In Rajendra Prasad, the majority has
further opined:
"The only correct approach is to read
into Section 302. I.P.C. and Section 354(3) Cr. P.C., the human rights and
humane trends in the Constitution. So examined, the rights to life and the
fundamental freedoms is deprived when he is hanged to death, his dignity is
defiled when his neck is noosed and strangled." Against the above,
Kailasam, J. commented : 'The only change after the Constitution Bench
delivered its judgment is the introduction of Section 354(3) which requires
special reasons to be given if the Court is to award the death sentence. If
without the restriction of stating sufficient reasons death sentence could be
constitutionally awarded under the I.P.C. and Cr. P.C. as it stood before the
amendment, it is difficult to perceive how by requiring special reasons to 166
be given the amended section would be unconstitutional unless the
"sentencing sector is made most restrictive and least vagarious".
(v) In Rajendra Prasad, the majority has held
that:
"Such extraordinary grounds alone
constitutionally qualify as special reasons as leave on option to the Court but
to execute the offender if State and society are to survive. One stroke of
murder hardly qualifies for this drastic requirement, however, gruesome the
killing or pathetic the situation, unless the inherent testimony coming from
that act is irresistible that the murderous appetite of the convict is too
chronic and deadly that ordered life in a given locality or society or in
prison itself would be gone if this man were now or later to be at large. If he
is an irredeemable, like a bloodthirsty tiger, he has to quit his terrestrial
tenancy." According to Kailasam, J., what is extracted above, runs
directly counter to and cannot be reconciled with the following observations in
Jagmohan's case:
"But some (murders) at least are diabolical
in conception and cruel in execution. In some others where the victim is a
person of high standing in the country, society is liable to be recked to its
very foundation.
Such murders cannot be simply wished away by
finding alibis in the social maladjustment of the murderer.
Prevalence of such crimes speaks, in the
opinion of many, for the inevitability of death penalty not only by way of
deterrence but as a token of emphatic disapproval by the society A very
responsible body (Law Commission) has come to the conclusion after considering
all the relevant factors. On the conclusions thus offered to us, it will be
difficult to hold that capital punishment as such is unreasonable or not
required in the public interest." (vi) Kailasam, J. was further of the
opinion that it is equally beyond the functions of a Court to evolve
"working rules for imposition of death sentence bearing the markings of
enlightened flexibility and social sensibility" or to make law "by
cross-fertilisation 167 from sociology, history, cultural anthropology and
current national perils and developmental goals and, above all, constitutional
currents". This function, in his view, belongs only to Parliament. The
Court must administer the law as it stands.
(vii) The learned Judge has further expressed
that the view taken by V.R. Krishna Iyer, J. in Rajendra Prasad that "
'special reasons' necessary for imposing death penalty must relate not to the
crime as such, but to the criminal" is not warranted by the law as it
stands today.
Without expressing his own opinion on the
various questions raised in that case including the one with regard to the
scope, amplification and application of Section 354 (3) of the Code of Criminal
Procedure, 1974, Sarkaria, J., in agreement with Kailasam, J., directed the
records of the case to be submitted to the Hon'ble the Chief Justice, for
constituting a large Bench "to resolve the doubts, difficulties and
inconsistencies pointed out by Kailasam, J." In the meanwhile, several
persons convicted of murders and sentenced to death, filed writ petitions
(namely, Writ Petitions 564, 165, 179, 434, 89, 754, 756 and 976 of 1979) under
Article 32 of the Constitution directly challenging the constitutional validity
of the death penalty provided in Section 302 of the Indian Penal Code for the
offence of murder, and the sentencing procedure provided in Section 354 (3) of
the Code of Criminal Procedure, 1974. That is how, the matter has now come up
before this larger Bench of five Judges.
At the outset, Shri R.K. Garg submitted with
some vehemance and persistence, that Jagmohan's case needs reconsideration by a
larger Bench if not by the Full Court.
Reconsideration of Jagmohan, according to the
learned counsel, is necessitated because of subsequent events and changes in
law. Firstly, it is pointed out that when Jagmohan was decided in 1972, the
then extant Code of Criminal Procedure, 1898 left the choice between death and
life imprisonment as punishment for murder entirely to the discretion of the
Court. This position has since undergone a complete change and under Section
354 (3) of the Code of Criminal Procedure, 1973, death sentence has ceased to
be the normal penalty for murder. Secondly, 168 it is argued, the seven-Judge
decision of this Court in Maneka Gandhi v. Union of India(1) has given a new
interpretative dimension of the provisions of Articles 21, 19 and 14 and their
inter-relationship, and according to this new interpretation every law of
punitive detention both in its procedural and substantive aspects must pass the
test of all the three Articles. It is stressed that an argument founded on this
expansive interpretation of these Articles was not available when Jagmohan was
decided. Thirdly, it is submitted that India has since acceded to the
international Covenant of Civil and Political Rights adopted by the General
Assembly of the United Nations, which came into force in December 16, 1976. By
virtue of this Covenant.
India and the other 47 countries who are a
party to it, stand committed to a policy for abolition of the 'death penalty'.
Dr. L.M. Singhvi submitted that the question
of death penalty cannot be foreclosed for ever on the abstract doctrine of
stare decisis by a previous decision of this Court. It is emphasised that the
very nature of the problem is such that it must be the subject of review from
time to time so as to be in tune with the evolving standards of decency in a
maturing society.
The learned Solicitor-General, Shri Soli
Sorabji opposed the request of Shri Garg for referring the matter to a larger
Bench because such a course would only mean avoidable delay in disposal of the
matter. At the same time, the learned counsel made it clear that since the
constitutionality of the death penalty for murder was now sought to be
challenged on additional arguments based on subsequent events and changes in
law, he would have no objection on the ground of stare decisis, to a fresh
consideration of the whole problem by this very Bench.
In view of the concession made by Shri
Sorabji, we proceeded to hear the counsel for the parties at length, and to
deal afresh with the constitutional questions concerning death penalty raised
in these writ petitions.
We have heard the arguments of Shri R.K.
Garg.
appearing for the writ-petitioners in Writ
Petition No. 564/79 for more than three weeks and also those of Dr. L.M. Singhvi,
Dr. Chitaley and 169 S/Shri Mukhoty, Dave and R.K. Jain, appearing for
interveners or for the other writ-petitioners.
We have also heard the arguments of Shri Soli
Sorabji, Solicitor-General, appearing for the Union of India and Shri Patel
appearing for the State of Maharashtra and the other counsel appearing for the
respondents.
The principal questions that fall to be
considered in this case are:
(I) Whether death penalty provided for the
offence of murder in Section 302, Penal Code is unconstitutional.
(II) If the answer to the foregoing question
be in the negative, whether the sentencing procedure provided in Section 354
(3) of the Code of Criminal Procedure, 1973 (Act 2 of 1974) is unconstitutional
on the ground that it invests the Court with unguided and untrammelled
discretion and allows death sentence to be arbitrarily or freakishly imposed on
a person found guilty of murder or any other capital offence punishable under
the Indian Penal Code with death or, in the alternative, with imprisonment for
life.
We will first take up Question No. (I)
relating to the constitutional validity of Section 302, Penal Code.
Question No. (I):
Before dealing with the contentions
canvassed, it will be useful to have a short survey of the legislative history
of the provisions of the Penal Code which permit the imposition of death
penalty for certain offences.
The Indian Penal Code was drafted by the
First Indian Law Commission presided over by Mr. Macaulay. The draft underwent
further revision at the hands of well-known jurists, like Sir Barnes Peacock,
and was completed in 1850.
The Indian Penal Code was 170 passed by the
then Legislature on October 6, 1860 and was enacted as Act No XLV of 1860.
Section 53 of the Penal Code enumerates
punishments to which offenders are liable under the provisions of this Code.
Clause Firstly of the Section mentions 'Death' as one of such punishments.
Regarding 'death' as a punishment, the authors of the Code say: "We are
convinced that it ought to be very sparingly inflicted, and we propose to
employ it only in cases where either murder or the highest offence against the
State has been committed." Accordingly, under the Code, death is the
punishment that must be awarded for murder by a person under sentence of
imprisonment for life (Section 303). This apart, the Penal Code prescribes
'death' as an alternative punishment to which the offenders may be sentenced,
for the following seven offences:
(1) Waging war against the Government of
India. (s. 121) (2) Abetting mutiny actually committed. (s. 132) (3) Giving or
fabricating false evidence upon which an innocent person suffers death. (s.
194) (4) Murder which may be punished with death or life imprisonment. (s. 302)
(5) Abetment of suicide of a minor or insane, or intoxicated person. (s. 305)
(6) Dacoity accompanied with murder. (s. 396) (7) Attempt to murder by a person
under sentence of imprisonment for life if hurt is caused. (s. 307) In the
instant cases, the impugned provision of the Indian Penal Code is Section 302
which says: "Whoever commits murder shall be punished with death, or
imprisonment for life, and also be liable to fine." The related provisions
are contained in Sections 299 and 300. Section 299 defines 'culpable homicide'.
Section 300 defines 'murder'. Its material part runs as follows:
"Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by which the death is caused
is done with the intention of causing death, or 171 Secondly-If it is done with
the intention of causing such bodily injury as the offender knows to be likely
to cause death of the person to whom the harm is caused, or Thirdly-If it is
done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature
to cause death, or Fourthly-If the person committing the act knows that it is
so imminently dangerous that it must, in all probability, cause death, or such
bodily injury as is likely to cause death, and commits, such act without any
excuse for incurring the risk of causing death or such injury as
aforesaid." The first contention of Shri Garg is that the provision of
death penalty in Section 302, Penal Code offends Article 19 of the Constitution.
It is submitted that the right to live is basic to the enjoyment of all the six
freedoms guaranteed in clauses (a) to (e) and (g) of Article 19 (1) of the
Constitution and death penalty puts an end to all these freedoms: that since
death penalty serves no social purpose and its value as a deterrent remains
unproven and it defiles the dignity of the individual so solemnly vouchsafed in
the Preamble of the Constitution, its imposition must be regarded as an
'unreasonable restriction' amounting to total prohibition, on the six freedoms
guaranteed in Article 19 (1).
Article 19, as in force today, reads as
under:
"19 (1). All citizens shall have the
right- (a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory
of India;
(e) to reside and settle in any part of the
territory of India;
(f) .....................;
172 (g) to practice any profession, or to
carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1)
shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests of the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said
clause shall affect the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order, reasonable restrictions on
the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said
clause shall affect the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order or morality, reasonable
restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clauses (d) and (e) of the
said clause shall affect the operation of any existing law in so far as it
imposes, or prevents the State from making any law imposing, reasonable
restrictions on the exercise of any of the rights conferred by the said
sub-clauses either in the interests of the general public or for the protection
of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said
clause shall affect the operation of any existing law in so far as it imposes,
or prevents the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right con- 173
ferred by the said sub-clause, and in particular, nothing in the said
sub-clause, shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to,- (i) the
professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business, or (ii) the
carying on by the State, or by a corporation owned or controlled by the State,
of any trade, business, industry or service, whether to the exclusion, complete
or partial, of citizens or otherwise." It will be seen that the first part
of the Article declares the rights in clause (1) comprising of six sub- clauses
namely, (a) to (e) and (g). The second part of the Article in its five clauses
(2) to (6) specifies the limits upto which the abridgement of the rights
declared in one or more of the sub-clauses of clause (1), may be permitted.
Broadly speaking, Article 19 is intended to
protect the rights to the freedoms specifically enumerated in the six
sub-clauses of clause (1) against State action, other than in the legitimate
exercise of its power to regulate these rights in the public interest relating
to heads specified in clauses (2) to (6). The six fundamental freedoms
guaranteed under Article 19 (1) are not absolute rights. Firstly, they are
subject to inherent restraints stemming from the reciprocal obligation of one
member of a civil society to so use his rights as not to infringe or injure similar
rights of another. This is on the principle sic utere tuo ut alienum non
laedas. Secondly, under clauses (2) to (6) these rights have been expressly
made subject to the power of the State to impose reasonable restrictions, which
may even extend to prohibition, on the exercise of those rights.
The power, if properly exercised, is itself a
safeguard of the freedoms guaranteed in clause (1). The conferment of this
power is founded on the fundamental truth that uncontrolled liberty entirely
freed from restraint, degenerates into a licence, leading to anarchy and chaos;
that libertine pursuit of liberty, absolutely
free, and free for all, may mean liberticide for all. "Liberty has,
therefore," as 174 Justice Patanjali Sastri put it, "to be limited in
order to be effectively possessed." It is important to note that whereas
Article 21 expressly deals with the right to life and personal liberty, Article
19 does not. The right to life is not one of the rights mentioned in Article 19
(1).
The first point under Question (1) to be
considered is whether Article 19 is at all applicable for judging the validity
of the impugned provision in Section 302, Penal Code.
As rightly pointed out by Shri Soli Sorabji,
the condition precedent for the applicability of Article 19 is that the
activity which the impugned law prohibits and penalises, must be within the
purview and protection of Article 19 (1). Thus considered, can any one say that
he has a legal right or fundamental freedom under Article 19 (1) to practise
the profession of a hired assassin or to form associations or unions or engage
in a conspiracy with the object of committing murders or dacoities. The
argument that the provisions of the Penal Code, prescribing death sentence as
an alternative penalty for murder have to be tested on the ground of Article
19, appears to proceed on the fallacy that the freedoms guaranteed by Article
19 (1) are absolute freedoms and they cannot be curtailed by law imposing
reasonable restrictions, which may amount to total prohibition. Such an
argument was advanced before the Constitution Bench in The State of Bombay v.
R.M.D.
Chamarbaugwala.(1) In that case the
constitutional validity of certain provisions of the Bombay Lotteries and Prize
Competition Control Act, 1952, as amended by Bombay Act No.
XXX of 1952, was challenged on the ground,
inter alia, that it infringes the fundamental rights of the promoters of such
competitions under Article 19 (1) (g), to carry on their trade or business and
that the restrictions imposed by the said Act cannot possibly be supported as
reasonable restrictions in the interest of the general public permissible under
Article 19 (b). It was contended that the words "trade" or
"business" or "commerce" in sub-clause (g) of Article 19
(a) should be read in their widest amplitude as any activity which is
undertaken or carried on with a view to earning profit since there is nothing
in Article 19 (1) (g) which may qualify or cut down the meaning of the critical
words; that there is no justification for excluding from the meaning 175 of
those words activities which may be looked upon with disfavour by the State or
the Court as injurious to public morality or public interest. Speaking for the
Constitution Bench, S.R. Das, C.J. repelled this contention, in these terms:
"On this argument it will follow that
criminal activities undertaken and carried on with a view to earning profit
will be protected as fundamental rights until they are restricted by law. Thus
there will be a guaranteed right to carry on a business of hiring out goondas
to commit assault or even murder, or house- breaking, or selling obscene
pictures, of trafficking in women and so on until the law curbs or stops such
activities. This appears to us to be completely unrealistic and incongruous. We
have no doubt that there are certain activities which can under no circumstance
be regarded as trade or business or commerce although the usual forms and
instruments are employed therein. To exclude those activities from the meaning
of those words is not to cut down their meaning at all but to say only that
they are not within the true meaning of those words." This approach to the
problem still holds the field. The observations in Chamarbaugwala, extracted
above, were recently quoted with approval by V.R. Krishna Iyer., J., while
delivering the judgment of the Bench in Fatehchand Himmatlal & Ors. v.
State of Maharashtra(1).
In A.K. Gopalan v. The State of Madras (2),
all the six learned Judges constituting the Bench held that punitive detention
or imprisonment awarded as punishment after conviction for an offence under the
Indian Penal Code is outside the scope of Article 19, although this conclusion
was reached by them by adopting more or less different approaches to the
problem.
It was contended on behalf of A.K. Gopalan
that since the preventive detention order results in the detention of the
detenu in a cell, his rights specified in clauses (a) to (e) and (g) of Article
19 (1) have been infringed.
176 Kania, C J. rejected this argument, inter
alia, on these grounds:
(i) Argument would have been equally
applicable to a case of punitive detention, and its acceptance would lead to
absurd results. "In spite of the saving clauses (2) to (6), permitting
abridgement of the rights connected with each other, punitive detention under
several sections of the Penal Code, e.g. for theft, cheating, forgery and even
ordinary assault, will be illegal, (because the reasonable restrictions in the
interest of "public order" mentioned in clauses (2) to (4) of the
Article would not cover these offences and many other crimes under the Penal
Code which injure specific individuals and do not affect the community or the
public at large). Unless such conclusion necessarily follows from the article,
it is obvious that such construction should be avoided. In my opinion, such
result is clearly not the outcome of the Constitution." (The underlined
words within brackets supplied.) (At page 100 of the Report) (ii) Judged by the
test of direct and indirect effect on the rights referred to in article 19 (1),
the Penal Code is not a law imposing restrictions on these rights. The test is
that "the legislation to be examined must be directly in respect of one of
the rights mentioned in the sub-clauses. If there is a legislation directly
attempting to control a citizen's freedom of speech or expression or his right
to assemble peaceably and without arms, etc., the question whether that
legislation is saved by the relevant saving clause of Article 19 will arise.
If, however, the legislation is not directly in respect of any of these
subjects, but as a result of the operation of other legislation, for instance,
for punitive or preventive detention, his right under any of these sub- clauses
is abridged, the question of the application of Article 19 does not arise. The
true approach is only to consider the directness of the legislation and not
what will be the result of the detention otherwise valid, on the mode of the
detenu's life." (Pages 100-101).
177 (iii)"The contents and
subject-matter of articles 19 and 21 are thus not the same..." (Page 105).
"Article 19 (5) cannot apply to a
substantive law depriving a citizen of personal liberty." "Article 19
(1) does not purport to cover all aspects of liberty or of personal liberty.
Personal liberty would primarily mean liberty of the physical body.
The rights given under article 19 (1) do not
directly come under that description. In that Article only certain phases of
liberty are dealt with". (Page 106) "In my opinion therefore, Article
19 should be read as a separate complete Article". (Page 107).
Patanjali Sastri, J., also, opined "that
lawful deprivation of personal liberty on conviction and sentence for
committing a crime, or by a lawful order of preventive detention is "not
within the purview of Article 19 at all, but is dealt with by the succeeding
Articles 20 and 21." (Page 192). In tune with Kania, C.J., the learned
Judge observed: "A construction which would bring within Article 19
imprisonment in punishment of a crime committed or in prevention of a crime
threatened would, as it seems to me, make a reductio ad absurdum of that
provision. If imprisonment were to be regarded as a 'restriction' of the right
mentioned in article 19 (1) (d), it would equally be a restriction on the
rights mentioned by the other sub-clauses of clause (1), with the result that
all penal laws providing for imprisonment as a mode of punishment would have to
run the gauntlet of clauses (2) to (6) before their validity could be accepted.
For instance, the law which imprisons for theft would on that view, fall to be
justified under clause (2) as a law sanctioning restriction of freedom of
speech and expression." (Page 192).
"Article 19 confers the rights therein
specified only on the citizens of India, while article 21 extends the
protection of life and personal liberty to all persons citizens and
non-citizens alike. Thus, the two Articles do not operate in a coterminous
field." (Page 193).
"(Personal liberty) was used in Article
21 as a sense which excludes the freedoms dealt in Article 19 ....."
Rejecting the argument of the Attorney General, the learned Judge held that
clauses (4) to (7) of Article 22 do not form a complete 178 Code and that
"the language of Article 21 is perfectly general and covers deprivation of
personal liberty or incarceration, both for punitive and preventive
reasons." (Page 207).
Mahajan, J., however, adopted a different
approach. In his judgment, "an examination of the provisions of Article 22
clearly suggests that the intention was to make it self- contained as regards
the law of preventive detention and that the validity of a law on the subject
of preventive detention cannot be examined or controlled either by the
provisions of Article 21 or by the provisions of Article 19(5)." (Page
229).
Mukerjee, J. explained the relative scope of
the Articles in this group, thus: "To me it seems that Article 19 of the
Constitution gives a list of individual liberties and prescribes in the various
clauses the restraints that may be placed upon them by law so that they may not
conflict with public welfare or general morality. On the other hand, Articles
20, 21 and 22 are primarily concerned with penal enactments or other laws under
which personal safety or liberty of persons could be taken away in the
interests of the society and they set down the limits within which the State
control should be exercised. In my opinion, the group of articles 20 to 22
embody the entire protection guaranteed by the Constitution in relation to
deprivation of life and personal liberty both with regard to substantive as
well as to procedural law." (Page 255).
"The only proper way of avoiding these
anomalies is to interpret the two provisions (articles 19 and 21) as applying
to different subjects. It is also unnecessary to enter into a discussion on the
question...as to whether article 22 by itself is a self-contained Code with
regard to the law of Preventive Detention." (Page 257).
S.R. Das, J., also, rejected the argument
that the whole of the Indian Penal Code is a law imposing reasonable restriction
on the rights conferred by Article 19 (1), with these observations (at Page
303) :
"To say that every crime undermines the
security of the State and, therefore, every section of the Indian Penal Code,
irrespective of whether it has any reference to speech or expression, is a law
within the meaning of this clause is wholly unconvincing and betrays only a
vain and forlorn 179 attempt to find an explanation for meeting the argument
that any conviction by a Court of law must necessarily infringe article 19 (1)
(a). There can be no getting away from the fact that a detention as a result of
a conviction impairs the freedom of speech for beyond what is permissible under
clause (2) of article 19.
Likewise, a detention on lawful conviction
impairs each of the other personal rights mentioned in sub-clauses (3) to (6).
The argument that every section of the Indian Penal Code irrespective of
whether it has any reference to any of the rights referred to in sub- clauses
(b) to (e) and (g) is a law imposing reasonable restriction on those several
rights has not even the merit of plausibility. There can be no doubt that a
detention as a result of lawful conviction must necessarily impair the
fundamental personal rights guaranteed by article 19 (1) far beyond what is
permissible under clauses (2) to (6) of that article and yet nobody can think
of questioning the validity of the detention or of the section of the Indian
Penal Code under which the sentence was passed." (ii) Das, J. then gave an
additional reason as to why validity of punitive detention or of the sections
of the Penal Code under which the sentence was passed, cannot be challenged on
the ground of article 19, thus :
"Because the freedom of his person
having been lawfully taken away, the convict ceases to be entitled to exercise
.. any of the .. rights protected by clause (1) of article 19." (iii) The
learned Judge also held that "article 19 protects some of the important
attributes of personal liberty as independent rights and the expression
'personal liberty' has been used in article 21 as a compendious term including
within its meaning all the varieties of rights which go to make up the personal
liberties of men." (Page 299).
Fazal Ali, J. dissented from the majority. In
his opinion: "It cannot be said that articles 19, 20, 21 and 22 do not to
some extent overlap each other. The case of a person who is convicted of an 180
offence will come under article 20 and 21 and also under article 22 so far as
his arrest and detention in custody before trial are concerned. Preventive
detention, which is dealt with in article 22, also amounts to deprivation of
personal liberty which is referred to in article 19 (1) (d)." (Page 148).
Fazal Ali, J. held that since preventive
detention, unlike punitive detention, directly infringes the right under
Article 19(1)(d), it must pass the test of clause (5).
According to the learned Judge, only those
laws are required to be tested on the anvil of Article 19 which directly
restrict any of the rights guaranteed in Article 19(1).
Applying this test (of direct and indirect
effect) to the provisions of the Indian Penal Code, the learned Judge pointed
out that the Code "does not primarily or necessarily impose restrictions
on the freedom of movement, and it is not correct to say that it is a law
imposing restrictions on the right to move freely. Its primary object is to
punish crime and not to restrict movement. The punishment may consist in
imprisonment or a pecuniary penalty. If it consists in a pecuniary penalty, it
obviously involves no restriction on movement, but if it consists in
imprisonment, there is a restriction on movement. This restraint is imposed not
under a law imposing restrictions on movement but under a law defining crime
and making it punishable. The punishment is correlated with the violation of
some other person's right and not with the right of movement possessed by the
offender himself. In my opinion, therefore, the Indian Penal Code does not come
within the ambit of the words "law imposing restriction on the right to
move freely." (Pages 145-146).
In applying the above test, which was the
same as adopted by Kania, C.J., Fazal Ali, J. reached a conclusion contrary to
that reached by the Chief Justice, on the following reasoning ;
"Punitive detention is however
essentially different from preventive detention. A person is punitively
detained only after trial for committing a crime and after his guilt has been
established in a competent court of justice. A person so convicted can take his
case to the State High Court and sometimes bring it to this Court also; and he
can in the course of the proceedings connected with his trial take all pleas
available to him including the plea of want of jurisdiction of the Court of
trial and the invalidity of the law 181 under which he has been prosecuted. The
final judgment in the criminal trial will thus constitute a serious obstacle in
his way if he chooses to assert even after his conviction that his right under
article 19(1)(d) has been violated. But a person who is preventively detained
has not to face such an obstacle whatever other obstacle may be in his
way." (Page 146) We have copiously extracted from the judgments in A.K. Gopalan's
case, to show that all the propositions propounded, arguments and reasons
employed or approaches adopted by the learned Judges in that case, in reaching
the conclusion that the Indian Penal Code, particularly those of its provisions
which do not have a direct impact on the rights conferred by Article 19(1), is
not a law imposing restrictions on those rights, have not been overruled or
rendered bad by the subsequent pronouncements of this Court in Bank
Nationalizaton(1) case or in Maneka Gandhi's case.
For instance, the proposition laid down by
Kania, C.J., Fazal Ali, Patanjali Sastri, and S.R. Das, J.J. that the Indian
Penal Code particularly those of its provisions which cannot be justified on
the ground on reasonableness with reference to any of the specified heads, such
as "public order" in clauses (2), (3) and (4), is not a law imposing
restrictions on any of the rights conferred by Article 19(1), still holds the
field. Indeed, the reasoning, explicit, or implicit in the judgments of Kania,
C.J., Patanjali Sastri and S.R. Das JJ. that such a construction which treats
every section of the Indian Penal Code as a law imposing 'restriction' on the
rights in Article 19(1), will lead to absurdity is unassailable. There are
several offences under the Penal Code, such as theft, cheating, ordinary
assault, which do not violate or effect 'public order,' 'but only law and
order'. These offences injure only specific individuals as distinguished from
the public at large. It is by now settled that 'public order' means 'even tempo
of the life of the community.' That being so, even all murders do not disturb
or affect 'public order'. Some murders may be of purely private significance
and the injury or harm resulting therefrom affects only specific individuals
and, consequently, such murders may not be covered by "public order"
within the contemplation of clauses (2), (3) and (4) of article 19. Such
murders do not lead to public disorder but to disorder simpliciter. Yet, no
rational being can say (1) [1970] 3 SCR 530.
182 that punishment of such murders is not in
the general public interest. It may be noted that general public interest is
not specified as a head in clauses (2) to (4) on which restriction on the
rights mentioned in clause (1) of the Article may be justified.
It is true, as was pointed out by
Hidayatullah, J. (as he then was) in Dr. Ram Manohar Lohia's(1) case, and in
several other decisions that followed it, that the real distinction between the
areas of 'law and order' and 'public order' lies not merely in the nature or
quality of the act, but in the degree and extent. Violent crimes similar in
nature, but committed in different contexts and circumstances might cause
different reactions. A murder committed in given circumstances may cause only a
slight tremor, the wave length of which does not extent beyond the parameters
of law and order. Another murder committed in different context and
circumstances may unleash a tidal wave of such intensity, gravity and
magnitude, that its impact throws out of gear the even flow of life.
Nonetheless the fact remains that for such murders which do not affect "public
order", even the provision for life imprisonment in Section 302, Indian
Penal Code, as as alternative punishment, would not be justifiable under
clauses (2), (3) and (4) as a reasonable restriction in the interest of 'Public
Order'. Such a construction must, therefore, be avoided. Thus construed,
Article 19 will be attracted only to such laws, the provisions of which are
capable of being tested under clauses (2) to (5) of Article 19.
This proposition was recently (1975)
reiterated in Hardhan Saha & Anr. v. State of West Bengal(2). In accord
with this line of reasoning in A.K. Gopalan's case, a Constitution Bench of
this Court in Hardhan Saha's case restated the principle for the applicability
of Article 19 by drawing a distinction between a law of preventive detention
and a law providing punishment for commission of crimes, thus :
"Constitution has conferred rights under
Article 19 and also adopted preventive detention to prevent the greater evil of
elements imperilling the security, the safety of a State and the welfare of the
nation. It is not possible to think that a person who is detained will yet be
free to move (1) [1966] 1 S.C.R. 709.
(2) [1975] 1 S.C.R. 778 at p. 784.
183 for assemble or form association or
unions or have the right to reside in any part of India or have the freedom of
speech or expression. Suppose a person is convicted of an offence of cheating
and prosecuted (and imprisoned) after trial, it is not open to say that the
imprisonment should be tested with reference to Article 19 for its
reasonableness. A law which attracts Article 19 therefore must be such as is
capable of being tested to be reasonable under clauses (2) to 5 of Article
19." (emphasis and parenthesis supplied.) The last sentence which has been
underlined by us, appears to lend implicit approval to the rule of construction
adopted by the majority of the learned Judges in A.K. Gopalan's case, whereby
they excluded from the purview of Article 19 certain provisions of the Indian
Penal Code providing punishment for certain offences which could not be tested
on the specific grounds-embodied in clauses (2) to (5) of that Article. This
proposition enunciated in A.K. Gopalan's case is only a product of the
application of the basic canon that a construction which would lead to
absurdity, should be eschewed.
In R.C. Cooper v. Union of India (popularly
known as Bank Nationalization case), the majority adopted the two- fold test
for determining as to when a law violated fundamental rights, namely: "(1)
It is not the object of the authority making the law impairing the right of a
citizen, nor the form of action that determines the protection he can claim.
(2) It is the effect of the law and of the action upon the right which attract
the jurisdiction of the Court to grant relief. The direct operation of the act
upon the rights forms the real test." In Maneka Gandhi v. Union of India
(ibid), Bhagwati, J.
explained the scope of the same test by
saying that a law or and order made thereunder will be hit by article 19, if
the direct and inevitable consequence of such law or order is to abridge or
take away any one or more of the freedoms guaranteed by Article 19(1). If the
effect and operation of the statute by itself, upon a person's fundamental
rights is remote or dependent upon "factors which may or may not come into
play", then such statute is not ultra-vires on the ground of its being
violative of that fundamental right.
Bhag- 184 wati J. described this proposition
as "the doctrine of intended and real effect" while Chandrachud, J.
(as he then was) called it "the test of proximate effect and operation of
the statute." The question is, whether R.C. Cooper & Maneka Gandhi
have given a complete go-by to the 'test of direct and indirect effect,
sometimes described as form and object test' or 'pith and substance rule',
which was adopted by Kania, C.J. and Fazal Ali, J. in A.K. Gopalan's case. In
our opinion, the answer to this question cannot be in the affirmative. In the
first place, there is nothing much in the name. As Varadachariar, J. put it in
Subrahmanyan Chettiar's(1) case, such rules of interpretation were evolved only
as a matter of reasonableness and common sense and out of the necessity of
satisfactorily solving conflicts from the inevitable overlapping of subjects in
any distribution of powers. By the same yardstick of common sense, the 'pith
and substance rule' was applied to resolve the question of the
constitutionality of a law assailed on the ground of its being violative of a
fundamental right.
Secondly, a survey of the decisions of this
Court since A.K. Gopalan, shows that the criterion of directness which is the
essence of the test of direct and indirect effect, has never been totally
abandoned. Only the mode of its application has been modified and its scope
amplified by judicial activism to maintain its efficacy for solving new
constitutional problems in tune with evolving concepts of rights and
obligations in a strident democracy.
The test of direct and indirect effect
adopted in A.K. Gopalan was approved by the Full Court in Ram Singh v. State of
Delhi.(2) Therein, Patanjali Sastri, J. quoted with approval the passages (i)
and (ii) (which we have extracted earlier) from the judgment of Kania, C. J.
Although Mahajan and Bose, JJ. differed on the merits, there was no dissent on
this point among all the learned Judges.
The first decision, which, though purporting
to follow Kania, C. J's. enunciation in A.K. Gopalan, imperceptibly added
another dimension to the test of directness, was Express Newspapers (Private)
Ltd. & Anr. v. The Union of India & Ors.(3) In that case, the cons- (1)
[1940] FCR 188.
(2) [1951] SCR 451.
(3) [1959] SCR 12.
185 titutional validity of the Working
Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, and
the legality of the decision of the Wage Board, constituted thereunder, were
challenged. The impugned Act, which had for its object the regulation of the
conditions of service of working journalists and other persons employed in
newspaper establishments, provided, inter alia, for the payment of gratuity to
a working journalist who had been in continuous service for a certain period.
It also regulated hours of work and leave and provided for retrenchment
compensation.
Section 9 (1) laid down the principles that
the Wage Board was to follow in fixing the rates of wages of working
journalists.
One of the contentions of the petitioners in
that case was that impugned Act violated their fundamental rights under
Articles 19 (1) (a), 19 (1) (g), 14 and 32 of the Constitution and that the
decision of the Wage Board fixing the rates and scales of wages which imposed
too heavy a financial burden on the industry and spelled its total ruin, was
illegal and void. It was contended by the learned Attorney General in that case
that since the impugned legislation was not a direct legislation on the subject
of freedom of speech and expression. Art. 19 (1)(a) would have no application,
the test being not the effect or result of legislation but its subject-matter.
In support of his contention, he relied upon the observations on this point of
Kania, C. J. in A. K. Gopalan. It was further urged that the object of the
impugned Act was only to regulate certain conditions of service of working
journalists and other persons employed in the newspaper establishments and not
to take away or abridge the freedom of speech or expression enjoyed by the
petitioners and, therefore, the impugned Act could not come within the
prohibition of Article 19 (1) (a) read with Article 32 of the Constitution.
On the other hand, the petitioners took their
stand on a passage in the decision of the Supreme Court of United States in
Minnesota Ex Rel. Olson,(1) which was as under :
"With respect to these contentions it is
enough to say that in passing upon constitutional questions the Court has
regard to substance and not to mere matters of form, and that, in accordance
with familiar principles, the statute must be tested by its operation and
effect." (1) [1930] 283 US 697 at p. 708.
186 It was further submitted that in all such
cases, the Court has to look behind the names, forms and appearances to
discover the true character and nature of the legislation.
Thus considered, proceeded the argument, the
Act by laying a direct and preferential burden on the press, would tend to
curtail the circulation, narrow the scope of dissemination of information and
fetter the petitioners' freedom to choose the means of exercising their rights
of free speech (which includes the freedom of the press). It was further
submitted that those newspaper employers who were marginally situated may not
be able to bear the strain and have to disappear after closing down their
establishments.
N.H. Bhagwati, J. who delivered the unanimous
Judgment of the Constitution Bench, after noting that the object of the
impugned legislation is to provide for the amelioration of the conditions of
the workmen in the newspaper industry, overruled this contention of the
employers, thus:
"That, however would be a consequence
which would be extraneous and not within the contemplation of the legislature.
It could therefore hardly be urged that the possible effect of the impact of
these measures in conceivable cases would vitiate the legislation as such. All
the consequences which have been visualized in the behalf by the petitioners,
viz., the tendency to curtail circulation and thereby narrow the scope of
dissemination of information, fetters on the petitioners' freedom to choose the
means of exercising the right, likelihood of the independence of the press
being undermined by having to seek government aid; the imposition of penalty on
the petitioners' right to choose the instruments for exercising the freedom or
compelling them to seek alternative media, etc., would be remote and depend
upon various factors which may or may not come into play. Unless these were the
direct or inevitable consequences of the measures enacted in the impugned Act,
it would not be possible to strike down the legislation as having that effect
and operation." (emphasis added) The learned Judge further observed that
the impugned Act could be "legitimately characterised as a measure which
affects the press", but its "intention or the proximate effect and
operation" was not such as would take away or abridge the right of freedom
of speech and 187 expression guaranteed in Article 19 (1) (a), therefore, it
could not be held invalid on that ground. The impugned decision of the Wage
Board, however, was held to be ultra vires the Act and contrary to the
principles of natural justice.
It may be observed at this place that the
manner in which the test of direct and indirect effect was applied by N.H.
Bhagwati, J., was not very different from the mode in which Fazal Ali, J.
applied it to punitive detention as punishment after conviction for an offence
under the Indian Penal Code. N.H. Bhagwati, J., did not discard the test
adopted by Kania, C.J., in A.K. Gopalan, in its entirety; he merely extended
the application of the criterion of directness to the operation and effect of
the impugned legislation.
Again, in Sakal Papers (P) Ltd. & Ors. v.
The Union of India(1) this Court, while considering the constitutional validity
of the Newspaper
(Price and Page) Act, 1956 and Daily Newspaper (Price
and Page) Order, 1960, held that the "direct and immediate" effect of
the impugned Order would be to restrain a newspaper from publishing any number
of pages for carrying its news and views, which it has a fundamental right
under Article 19 (1) (a) and, therefore, the Order was violative of the right
of the newspapers guaranteed by Article 19 (1) (a), and as such, invalid. In
this case, also, the emphasis had shifted from the object and subject- matter
of the impugned State action to its direct and immediate effect.
In Naresh Shridhar Mirajkar & Ors. v.
State of Maharashtra & Anr.,(2) an order prohibiting the publication of the
evidence of a witness in a defamation case, passed by a learned Judge
(Tarkunde, J.) of the Bombay High Court, was impugned on the ground that it
violated the petitioners' right to free speech and expression guaranteed by
Article 19 (1) (a). Gajendragadkar, C.J., (Wanchoo, Mudholkar, Sikri and
Ramaswami, JJ., concurring) repelled this contention with these illuminating
observations:
"The argument that the impugned order
affects the fundamental rights of the petitioners under Article 19 (1), is
based on a complete misconception about the true nature and (1) [1962] 3 SCR
842.
(2) [1966] 3 SCR 744.
188 character of judicial process and of
judicial decisions. When a Judge deals with matters brought before him for his
adjudication, he first decides questions of fact on which the parties are at
issue, and then applies the relevant law to the said facts.
Whether the findings of fact recorded by the
Judge are right or wrong, and whether the conclusion of law drawn by him
suffers from any infirmity, can be considered and decided if the party
aggrieved by the decision of the Judge takes the matter up before the appellate
Court. But it is singularly inappropriate to assume that a judicial decision
pronounced by a Judge of competent jurisdiction in or in relation to matter
brought before him for adjudication can affect the fundamental rights of the
citizens under Article 19 (1). What the judicial decision purports to do is to
decide the controversy between the parties brought before the court and nothing
more. If this basic and essential aspect of the judicial process is borne in
mind, it would be plain that the judicial verdict pronounced by court in or in
relation to a matter brought before it for its decision cannot be said to
affect the fundamental rights of citizens under Article 19 (1)." "It
is well-settled that in examining the validity of legislation, it is legitimate
to consider whether the impugned legislation is a legislation directly in
respect of the subject covered by any particular article of the Constitution,
or touches the said article only incidentally or indirectly'.' "If the
test of direct effect and object which is sometimes described as the pith and
substance test, is thus applied in considering the validity of legislation, it
would not be inappropriate to apply the same test to judicial decisions like
the one with which we are concerned in the present proceedings. As we have already
indicated, the impugned order was directly concerned with giving such
protection to the witness as was thought to be necessary in order to obtain
true evidence in the case with a view to do justice between the parties. If,
incidentally, as a result of this-order, the petitioners were not able to
report what they heard in court, that cannot be said to make the impugned order
invalid under Article 19 (1) (a)." 189 We have already mentioned briefly
how the test of directness was developed and reached its culmination in Bank
Nationalization's case and Maneka Gandhi's case.
From the above conspectus, it is clear that
the test of direct and indirect effect was not scrapped. Indeed, there is no
dispute that the test of 'pith and substance' of the subject-matter and of
direct and of incidental effect of legislation is a very useful test to
determine the question of legislative competence i.e., in ascertaining whether
an Act falls under one Entry while incidentally encroaching upon another Entry.
Even for determining the validity of a legislation on the ground of
infringement of fundamental rights, the subject-matter and the object of the
legislation are not altogether irrelevant. For instance, if the subject- matter
of the legilation directly covers any of the fundamental freedoms mentioned in
Article 19 (1), it must pass the test of reasonableness under the relevant head
in clauses (2) to (6) of that Article. If the legislation does not directly
deal with any of the rights in Article 19 (1), that may not conclude the
enquiry. It will have to be ascertained further whether by its direct and
immediate operation, the impugned legislation abridges any of the rights
enumerated in Article 19 (1).
In Bennett Coleman,(1) Mathew, J. in his
dissenting judgment referred with approval to the test as expounded in Express
Newspapers. He further observed that "the 'pith and substance' test,
though not strictly appropriate, must serve a useful purpose in the process of
deciding whether the provisions in question which work some interference with
the freedom of speech, are essentially regulatory in character".
From a survey of the cases noticed above, a
comprehensive test which can be formulated, may be re- stated as under:
Does the impugned law, in its pith and
substance, whatever may be its form and object, deal with any of the
fundamental rights conferred by Article 19 (1)? If it does, does it abridge or
abrogate any of those rights? And even if it does not, in its pith and
substance, deal with any of the fundamental rights conferred by Article 19(1),
is the 190 Direct and inevitable effect of the impugned law such as to abridge
or abrogate any of those rights? The mere fact that the impugned law
incidentally, remotely or collaterally has the effect of abridging or abrogating
those rights, will not satisfy the test. If the answer to the above queries be
in the affirmative, the impugned law in order to be valid, must pass the test
of reasonableness under Article 19. But if the impact of the law on any of the
rights under clause (1) of Article 19 is merely incidental, indirect, remote or
collateral and is dependent upon factors which may or may not come into play,
the anvil of Article 19 will not be available for judging its validity.
Now, let us apply this test to the provisions
of the Penal Code in question. Section 299 defines 'culpable homicide' and
Section 300 defines culpable homicide amounting to murder. Section 302
prescribes death or imprisonment for life as penalty for murder. It cannot,
reasonably or rationally, be contended that any of the rights mentioned in
Article 19(1) of the Constitution confers the freedom to commit murder or, for
the matter of that, the freedom to commit any offence whatsoever.
Therefore, penal laws, that is to say, laws
which define offences and prescribe punishment for the commission of offences
do not attract the application of Article 19(1). We cannot, of course, say that
the object of penal laws is generally such as not to involve any violation of
the rights conferred by Article 19(1) because after the decision of this Court
in the Bank Nationalization case the theory, that the object and form of the
State action alone determine the extent of protection that may be claimed by an
individual and that the effect of the State action on the fundamental right of
the individual is irrelevant, stands discredited.
But the point of the matter is that, in pith
and substance, penal laws do not deal with the subject matter of rights
enshrined in Article 19(1). That again is not enough for the purpose of deciding
upon the applicability of Article 19 because as the test formulated by us above
shows, even if a law does not, in its pith and substance, deal with any of the
fundamental rights conferred by Article 19(1), if the direct and inevitable
effect of the law is such as to abridge or abrogate any of those rights,
Article 19(1) shall have been attracted. It would then become necessary to test
the validity of even a penal law on the touchstone of that Article. On this
latter aspect of the matter, we are of the opinion that the deprivation of
freedom consequent upon an order of conviction and sentence is not a direct 191
and inevitable consequence of the penal law but is merely incidental to the
order of conviction and sentence which may or may not come into play, that is
to say, which may or may not be passed. Considering therefore the test
formulated by us in its dual aspect, we are of the opinion that Section 302 of
the Penal Code does not have to stand the test of Article 19(1) of the
Constitution.
This is particularly true of crimes,
inherently vicious and pernicious, which under the English Common Law were
classified as crimes mala in se as distinguished from crimes mala prohibita
crimes mala in se embrace acts immoral or wrong in themselves, such as, murder,
rape, arson, burglary, larceny (robbery and dacoity); while crimes mala
prohibita embrace things prohibited by statute as infringing on others' rights,
though no moral turpitude attaches to such crimes. Such acts constitute crimes
only because they are so prohibited. (See Words and Phrases, Permanent Edition,
Vol.
10). While crimes mala in se do not per se,
or in operation directly and inevitably impinge on the rights under Article
19(1), cases under the other category of crimes are conceivable where the law
relating to them directly restricts or abridges such rights. The illustration
given by Shri Sorabji will make the point clear. Suppose, a law is enacted
which provides that it shall be an offence to level any criticism, whatever, of
the Government established by law and makes a further provision prescribing
five years' imprisonment as punishment for such an offence. Such a law (i.e.
its provision defining the offence) will directly and inevitably impinge upon
the right guaranteed under clause (a) of Article 19(1). Therefore, to be valid,
it must pass the test of reasonableness embodied in clause (2) of the Article.
But this cannot be said in regard to the provisions of the Penal Code with
which we are concerned.
Assuming arguendo, that the provisions of the
Penal Code, particularly those providing death penalty as an alternative
punishment for murder, have to satisfy the requirements of reasonableness and
public interest under Article 19 the golden strand of which according to the
ratios of Maneka Gandhi runs through the basic structure of Article 21 also the
further questions to be determined, in this connection, will be: On whom will
the onus of satisfying the requirements under Article 19, lie ? Will such onus
lie on the State or the person challenging its validity ? And what will be the
nature of the onus? 192 With regard to onus, no hard and fast rule of universal
application in all situations, can be deducted from the decided cases. In some
decisions, such as, Saghir Ahmad v. State of Uttar Pradesh(1) and Khyerbari Tea
Co. v. State of Assam & Ors. (2) it was laid down by this Court that if the
writ petitioner succeeds in showing that the impugned law ex facie abridges or
transgresses the rights coming under any of the sub-clauses of clause (1) of Article
19, the onus shifts on the respondent state to show that the legislation comes
within the permissible limits imposed by any of the clauses (2) to (6) as may
be applicable to the case, and, also to place material before the court in
support of that contention. If the State does nothing in that respect, it is
not for the petitioner to prove negatively that it is not covered by any of the
permissive clauses.
A contrary trend, however, is discernible in
the recent decisions of this Court, which start with the initial presumption in
favour of the constitutionality of the statute and throw the burden of
rebutting that presumption on the party who challenges its constitutionality on
the ground of Art. 19.
In B. Banerjee v. Anita Pan (3) this Court,
speaking through V.R. Krishna Iyer, J., reiterated the ratio of Ram Krishna
Dalmia's case,(4) that :
"there is always a presumption in favour
of the constitutionality of an enactment and the burden is upon him who attack
it to show that there has been a clear transgression of the constitutional
principles";
and "that it must be presumed that the
legislature understands and correctly appreciates the need of its own people,
that its laws are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds." It was emphasised that
"Judges act not by hunch but on hard facts properly brought on record and
sufficiently strong to rebuff the 193 initial presumption of constitutionality
of legislation. Nor is the Court a third Chamber of the House to weigh whether
it should draft the clause differently". Referring, inter alia, to the
decision of this Court in R.M.D. Chamarbaugwala (ibid), and Seervai's
'Constitutional Law of India', Vol. I, page 54, it was recalled, "Some
courts have gone to the extent of holding that there is a presumption in favour
of constitutionality, and a law will not be declared unconstitutional unless
the case is so clear as to be free from doubt; and to doubt the
constitutionality of a law is to resolve it in favour of its validity".
Similar view was taken by a Bench of seven learned Judges of this Court in
Pathumma v. State of Kerala.(1) Behind the view that there is a presumption of
constitutionality of a statute and the onus to rebut the same lies on those who
challenge the legislation, is the rationale of judicial restraint, a
recognition of the limits of judicial review; a respect for the boundaries of
legislative and judicial functions, and the judicial responsibility to guard
the trespass from one side or the other. The primary function of the courts is
to interpret and apply the laws according to the will of those who made them
and not to transgress into the legislative domain of policy-making. "The
job of a Judge is judging and not law- making". In Lord Devlin's words :
"Judges are the keepers of the law and the keepers of these boundaries
cannot, also, be among out-riders." A similar warning was echoed by the
Supreme Court of the United States in Dennis v. United States(2) in these terms
:
"Courts are not representative bodies.
They are not designed to be a good reflex of a democratic society. Their
judgment is best informed, and therefore most dependable, within narrow limits.
Their essential quality is detachment, founded on independence. History teaches
that the independence of the judiciary is jeopardized when courts become
embroiled in the passions of the day and assume primary responsibility in
choosing between competing political, economic and social pressures." 194
In Gregg v. Georgia,(1) one of the principal questions for consideration was,
whether capital punishment provided in a statute for certain crimes was a
"cruel and unusual" punishment. In that context, the nature of the
burden which rests on those who attack the constitutionality of the statute was
explained by Stewart, J., thus :
"We may not require the legislature to
select the least severe penalty possible so long as the penalty selected is not
cruelly inhumane or disproportionate to the crime involved. And a heavy burden
rests on those who would attack the judgment of the representatives of the
people. This is true in part because the constitutional test is intertwined
with an assessment of contemporary standards and the legislative judgment
weighs heavily in ascertaining such standards. In a democratic society
legislatures, not courts, are constituted to respond to the will and conse
quently the moral values of the people." Even where the burden is on the
State to show that the restriction imposed by the impugned statute is reasonable
and in public interest, the extent and the manner of discharge of the burden
necessarily depends on the subject- matter of the legislation, the nature of
the inquiry, and the scope and limits of judicial review. (See the observations
of Sastri. J. in State of Madras v. V.C. Rao,(2) reiterated in Jagmohan).
In the instant case, the State has discharged
its burden primarily by producing for the persual of the Court, the 35th Report
of the Law Commission, 1967, and the judgments of this Court in Jagmohan Singh
and in several subsequent cases, in which it has been recognised that death
penalty serves as a deterrent. It is, therefore, for the petitioners to prove
and establish that the death sentence for murder is so outmoded, unusual or
excessive as to be devoid of any rational nexus with the purpose and object of
the legislation.
The Law Commission of India, after making an
intensive and extensive study of the subject of death penalty in India,
published 195 and submitted its 35th Report in 1967 to the Government.
After examining, a wealth of evidential
material and considering the arguments for and against its retention, that
high-powered Body summed up its conclusions at page 354 of its Report, as
follows :
"The issue of abolition or retention has
to be decided on a balancing of the various arguments for and against
retention. No single argument for abolition or retention can decide the issue.
In arriving at any conclusion on the subject, the need for protecting society
in general and individual human beings must be borne in mind.
It is difficult to rule out the validity of,
of the strength behind, many of the arguments for abolition nor does, the
Commission treat lightly the argument based on the irrevocability of the
sentence of death, the need for a modern approach, the severity of capital
punishment and the strong feeling shown by certain sections of public opinion
in stressing deeper questions of human values.
Having regard, however, to the conditions in
India, to the variety of the social up-bringing of its inhabitants, to the
disparity in the level of morality and education in the country, to the
vastness of its area, to diversity of its population and to the paramount need
for maintaining law and order in the country at the present juncture, India
cannot risk the experiment of abolition of capital punishment." This
Report was also, considered by the Constitution Bench of this Court in
Jagmohan. It was the main piece of evidence on the basis of which the challenge
to the constitutional validity of Section 302 of the Penal Code, on the ground
of its being violative of Article 19, was repelled. Parliament must be presumed
to have considered these views of the Law Commission and the judgment of this
Court in Jagmohan, and must also have been aware of the principles crystallised
by judicial precedents in the matter of sentencing when it took up revision of
the Code of Criminal Procedure in 1973, and inserted in it, Section 354(3)
which indicates that death penalty can be awarded in exceptional cases for
murder and for some other offences under the Penal Code for special reasons to
be recorded.
Death penalty has been the subject of an
age-old debate between Abolitionists and Retentionists, although recently the
196 controversy has come in sharp focus. Both the groups are deeply anchored in
their antagonistic views. Both firmly and sincerly believe in the rightcousness
of their respective stands, with overtones of sentiment and emotion. Both the
camps can claim among them eminent thinkers, penologists, sociologists,
jurists; judges, legislators, administrators and law enforcement officials.
The chief arguments of the Abolitionists,
which have been substantially adopted by the learned counsel for the
petitioners, are as under :
(a) The death penalty is irreversible.
Decided upon according to fallible processes of law by fallible human beings,
it can be-and actually has been- inflicted upon people innocent of any crime.
(b) There is no convincing evidence to show
that death penalty serves any penological purpose :
(i) Its deterrent effect remains unproven. It
has not been shown that incidence of murder has increased in countries where
death penalty has been abolished, after its abolition.
(ii) Retribution in the sense of vengeance,
is no longer an acceptable end of punishment.
(iii)On the contrary, reformation of the
criminal and his rehabilitation is the primary purpose of punishment.
Imposition of death penalty nullifies that purpose.
(c) Execution by whatever means and for
whatever offence is a cruel, inhuman and degrading punishment.
It is proposed to deal with these arguments,
as far as possible, in their serial order.
Regarding (a) : It is true that death penalty
is irrevocable and a few instances, can be cited, including some from England,
of persons who after their conviction and execution for murder, were discovered
to be innocent. But this, according to the Retentionists is not a reason for
abolition of the death penalty, but an argument for reform of the judicial
system and the sentencing procedure. Theore- 197 tically, such errors of
judgment cannot be absolutely eliminated from any system of justice, devised
and worked by human beings, but their incidence can be infinitesimally reduced
by providing adequate safeguards and checks. We will presently see, while
dealing with the procedural aspect of the problem, that in India, ample
safeguards have been provided by law and the Constitution which almost
eliminate the chances of an innocent person being convicted and executed for a
capital offence.
Regarding (b): Whether death penalty serves
any penological purpose.
Firstly, in most of the countries in the
world, including India, a very large segment of the population, including
notable penologists judges, jurists, legislators and other enlightened people
still believe that death penalty for murder and certain other capital offences
does serve as a deterrent, and a greater deterrent than life imprisonment. We
will set out very briefly, by way of sample, opinions of some of these
distinguished persons.
In the first place, we will notice a few
decisions of Courts wherein the deterrent value of death penalty has been
judicially recognised.
In Paras Ram v. State of Punjab,(1) the facts
were that Paras Ram, who was a fanatic devotee of the Devi, used to hold
Satsangs at which bhajans were sung in praise of the Goddess. Paras Ram
ceremonially beheaded his four year old boy at the crescendo of the morning
bhajan. He was tried, convicted and sentenced to death for the murder. His
death sentence was confirmed by the High Court. He filed a petition for grant
of special leave to appeal to this Court under Article 136 of the Constitution.
It was contended on behalf of Paras Ram that the very monstrosity of the crime
provided proof of his insanity sufficient to exculpate the offender under
Section 84, Indian Penal Code, or material for mitigation of the sentence of
death. V. R. Krishna Iyer, J., speaking for the Bench, to which one of us
(Sarkaria, J.) was a party, refused to grant special leave and summarily dismissed
the petition with these observations :
198 "The poignantly pathological grip of
macabre superstitions on some crude Indian minds in the shape of desire to do
human and animal sacrifice, in defiance of the scientific ethos of our cultural
heritage and the scientific impact of our technological century, shows up in
crimes of primitive horror such as the one we are dealing with now, where a
blood-curdling butehery of one's own beloved son was perpetrated, aided by
other 'pious' criminals, to propitiate some blood-thirsty diety. Secular India,
speaking through the Court, must administer shock therepy to such anti- social
'piety' when the manifestation is in terms of inhuman and criminal violence.
When the disease is social, deterrence through court sentence must, perforce,
operate through the individual culprit coming up before court. Social justice
has many facets and Judges have a sensitive, secular and civilising role in
suppressing grievous injustice to humanist values by inflicting condign
punishment on dangerous deviants." (emphasis added) In Jagmohan, also,
this Court took due note of the fact that for certain types of murders, death
penalty alone is considered an adequate deterrent:
"A large number of murders is
undoubtedly of the common type. But some at least are diabolical in conception
and cruel in execution. In some others where the victim is a person of high
standing in the country society is liable to be rocked to its very foundation.
Such murders cannot simply be wished away by
finding alibis in the social maladjustment of the murderer.
Prevalence of such crimes speaks, in the
opinion of many, for the inevitability of death penalty not only by way of
deterrence but as a token of emphatic disapproval of the society."
Examining whether life imprisonment was an adequate substitute for death
penalty, the Court observed:
"In the context of our criminal law
which punishes murder, one cannot ignore the fact that life imprisonment works
out in most cases to a dozen years of punishment, and it may be seriously
questioned whether that sole alter- 199 native will be an adequate substitute
for the death penalty." In Ediga Anamma v. State of Andhra Pradesh,(1)
V.R. Krishna Iyer, J., speaking for the Bench to which one of us (Sarkaria,
J.,) was a party, observed that "deterrence through threat of death may
still be a promising strategy in some frightful areas of murderous crime."
It was further observed that "horrendous features of the crime and the
hapless and helpness state of the victim steel the heart of law for the sterner
sentence." In Shiv Mohan Singh v. State (Delhi Administration),(2) the
same learned Judge, speaking for the Court, reiterated the deterrent effect of
death penalty by referring to his earlier judgment in Ediga Annamma's case, as
follows:
"In Ediga Annamma this Court, while
noticing the social and personel circumstances possessing an extenuating
impact, has equally clearly highlighted that in India under present conditions
deterrence through death penalty may not be a time-barred punishment in some
frightful areas of barbarous murder." Again, in Charles Sobraj v. The
Superintendent, Central Jail, Tihar, New Delhi,(3) the same learned Judge,
speaking for a Bench of three learned Judges of this Court, reiterated that
deterrence was one of the vital considerations of punishment.
In Trop v. Dulleh,(4) Brennan, J. of the
supreme Court of the United States, concurring with the majority, emphasised
the deterrent end of punishment, in these words:
"Rehabilitation is but one of the
several purposes of the penal law. Among other purposes are deterrents of the
wrongful act by the threat of punishment and insulation of society from
dangerous individuals by imprisonment or execution." 200 In Furman v.
Georgia, Stewart, J. took the view that death penalty serves a deterrent as
well as retributive purpose. In his view, certain criminal conduct is so
atrocious that society's interest in deterrence and retribution wholly
outweighs any considerations of reform or rehablitation of the perpetrator, and
that, despite the inconclusive empirical evidence, only penalty of death will
provide maximum deterrence.
Speaking for the majority, in Gregg v.
Georgia, Stewart, J. reiterated his views with regard to the deterrent and
retributive effect of death penalty.
Now, we may notice by way of specimen, the
views of some jurists and scholars of note. Sir James Fitzjames Stephen, the
great jurist, who was concerned with the drafting of the Indian Penal Code,
also, was a strong exponent of the view that capital punishment has the
greatest value as a deterrent for murder and other capital offence. To quote
his words:
"No other punishment deters men so
effectually from committing crimes as the punishment of death. This is one of
those propositions which it is difficult to prove, simply because they are in
themselves more obvious than any proof can make them. It is possible to display
ingenuity in arguing against it, but that is all. The whole experience of
mankind is in the other direction. The threat of instant death is the one to
which resort has always been made when there was an absolute necessity for
producing some result. No one goes to certain inevitable death except by
compulsion.
Put the matter the other the way. Was there
ever yet a criminal who, when sentenced to death and brought out to die, would
refuse to offer of commutation of his sentence for the severest secondary
punishment? Surely not. Why is this ? It can only be because 'All that a man
has will he give for his life'. In any secondary punishment, however terrible,
there is hope; but death is death; its terrors cannot be described more
forcibly." Even Marchese De Cesare Bonesana Beccaria, who can be called
the father of the modern Abolitionist movement, concedes in his treatise,
"Dei Delitti a della Pana" (1764), that capital punishment would be
justified in two instances:
Firstly, in an execution 201 would prevent a
revolution against popularly established Government; and, secondly, if an
execution was the only way to deter others from committing a crime. The
adoption of double standards for capital punishment in the realm of conscience
is considered by some scholars as the biggest infirmity in the Abolitionists'
case.
Thorsten Sallin is one of the penologists who
has made a scientific study of the subject of capital punishment and complied
the views of various scholars of the 19th and 20th centuries. In his book
"Capital Punishment", he has made an attempt to assemble the
arguments for and against the death penalty. He has also given extracts from
the Debates in the British House of Commons in 1956 and, also, in March and
April 1966, in the Candian House of Commons. In the last part of his book, the
learned Editor summarises his ideas about capital punishment. In his opinion,
Retribution seems to be outdated and unworkable. It is neither efficient nor
equitably administered. "Justice is a relative concept that changes with
the times". A retributive philosophy alone is not now socially acceptable.
"In the last analysis, the only utilitarian argument that has being to be
given attention is the one that defends capital punishment as a uniquely
powerful means of protecting the community." He ends his book with the
observation : "I have attempted to show that, as now used, capital
punishment performs none of the utilitarian functions claimed by its
supporters, nor can it ever be made to serve such functions. It is an archaic
custom of primitive origin that has disappeared in most civilized countries and
is withering away in the rest." In his article appearing in
"Criminology Review Year Book" (1979) Vol. 1, complied by Sheldon L.
Messinger & Egon Bittner(1), Isaac Ehrlich, after surveying the past
literature on the relation between capital punishment and capital crimes, has
(at pp. 31-33) pointed out the following shortcomings in the thesis of Sellin :
"The principal shortcoming of the work
by Sellin and others using his methodology is that the approach taken and the
methods applied do not permit a systematic examination of the main implications
emanating from the general theory of deterrence. The shortcoming is basic,
because the implications following from the general deterrence 202 hypothesis
are what Sellin was challenging. Yet his work neither develops nor tests the
full range of implications following from the theory he attempts to reject; nor
does he develop or test a competing theory.
In addition, to my knowledge, Sellin never
reported in any of his studies the results of any systematic (parametric or
non-parametric) statistical tests that could justify his strong and unqualified
inferences." ... ... ...
"Another fundamental shortcoming of
Sellin's studies is their failure to account systematically for other factors
that are expected by the deterrence hypothesis to affect the frequency of
murder in the population, apart from the relevant risk of execution.
These are variables such as the probability
of apprehension, the conditional probability of conviction given apprehension,
the severity of alternative punishments for murder, the distribution of income,
the probability of unemployment, and other indicators of differential gains
from criminal activities occurring jointly with murder. Since, as I shall argue
later, some of these variables are expected to be highly correlated with the
conditional probability of execution given conviction of murder, their
exclusion from the statistical analysis can seriously bias estimates of the
partial deterrent effect of capital punishment. Aware of the problem, Sellin
attempted to compare states that are as alike as possible in all other
respects. However, his "matching procedure", based on the assumption
that neighbouring states can satisfy such pre-requisites without any explicit
standardization, is simply insufficient for any valid inferences. Pairs of
states, such as New York, and Rhode Island, Massachusetts and Maine, or
Illinois and Wisconsin all included in his comparisons, differ in their
economic and demographic characteristics, in their law enforcement activities,
and in the opportunities they provide for the commission of other crimes.
Moreover, the direction of the causal relationship between the murder rate and
the overall risk of punishment-be it the death penalty or any other sanction -
is not self-evident because, for example, states with high murder rates are
expected to and, in fact do devote more 203 resources to apprehend, convict and
execute offenders than do states with lower rates. Specifically, variations in
the legal or practical status of the death penalty occasionally may be the
result of, rather than the cause for, changes in the murder rate, and thus may
give rise to an apparent positive association between these two variables. The
same general point applies in connection with the identification of the effect
of any other variable which is a product of law enforcement activity or private
protection against crime. For these reasons, the true deterrent effect of a
sanction such as the death penalty cannot be readily inferred from simple
comparisons of the sort performed by Sellin." The learned author then (at
page 33) arrives at this conclusion :
"If investigations indicate that
probability and length of imprisonment do impart significant deterrent effects,
then failure of the research to demonstrate specifically the deterrent efficacy
of capital punishment may be taken more as evidence for shortcomings in the
research design and methodology or in the measures of the theoretically
relevant variables used than as a reflection on the validity of the deterrence
theory itself." The scholar then stresses another purpose of capital
punishment, namely, incapacitation of the offender, which, in fact, is another
aspect of its deterrent effect. To quote his words :
"There is an additional point worth
stressing.
Even if punishment by execution or
imprisonment does not have any deterrent effect, surely it must exert some
incapacitative effect on punished offenders by reducing or eliminating the
possibility of recidivism on their part." This eminent social scientist,
Prof. Ehrlich(1) whose views we have extracted, has made intensive studies of
the deterrent effect of capital punishment. Then, a result of his study was
also published 204 in the American Economic Review in June, 1975. He includes a
specific test for the presence of a deterrent effect of capital punishment to
the results of earlier studies. He has in his study(1) claimed to identify a
significant reduction in the murder rate due to the use of capital punishment.
A version of his detailed study is said to have been filed with the United
States Supreme Court on March 7, 1975 in the case of Fowler v. North
Carolina.(2) In 1975, Robert Martinson, a sociologist, published the results of
a study he had made in New York regarding the rehabilitation of prisoners.
Among the conclusions he drew: "The prison which makes every effort at
rehabilitation succeeds no better than the prison which leaves its inmates to
rot....The certainty of punishment rather than the severity, is the most
effective crime deterrent. We should make plain that prisons exist to punish people
for crimes committed." (Quoted in Encyclopaedia Britannica 1978 Book of
the Year, pp. 593-594) Many judges-especially in Britain and the United States,
where rising crime rates are the source of much public concern-have expressed
grave doubts about the wisdom of the view that reform ought to take priority in
dealing with offenders. "They have argued that the courts must reflect a
public abhorrence of crime and that justice demands that some attempt be made
to impose punishment fitting to the crime." (Encyclopaedia Britannica,
ibid.) Professor Jean Graven, Judge of the Court of Appeal of Geneva, and a
distinguished jurist, maintains in his learned analysis, (see the Postscript in
reply to A World View of Capital Punishment by James Avery Joyce), of the views
of Camus and Koestler, that neither of these two authors has faced up to the
really basic objection to the abolitionist's case. According to Graven, there
are two groups of people, which are not covered by the abolitionist's case and
Camus and Koestler have therefore left their cause open to attack at its
_______________________ (1) See Lee S. Friedman's article at pages 61-87,
Review Year Book, 1979, compiled by Messinger and Bittner.
(2) 428 US 904=49 L. Ed. 1212 (1976).
205 weakest point. "The true problem",
as Graven sees it, "is the protection of the organized, civilized
community", the legitimate defence of society against criminal attacks
made upon it by those anti-social elements which can be stopped only by being
eliminated, in the "last resort". "For such, the death penalty
should be preserved, and only for such".
Professors Graven's second challenge is,
which the abolitionist must accept, the existing division between civil and
military protection. According to him, in doing so, the abolitionist cannot
avoid applying double standard and two mutually destructive criteria to their
approach to the death penalty. "For if the death penalty is accepted as
protective in principle to society, then it should be so in all cases and in
all circumstances in troubled times as well as in peaceful times, in respect of
the traitor, the spy, the deserter, or the hostage, as well as of the brigand,
the "gangster", or the professional killer. We must be logical and
just at the same time. In the realm of conscience and of 'principles', there
cannot be two weights and measures.
There cannot be a morality for difficult
times and another morality for easy times; one standard for military justice
and another for civil justice. What then should be done with those individuals
who have always been considered proper subjects for elimination? If the capital
sentence is objectionable and illegal...If the death penalty must be absolutely
repudiated because it 'degrades man, (quoting Camus) then we accept the
position. But, in that case, no right to kill exists any longer...the greatest
war criminals, those responsible conscious of what they have done and intended
to do-for the worst crimes of genocide, who gassed, incinerated in ovens or
buried in quicklime a million innocent victims, or allowed them to perish in
mines and marshes...Society has not the right then to kill even these
"Monsters".
(Quoted in A World View of Capital
Punishment, by James Avery Joyce).
J.J. Maclean, a Parliamentarian, articulated
his views with regard to the deterrent, value of capital punishment in the
Canadian House of Commons in the March-April, Debates 1966, as follows:
"Whether it (capital punishment) is a
greater or lesser deterrent than life imprisonment. This is an argument that
cannot be proven on either side but I would not like to 206 have to try to
convince any one that capital punishment is not a deterrent. Statistically this
cannot be proven because the deterrent effect on both capital punishment and
life imprisonment is obscured by the fact that most criminals plan a crime on
the basis that they are going to avoid any penalty...I say, the deterrent value
is with respect to people who did not commit crimes, who were deterred from
becoming murderers by the fact that capital punishment or some other heavy
penalty would be meted outto them if caught." (Quoted in Sellin's Capital
Punishment).
The Law Commission of India in its 35th
Report, after carefully sifting all the materials collected by them, recorded
their views regarding the deterrent effect of capital punishment as follows:
"In our view capital punishment does act
as a deterrent. We have already discussed in detail several aspects of this
topic. We state below, very briefly, the main points that have weighed with us
in arriving at this conclusion:
(a) Basically, every human being dreads
death.
(b) Death, as a penalty, stands on a totally
different level from imprisonment for life or any otber punishment. The
difference is one of quality, and not merely of degree.
(c) Those who are specifically qualified to
express an opinion on the subject, including particularly the majority of the
replies received from State Governments, Judges, Members of Parliament and
Legislatures and Members of the Bar and police officers-are definitely of the
view that the deterrent object of capital punishment is achieved in a fair
measure in India.
(d) As to conduct of prisoners released from
jail (after undergoing imprisonment for life), it would be difficult to come to
a conclusion, without studies extending over a long period of years.
207 (e) Whether any other punishment can
possess all the advantages of capital punishment is a matter of doubt.
(f) Statisties of other countries are
inconclusive on the subject. If they are not regarded as proving the deterrent
effect; neither can they be regarded as conclusively disproving it." Views
of the British Royal Commission:
The British Royal Commission, after making an
exhaustive study of the issue of capital punishment and its deterrent value, in
their Report (1949-53), concluded:
"The general conclusion which we reach,
after careful review of all the evidence we have been able to obtain as to the
deterrent effect of capital punishment, may be stated as follows. Prima facie
the penalty of death is likely to have a stronger effect as a deterrent to
normal human beings than any other form of punishment, and there is some
evidence (though no convincing statistical evidence) that this is in fact so.
But this effect does not operate universally or uniformly, and there are many
offenders on whom it is limited and may often be negligible." We may add
that whether or not death penalty in actual practice acts as a deterrent,
cannot be statistically proved, either way, because statistics as to how many
potentisim murderers were deterred from committing murders, but for the
existence of capital punishment for murder, are difficult, if not altogether
impossible, to collect. Such statistics of deterred potential murderers are
difficult to unravel as they remain hidden in the innermost recesses of their
mind.
Retribution in the sense of reprobation
whether a totally rejected concept of punishment.
Even retribution in the sense of society's
reprobation for the worst of crimes, i.e., murder, is not an altogether
outmoded concept. This view is held by many distinguished sociologist, jurists
and judges.
Lord Justice Denning, Master of the Rolls of
the Court of 208 Appeal in England, appearing before the British Royal
Commission on Capital Punishment, stated his views on this point as under:
"Punishment is the way in which society
expresses its denunciation of wrong-doing, and, in order to maintain respect
for law, it is essential that the punishment inflicted for grave crimes should
adequately reflect the revulsion felt by the great majority of citizens for
them. It is a mistake to consider the objects of punishment as being deterrent
or reformative or preventive and nothing else...The truth is that some crimes
are so outrageous that society insists on adequate punishment, because the
wrong-doer deserves it, irrespective of whether it is a deterrent or not."
That retribution is still socially acceptable function of punishment, was also
the view expressed by Stewart, J., in Furman v. Georgia, at page 389, as
follows:
"...I would say only that I cannot agree
that retribution is a constitutionally impermissible ingredient in the
imposition of punishment. The instinct for retribution is part of the nature of
man, and channeling that instant, in the administration of criminal justice serves
an important purpose in promoting the stability of a society governed by law.
When people begin to believe that organized
society is unwilling or unable to impose upon criminal offenders the punishment
they 'deserve', then there are sown the seeds of anarchy of self help, vigilant
justice, and lynch law." Patrick Devlin, the eminent jurist and judge, in
his book, "The Judge", emphasises the retributive aspect of the
purpose of punishment and criminal justice, thus:
"I affirm that justice means retribution
and nothing else. Vindictiveness is the emotional outflow of retribution and
justice has no concern with that.
But it is concerned with the measurement of
deserts.
The point was put lucidly and simply by the
Vicar of Longton in a letter to The Times, from which with his permission I
quote: Firstly, far from pretending that retribution should have no place in
our penal system, Mr. Levin should recognize that it is 209 logically
impossible to remove it. If it were removed, all punishments should be rendered
unjust. What could be more immoral than to inflict imprisonment on a criminal
for the sake of deterring others, if he does not deserve it? Or would it be
justified to subject him to a compulsory attempt to reform which includes a
denial of liberty unless, again he deserves it?.
Retribution and deterrence are not two
divergent ends of capital punishment. They are convergent goals which
ultimately merge into one. How these ends of punishment coalesce into one was
described by the Law Commission of India, thus:
"The retributive object of capital
punishment has been the subject-matter of sharp attack at the hands of the
abolitionists. We appreciate that many persons would regard the instinct of
revenge as barbarous. How far it should form part of the penal philosophy in
modern times will always remain a matter of controversy. No useful purpose will
be served by a discussion as to whether the instinct of retribution is or is
not commendable. The fact remains, however, that whenever there is a serious crime,
the society feels a sense of disapprobation. If there is any element of
retribution in the law, as administered now, it is not the instinct of the man
of jungle but rather a refined evolution of that instinct the feeling prevails
in the public is a fact of which notice is to be taken. The law does not
encourage it, or exploit it for any undesirable ends. Rather, by reserving the
death penalty for murder, and thus visiting this gravest crime with the gravest
punishment, the law helps the element of retribution merge into the element of
deterrence." [Para 265 (18), 35th Report] Earlier in 1949-1953, the
British Royal Commission in Para 59 of its Report spoke in a somewhat similar
strain:
"We think it is reasonable to suppose
that the deterrent force of capital punishment operates not only by affecting
the conscious thoughts of individuals tempted to commit murder, but also by
building up in the community, over a 210 long period of time, a deep feeling of
peculiar abhorrence for the crime of murder. The fact that men are hung for
murder is one great reason why murder is considered so dreadful a crime. This
widely diffused effect on the moral consciousness of society is impossible to
assess, but it must be at least as important as any direct part which the death
penalty may play as a deterrent in the calculations of potential
murderers." According to Dr. Ernest Van Den Haag, a New York psychologist
and author, and a leading proponent of death penalty, "a very strong
symbolic value" attaches to executions. "The motives for the death
penalty may indeed include vengeance. Legal vengeance solidifies social
solidarity against law-breakers and probably is the only alternative to the
disruptive private revenge of those who feel harmed." (See The Voice (USA)
June 4, 1979) The views of Lloyd George, who was the Prime Minister of England
during the First World War, have been referred to in the book "Capital
Punishment" (1967) by Thorsten Sellin at page 65, as below:
"The first function of capital
punishment is to give emphatic expression to society's peculiar abhorrence of
murder....It is important that murder should be regarded with peculiar
horror...I believe that capital punishment does, in the present state of
society, both express and sustain the sense of moral revulsion for
murder." This view is not without respectable support in the
jurisprudential literature of today, despite an opinion to the contrary. (See
also the Royal Commission's Report, 1949- 53). In relying, inter alia, upon the
evidence before it, including that of Lord Denning, the Royal Commission
recognised a strong and widespread demand for retribution.
It is a common phenomenon in all the
civilized countries that some murders are so shockingly offensive that there is
a general outcry from the public for infliction of the ultimate penalty on the
criminal.
In regard to the retributive aspect of
capital punishment, we may cite one recent illustration showing how demand for
retribution, in the sense of society's instinctive disapproval of the outrageous
conduct of the murderer is indelibly ingrained in contemporary public opinion
even in advanced countries.
In November 1978, George Moscone (Mayor) and
Harvey Milk (Supervising Officer) of San Francisco were cruelly, assassinated
by Dan White, a police-man. Six months later, on May 22, 1979, a jury of seven
men and five women rejected the charge of first-degree murder, and in
consequence, did not award capital punishment to Dan White for this heinous
double murder. Public opinion reacted sharply. Public protest against this
decision spontaneously manifested itself in a burst of flame and fury.
Thousands of outraged demonstrators rampaged through the Civic Centre, smashing
windows, burning police cars, chanting: "We want justice" Writing in 'The
Voice', a local paper from San Franscisco, in its issue of June 4, 1979,
Lawrence Mullen, fired at the jury a volley of questions, to which the agitated
public would demand answers:
"What comment did the jury make on the
value of life? Was the tragedy of the execution-style murders the central
issue, or was the jury only concerned with technicalities, absurdities and
loopholes of the law? Was justice considered not revenge but justice? High
irony, Dan White's strong belief in capital punishment has found thousands of
new converts. From now on, a lot of people will die because Dan White lives.
Are we so insensitive, callous and inhuman that we accept or excuse violence
and brutality? Consider White's defence lawyer, Douglas Schmidt's reference to
that tragic Monday in November: "It was a tragedy. Now it's behind
us." "For those who loved and still miss George Moscone and Harvey
Milk, for those who were cast into darkness and cried for justice, for those
who still seek answers, the lawyer's words are a chilling reminder that we must
not forget-that we must not 'put it behind us'." The former cop, a law and
order and capital punishment advocate driven by his passion, by his lack of
reason, to destroy those who he disagreed with, and by doing so 212
demonstrated the greatest human failure-the inability to co-exist.
"Dan White symbolizes the violence and
brutality that is undermining civilization." Dan White's case and the
spontaneous reaction of the public opinion that followed, show that opposition
to capital punishment has (to use the words of Raspberry),"(1) much more
appeal when the discussion is merely academic than when the community is
confronted with a crime, or a series of crimes, so gross, so heinous, so
cold-blooded that anything short of death seems an inadequate response".
The Editor of 'Capital Punishment', Thorsten
Sellin has noted at page 83 of his compilation, the following views of an
outstanding Justice of the Ontario Appeal Court:
"The irrevocable character of the death
penalty is a reason why all possible measures should be taken against
injustice-not for its abolition. Now a days, with the advent of armed criminals
and the substantial increase in armed robberies, criminals of long standing if
arrested, must expect long sentences. However, if they run no risk of hanging,
when found guilty of murder, they will kill police men and witnesses with the
prospect of a future no more unhappy, as one of them put it, than being fed,
lodged, and clothed for the rest of their lives. In addition, once in prison, such
people who are capable of anything could kill their guards and their fellow
inmates with relative impunity." J.J. Maclean, the Canadian
Parliamentarian justifies, from another angle, the right of the State to award
capital punishment for murder:
"If the State has the right and the duty
to defend the community against outside aggression, such as in time of war, and
within the country, for instance, in case of treason ______________ (1)
Raspberry, Death Sentence, the Washington Post, March 12, 1976, p, 27 cols.
5-6.
213 crimes against the State, etc., and that
to the extent of taking the life of the aggressors and guilty parties, if the
citizen wants to protect his own life by killing whoever attacks him without
any reason, the State can do the same when a criminal attacks and endangers the
life of the community by deciding to eliminate summarily another human being.
Capital punishment must be retained to prove the sanctity of that most precious
thing which is the gift of life; it embodies the revulsion and horror that we
feel for the greatest of crimes...For most people, life is priceless and they
will do anything and suffer the worst privations to preserve it, even when life
itself does not hold many consolations or bright prospects for the future. As a
deterrent, the death penalty is playing its part for which there is no
substitute...I suggest that statistics do not prove much, either on one side or
the other.... There are too many variations, too many changes as regards
circumstances, condition between one period and the other, to enable us to make
worthy comparisons." (See page 84 of Sellin's Capital Punishment).
Some penologists justify capital penalty and
life imprisonment on the 'isolation' or 'elimination' theory of crime and
punishment. Vernon Rich in his "Law & the administration of
justice" (Second Edition, at page 10), says:
"The isolation theory of crime and
punishment is that the criminal law is a device for identifying persons
dangerous to society who are then punished by being isolated from society as a
whole, so that they cannot commit other antisocial acts. The isolation theory
is used to justify the death penalty and long- term imprisonment. Obviously,
this theory is effective in preventing criminal acts by those executed or
permanently incarcerated." While the Abolitionists look upon death penalty
as something which is per se immoral and inhuman, the Retentionists apprehened
that if we surrender even the risk of the last remaining horrifying deterrent
by which to frighten the toughts of the underworld, we may 214 easily tip the
scales in favour of the anti-social hoodlums.
They fear that abolition of capital
punishment, will result in increase of murders motivated by greed, and in
affable "crime passionelle." "It is feared", wrote George
A. Floris,(1) "the most devastating effects of the abolition will,
however, show themselves in the realm of political murder. An adherent of
political extremism is usually convinced that the victory of his cause is just
round the corner. So, for him long term imprisonment holds no fear. He is
confident that the coming ascendency of his friends will soon liberate
him." To prove this proposition, Floris cites the instance of Von Paper's
Government who in September 1932, reprieved the death sentence passed on two of
Hitler's storm-troopers for brutal killing of one of their political opponents.
The Retentionists believe that the dismantling of the gallows will almost
everywhere enhance the hit and run attacks on political opponents. On this
premise, they argue that capital punishment is the most formidable safeguard
against terrorism.
The argument cannot be rejected out of hand.
A number of instances can be cited where abolitionist States feeling the
inadequacy of their penological armour to combat politically motivated
gangsterism, have retrieved and used their capital weapon which they had once
thrown away.
Despite their traditional abhorrence of death
penalty, the Norwegians executed Major Vedkun Quisling after World War II. The
Belgians, too, executed no less than 242 collaborators' and traitors after the
liberation, although in their country, the death penalty was otiose since 1880.
In England, death penalty was retained for
high treason in the Silverman Bill of 1956. Even at present, for that offence,
death penalty is a valid sanction in England. In the aftermath of assassination
of Prime Minister Bandernaike in 1959, Ceylon hurriedly reintroduced capital
punishment for murder. Owing to similar considerations, Israel sanctioned death
penalty for crimes committed against the Jewish people, and executed the
notorious Jew-baiter, Adolf Eichmann in 1962. Recently, on April 9, 1979,
confronted with a wave of violent incidents after the signing of Egypt- Israel
Peace Treaty. Israel sanctioned the use of death penalty "for acts of
inhuman cruelty".
____________ (1) Sunday Tribune, December 8,
1963.
215 In India, very few scientific studies in
regard to crime and punishment in general, and capital punishment, in
particular, have been made. Counsel for the petitioners referred us to Chapter
VI, captioned 'Capital Punishment, in the book, 'Quantum of Punishment in
Criminal Law in India, written by Dr. Kripal Singh Chhabra, now on the staff of
G.N. University, Amritsar. In this article, which was primarily meant as LL. D.
thesis, the learned author concludes:
"On the basis of statistics both of
India and abroad, U.N.O. findings and other weighty arguments, we can safely
conclude that death penalty is not sustainable on merits. Innately it has no
reformative element. It has been proved that death penalty as operative carries
no deterrent value and crime of murder is governed by factors other than death
penalty.
Accordingly, I feel that the death penalty
should be abolished." It will be seen, in the first place, that the
analysis by Dr. Chhabra in coming to the conclusion, that death penalty is of
no penological value, is based on stale, incomplete and inadequate statistics.
This is more particularly true of the data relating to India, which does not
cover the period subsequent to 1961. Secondly, the approach to the problem
adopted by him, like the other Abolitionists referred to by him, is mainly, if
not merely, statistical.
As already noticed, the proponents of the
opposite view of capital punishment, point out that statistics alone are not
determinative of the question whether or not death penalty serves any deterent
or other penological purpose.
Firstly, statistics of deterred potential
murderers are hard to obtain. Secondly, the approach adopted by the
Abolitionists is oversimplified at the cost of other relevant but imponderable
factors, the appreciation of which is essential to assess the true penological
value of capital punishment. The number of such factors is infinitude, their
character variable duration transient and abstract formulation difficult.
Conditions change from country to country and time to time. Due to the
inconstancy of social conditions, it is not scientifically possible to assess
with any degree of accuracy, as to whether the variation in the incidence of
capital crime is attributable to the presence or absence of death penalty in
the penal law of that country for such crimes.
216 That is why statistical attempts to
assess the true penological value of capital punishment, remain inconclusive.
Pursued beyond a certain point, both the
Abolitionists and the Retentionists retreat into their own conceptual bunkers
firmly entrenched in their respective "faiths". We need not take
sides with either of them. There is always a danger in adhering too rigidly to
concepts. As Prof. Brett has pointed out "all concepts are abstractions
from reality, and that in the process of abstraction something of the reality
is bound to be lost''(1). We must therefore, view the problem against the
perspective of the hard realities of the time and the conditions prevailing in
the world, particularly in our own country.
A review of the world events of the last
seven or eight years, as evident from Encyclopaedia Britannica Year Books and
other material referred to by the learned counsel, would show that most
countries in the world are in the grip of an ever-rising tide of violent crime.
Murders for monetary gain or from misdirected political motives, robbery, rape
assault are on the increase. India is no exception. The Union of India has
produced for our perusal a statement of facts and figures showing the incidence
of violent crime, including murder, dacoity and robbery, in the various States
of India, during the years 1965 to 1975. Another statement has been furnished
showing the number of persons convicted of murder and other capital offences
and sentenced to death in some of the States of India during the period 1974 to
1978. This statement however, is incomplete and inadequate. On account of that
deficiency and for the general reasons set out above, it cannot, even
statistically show conclusively or with any degree of certainty, that capital
punishment has no penological worth. But the first statement does bring out
clearly the stark reality that the crimes of murder, dacoity and robbery in
India are since 1965 increasing.
Now, looking around at the world during the
last decade, we may recall that in Purman v. Georgia (decided on June 29,
1976), the Supreme Court of the United States held by a majority, that the
imposition and carrying out of the death penalty constitutes 'cruel and
unusual' punishment, in violation of the Eighth and Fourteenth ____________ (1)
An Enquiry into Criminal Guilt by Prof. Peter Brett, 1963 Edn. Melbourne, page
13.
217 Amendments. Brennan and Marshall, JJ.
(differing from the plurality) went to the extent of holding that death penalty
was per se unconstitutional as it was a cruel and unusual punishment. In so
holding, these learned Justices purported to adopt the contemporary standards
of decency prevailing among the enlightened public of the United States.
Justice Marshall ruled that "it was morally unacceptable to the people of
the United States". This opinion of the learned Justices was sharply
rebuffed by the people of the United States through their chosen
representatives. Soon after the decision in Furman, bowing to the thrust of
public opinion, the Legislatures of not less than 32 States, post-haste revised
their penal laws and reinstituted death penalty for murder and certain other
crimes. Public opinion polls then taken show that approximately 70 per cent of
Americans have been in favour of death penalty. (See 'The Voice', supra).
In 1976, a Gallup Poll taken in the Unitted
States showed that more than 65 per cent of those polled preferred to have an
operative death penalty.
Incidently, the rejection by the people of
the approach adopted by the two learned Judges in Furman, furnishes proof of
the fact that judicial opinion does not necessarily reflect the moral attitudes
of the people. At the same time, it is a reminder that Judges should not take
upon themselves the responsibility of becoming oracles or spokesmen of public
opinion: Not being representatives of the people, it is often better, as a
matter of judicial restraint, to leave the function of assessing public opinion
to the chosen representatives of the people in the legislature concerned.
Coming back to the review of the world crime
situation, during the last decade, Saudi Arabia and some other countries have
reinstated death penalty or enacted harsher punishments not only for murder but
some other crimes, also.
In America, apart from 32 States which
reinstated death penalty under revised laws after Furman, the legislatures of
some of the remaining 15 States have either reinstituted or are considering to
reintroduce death penalty. Currently, a federal legislation for reinstituting
or prescribing capital punishment for a larger range of offences of homicide is
under consideration of United States' Congress. According to the report of the
Amnesty International, in U.S.A., as on May 1, 1979, death penalty can be
imposed for aggravated murder in 35 States. Attempts have been made in other
countries, also to reintroduce death penalty. In Britain, in 218 the wake of
serious violent incidents of terrorism, a Bill was moved in Parliament to
reintroduce capital punishment for murder and certain other offences. It was
defeated by a free vote on April 19, 1979. Even so, no less than 243 Members of
Parliament had voted in favour of this measure.
We have noted that Israel has also recently
reinstituted death penalty for certain criminal 'acts of in human cruelty'. In
People's Republic of China, a new legislation was adopted on July 1, 1979 by
China's Parliament, according to Article 43 of which, death penalty can be
imposed "for the most heinous crimes". In Argentina, the death
penalty was reintroduced in 1976. Similarly, Belgium reintroduced death penalty
and increased the number of crimes punishable with death. In France, in 1978 a
movement in favour of abolition initiated by the French bishops failed to
change the law under which death penalty is a valid sanction for murder and
certain other offences. In Japan, death penalty is a legal sanction for 13
crimes. In Greece and Turkey, death penalty can be imposed for murder and other
capital offences. In Malaysia and the Republic of Singapore under the Drugs Act
of May, 1979, misuse of drugs is also punishable with death. Cuba introduced a
new penal code in February 1978, which provides punishment of death by shooting
for crimes ranging from some types of murder and robbery to hijacking and rape.
In the U.S.S.R. (Russia), as many as 18
offences are punishable with death. In Russia, at present, the following
offences committed in peacetime are punishable with death under the RSFSR
Criminal Code:
"Treason (Article 64); espoinage
(Article 65);
terrorism (if the offence includes the
killing of an official (Article 66); terrorism against representative of
foreign State (if the offence includes the killing of such a representative
"for the purpose of provoking war or international compli cations")
(Article 67);
sabotage (Article 68); organizing the
commission of any of the above-named offences (Article 72); commission of any
of the above-named offences against other Working People's State (Article 73);
banditry (Article 77);
actions disrupting the work of corrective
labour institutions (Article 77-1); making or passing counterfeit money or
securities (when the offence is committed as a form of business) (Article 87);
violation of rules for currency transactions
(when committed as a form of business or on 219 a large scale, or by a person
previously convicted under this Article) (Art. 88); stealing of State property
on an especially large scale, regardless of the manner of stealing (Article
93-1); intentional homicide with aggravating circumstances (Article 102);
rape, when committed by a group of persons or
by an especially dangerous recidivist, or resulting in especially grave
consequences, or the rape of a minor (Article 117); taking a bribe, with
especially aggravating circumstances (Article 173); infringing the life of a
policeman or People's Guard, with aggravating circumstances (Article 191-2);
hijacking an aircraft, if the offence results in death or serious physical
injuries (Article 213-2); resisting a superior or compelling him to violate
official duties, an offence applicable only to military personnel, and carrying
the death penalty in peace-time if committed in conjunction with intentional
homicide of a superior or any other person performing military duties (Article
240)." (Vide, Report of Amnesty International, 1979) Our object in making
the above survey is to bring out the hard fact that in spite of the
Abolitionist movement, only 18 States (as on 30 May 1979) in the world have
abolished the death penalty for all offences, while 8 more have retained it for
specific offences committed in time of war, only. (See Amnesty International
Report (1979) page 92).
This means, most of the countries in the
modern world still retain death penalty as a legal sanction for certain
specified offences. The countries which retain death penalty in their penal
laws, such as, Russia, U.S.A., France, Belgium, Malaysia, China and Japan,
etc., cannot, by any standard, be called uncivilized nations or immature
societies.
Surveyors and students of world events and
current trends believe that the reversal of the attitudes towards criminals and
their judicial punishments in general, and capital punishment in particular in
several countries of the world, is partly due to the fact that milder sanctions
or corrective processes, or even the alternative of imprisonment, have been
found inadequate and wanting to stem the mounting tide of serious crime.
Writing in Encyclopaedia Britannica, 1978 Book of the Year under the caption,
'Changing Attitudes Towards Criminals', Richard Whittingham sums up the cause
that has led to the adoption of this New Hard Line, thus :
220 "Horror Story after horror story of
dangerous criminals sent back into society on bail or parole from a
penitentiary or (in many cases) release from a mental institution to commit
further crimes have forced people to say that enough is enough. The consensus
seemed to be that there must be no repetition of such situations as the one
described by Chicago Sun-Times Columnist Roger Simon in a September 4, 1977,
article about a man who had just been convicted of a particularly despicable
crime." Faced with the spectre of rising crime, people and sociologists
alike, have started questioning the rehabilitation policy. "In California
another study from the Rand Cooperation, suggests that keeping habitual
criminals locked up would do more to reduce crime than any rehabilitation
efforts. Despite treatment or preventive measures, habitual criminals commonly
go back to crime after they are released from prison, the study showed. In
addition, the study found that deterrence to crime was in direct proportion to
the relative certainty of going to jail, after being caught." According to
Encyclopedia Britannica Year Book 1979, in 1978 also penologists were seriously
divided in their views about the end of punishment. Some penologists argued
that "It is not possible to punish and reform simultaneously": while
"others would prefer to strip punishment of its moral overtones",
"While many Legislators and most penologists have supported the idea that
reform ought to take priority in dealing with offenders, many Judges especially
in Britain and the United States, where rising crime rates are the source of
much public concern have expressed grave doubts about the wisdom of this view.
They have argued that the courts must reflect
a public abhorrence of crime and that justice demands that some attempt be made
to impose punishment fitting to the crime".
India also, as the statistics furnished by
the respondent (Union of India) show, is afflicted by a rising rate of violent
crime, particularly murder, armed robbery and dacoity etc., and this has been
the cause of much public concern. All attempts made by individual members to
move Bills in the Parliament for abolition or restriction of the area of death
penalty have ended in failure. At least four of such unsuccessful attempts were
made after India won Independence, in 1949, 1958, 1961 and 1978. It may be
noted that the last of 221 these cttempts was only to restrict the death
penalty to a few types of murders specified in the Bill. Though it was passed
by the Rajya Sabha after being recast, it has not been passed by Lok Sabha.
To sum up, the question whether or not death
penalty serves any penological purpose is a difficult, complex and intractable
issue. It has evoked strong, divergent views.
For the purpose of testing the
constitutionality of the impugned provision as to death penalty in Section 302,
Penal Code on the ground of reasonableness in the light of Articles 19 and 21
of the Constitution, it is not necessary for us to express any categorical
opinion, one way or the other, as to which of these two antithetical views,
held by the Abolitionists and Retentionists, is correct. It is sufficient to
say that the very fact that persons of reason, learning and light are
rationally and deeply divided in their opinion on this issue, is a ground among
others, for rejecting the petitioners argument that retention of death penalty
in the impugned provision, is totally devoid of reason and purpose. If,
notwithstanding the view of the Abolitionists to the contrary, a very large
segment of people, the world over, including sociologists, legislators,
jurists, judges and administrators still firmly believe in the worth and
necessity of capital punishment for the protection of society, if in the
perspective of prevailing crime conditions in India, contemporary public
opinion chanalised through the people's representatives in Parliament, has
repeatedly in the last three decades, rejected all attempts, including the one
made recently to abolish or specifically restrict the area of death penalty, if
death penalty is still a recognised legal sanction for murder or some types of
murder in most of the civilised countries in the world, if the framers of the
Indian Constitution were fully aware as we shall presently show they were of
the existence of death penalty as punishment for murder, under the Indian Penal
Code, if the 35th Report and subsequent Reports of the Law Commission
suggesting retention of death penalty, and recommending revision of the
Criminal Procedure Code and the insertion of the new Sections 235 (2) and 354
(3) in that Code providing for pre- sentence hearing and sentencing procedure
on conviction for murder and other capital offences were before the Parliament
and presumably considered by it when in 1972-1973 it took up revision of the
Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not
possible to hold that the provision of death penalty as an alternative
punishment for murder, in Section 302, Penal Code is unreasonable and not in
the 222 public interest. We would, therefore, conclude that the impugned
provision in Section 302, violates neither the letter nor the ethos of Article
19.
We will now consider the issue whether the
impugned limb of the provision in Section 302, Penal Code contravenes Article
21 of the Constitution.
Before dealing with the contention canvassed
on the point, it will be proper to notice briefly the principles which should
inform the interpretation of Article 21.
In Maneka Gandhi's case, which was a decision
by a Bench of seven learned Judges, it was held by Bhagwati, J.
in his concurring judgment, that the
expression 'personal liberty' in Article 21 is of the widest amplitude and it
covers a variety of rights which go to constitute the personal liberty of man
and some of them have been raised to the status of distinct fundamental rights
under Article 19.
It was further observed that Articles 14, 19
and 21 are not to be interpreted in water-tight compartments, and consequently,
a law depriving a person of personal liberty and prescribing a procedure for
that purpose within the meaning of Article 21 has to stand the test of one or
more of the fundamental rights conferred under Article 19 which may be
applicable in a given situation, ex-hypothesi it must also be liable to be
tested with reference to Article 14.
The principle of reasonableness pervades all
the three Articles, with the result, that the procedure contemplated by Article
21 must be 'right and just and fair' and not 'arbitrary' fancifu or
'oppressive', otherwise, it should be no procedure at all and the requirement
of Article 21 would not be satisfied.
Article 21 reads as under:
"No person shall be deprived of his life
or personal liberty except according to procedure established by law." If
this Article is expanded in accordance with the interpretative principle
indicated in Maneka Gandhi, it will read as follows:
"No person shall be deprived of his life
or personal liberty except according to fair, just and reasonable procedure
established by valid law." 223 In the converse positive form, the expanded
Article will read as below:
"A peron may be deprived of his life or
personal liberty in accordance with fair, just and reasonable procedure
established by valid law." Thus expanded and read for interpretative
purposes, Article 21 clearly brings out the implication, that the Founding Fathers
recognised the right of the State to deprive a person of his life or personal
liberty in accordance with fair, just and reasonable procedure established by
valid law. There are several other indications, also, in the Constitution which
show that the Constitution-makers were fully cognizant of the existence of
death penalty for murder and certain other offences in the Indian Penal Code.
Entries 1 and 2 in List III-Concurrent List-of the Seventh Schedule
specifically refer to the Indian Penal Code and the Code of Criminal Procedure
as in force at the commencement of the Constitution. Article 72 (1) (c)
specifically invests the President with power to suspend, remit or commute the
sentence of any person convicted of any offence, and also "in all cases
where the sentence is a sentence of death".
Likewise, under Article 161, the Governor of
a State has been given power to suspend, remit or commute, inter alia the
sentence of death of any person convicted of murder or other capital offence
relating to a matter to which the executive power of the State extends. Article
134, in terms, gives a right of appeal to the Supreme Court to a person who, on
appeal, is sentenced to death by the High Court, after reversal of his
acquittal by the trial Court. Under the successive Criminal Procedure Codes
which have been in force for about 100 years, a sentence of death is to be
carried out by hanging. In view of the aforesaid constitutional postulates, by
no stretch of imagination can it be said that death penalty under Section 302,
Penal Code, either per se or because of its execution by hanging, constitutes
an unreasonable, cruel or unusual punishment. By reason of the same
constitutional postulates, it cannot be said that the framers of the
Constitution considered death sentence for murder or the prescribed traditional
mode of its execution as a degrading punishment which would defile "the
dignity of the individual" within the contemplation of the Preamble to the
Constitution. On parity of reasoning, it cannot be said that death penalty for
the offence of murder violates the basic structure of the Constitution.
224 Before we pass on to the main Question
No. II, we may dispose of another contention convassed by Dr. L.M. Singhvi.
It is pointed out that India, as a member of
the International Community, was a participating delegate at the international
conference that made the Stockholm Declaration on December 11, 1977, that India
has also accepted the International Covenant on Civil and Political Rights
adopted by the Central Assembly of the United Nations, which came into force on
March 23, 1966, and to which some 47 countries, including India, are a party.
This being the position, it is stressed, India stands committed to the
abolition of the death penalty. It is contended that the constitutional
validity and interpretation of the impugned limb of Section 302, Penal Code,
and the sentencing procedure for capital cases provided in Section 354 (3) of
the Code of Criminal Procedure, 1973, must be considered in the light of the
aforesaid Stockholm Declaration and the International Covenant, which represent
the evolving attitudes and standards of decency in a maturing world.
Let us examine this contention. The European
Convention of Human Rights came into force on September 1, 1953, and 18
countries had signed this Convention on November 4, 1950.
India acceded to this Resolution of the
Convention on March 27, 1979. The International Covenant on Civil and Political
Rights, inter alia, provides:
"Article 6 (1) Every human being has the
inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.
(2) In countries which have not abolished the
death penalty, sentence of death may be imposed only for the most serious
crimes in accordance with the law in force at the time of the commission of the
crime...
It will be seen that clauses (1) and (2) of
Article 6 do not abolish or prohibit the imposition of death penalty in all
circumstances. All that they require is that, firstly, death penalty shall not
be arbitrarily inflicted; secondly, it shall be imposed only for most serious
crimes in accordance with a law, which shall not be an ex post facto
legislation.
Thus, the requirements of these clauses are
substantially 225 the same as the guarantees or prohibitions contained in
Articles 20 and 21 of our Constitution. India's commitment therefore does not
go beyond what is provided in the Constitution and the Indian Penal Code and
the Criminal Procedure Code. The Penal Code prescribes death penalty as an
alternative punishment only for heinous crimes which are not more than seven in
number. Section 354 (3) of the Criminal Procedure Code, 1973, as we shall
presently discuss, in keeping with the spirit of the International Covenant,
has further restricted the area of death penalty.
India's penal laws, including the impugned
provisions and their application, are thus entirely in accord with its
international commitment.
It will be pertinent to note that most of the
countries including those who have subscribed to this International covenant,
retain death penalty for murder and certain other crimes even to the present
day in their penal laws. Neither the new interpretative dimensions given to
Articles 19 and 21 by this Court in Maneka Gandhi and Charles Sobraj v. The
Superintendent Central Jail, Tihar, New Delhi(1) nor the acceptance by India of
the International Covenant on Civil and Political Rights, makes any change in
the prevailing standards of decency and human dignity by which counsel require
us to judge the constitutional validity of the impugned provisions. The
International Covenant, as already noticed, does not outlaw capital punishment
for murder, altogether.
For all the foregoing reasons, we would
answer the first main question in the negative. This takes us to Question No.
II.
Question No.II.
Are the provisions of Section 354 (3) of the
Code of Criminal Procedure, 1973 unconstitutional ? That is the question. The
constitutional validity of section 354 (3) is assailed on these grounds:
(i) (a) Section 354 (3) of the Code of
Criminal Procedure, 1973, delegates to the Court the duty to legislate the
field of 'special reasons' for choosing between life and death, and
____________________ (1) [1979] 1 S.C.R. 512.
226 (b) permits imposition of death penalty
in an arbitrary and whimsical manner in as much as it does not lay down any
rational principies or criteria for invoking this extreme sanction. (Reliance
has been placed on Furman v. Georgia (ibid).
(ii) If Section 354 (3) is to be saved from
the vice of unconstitutionality, the Court should so interpret it and define
its scope that the imposition of death penalty comes to be restricted only to
those types of grave murders and capital offences which imperil the very
existence and security of the State. (Reliance for this argument has been
placed on Rajendra Prasad's case (ibid) ).
As against this, the learned
Solicitor-General submits that the policy of the law in the matter of
imposition of death sentence is writ large and clear in Section 354 (3),
namely, that life imprisonment is the rule and death sentence an exception;
that the correct approach should be to apply this policy to the relevant facts
of the particular case, bearing on the question of sentence, and to find out if
there are any exceptional reasons justifying imposition of the death penalty,
as a departure from the normal rule.
It is submitted that conferment of such
sentencing discretion on the courts, to be exercised judicially, in no sense,
amounts to delegation of the legislative powers by Parliament.
Shri Sorabji further submits that there is no
inherent impossibility in formulating broad guidelines consistent with the
policy indicated by the legislature, for the exercise of the judicial functions
under Section 354 (3). He emphasises that only broad guidelines, as distinct
from rigid rules, can be laid down by the Court. Since the discretion-proceeds
the argument-is to be exercised judicially after taking into consideration all
the aggravating and mitigating circumstances relating to the crime and the
criminal in a particular case, and ample safeguards by way of appeal and
reference to the superior courts against erroneous or arbitrary exercise of the
sentencing discretion have been provided, Section 354 (3) cannot be said to be
violative of Articles 14, 19 and 21 or anything else in the Constitution, 227
Before embarking upon a discussion of the arguments advanced on both sides, it
is necessary to have a peep into the history and the legislative background of
the procedural provisions relating to sentencing in the Code of criminal
Procedure.
Under the Code of Criminal Procedure, 1898,
as it stood before its amendment by Act No. 26 of 1955, even for the seven
offences mentioned earlier, which are punishable in the alternative with death,
the normal sentence was the death sentence, and if the Court wanted to depart
from this rule, it had to give reasons for doing so. This requirement was
embodied in subsection (5) of Section 367, which, as it then stood, was as
follows: "If the accused is convicted of an offence punishable with death
and the Court sentences him to any punishment other than death, the Court shall
in its judgment state the reason why sentence of death was not passed.
The Law Commission in its 35th Report (Vol.
I), made the following comments on this provision:
"...a considerable body of opinion is in
favour of a provision requiring the court to state its reasons for imposing the
punishment either of death or of imprisonment for life. Further, this would be
good safeguard to ensure that the lower courts examine the case as elaborately
from the point of view of sentence as from the point of view of guilt...It
would increase the confidence of the people, in the courts, by showing that the
discretion is judicially exercised. It would also facilitate the task of the
High Court in appeal or in proceedings for confirmation in respect of the
sentence (where the sentence awarded is that of death) or in proceedings in
revision for enhancement of the sentence (where the sentence awarded is one of
imprisonment of life." In deferance to this recommendation, section 66 of
the Code of Criminal Procedure (Amendment) Act, 1955 (XXVI of 1955) deleted old
sub-section (5) of Section 367 with effect from January 1, 1956, and thereafter,
for such capital offences, it was left to the Court, on the facts of each case,
to pass, in its discretion, for reason to be 228 recorded, the sentence of
death or the lesser sentence. This led to some difference of opinion whether,
even after the Amendment of 1955, in case of murder the normal punishment was
death or imprisonment for life (See A.I.R. Commentaries on the Code of Criminal
Procedure, Vol. 3, page 565, by D.V. Chitaley and S. Appu Rao). Overruling its
earlier decision, the Bombay High Court in the State v. Vali Mohammad,(1) held
that death is not a normal penalty for murder. As against this, the Division
Bench of the Madras High Court in Veluchami Thevar,(2) held that death was the
normal punishment where there were no extenuating circumstances.
The third set of cases held that both the
sentences were normal but the discretion as regards sentence was to be
exercised in the light of facts and circumstances of the case.
This view appears to be in accord with the
decision of this Court in Iman Ali & Anr. v. State of Assam.(3) In that
case, there was a clear finding by the Court of Session which had been upheld
by the High Court, that each of the two appellants therein, committed a
cold-blooded murder by shooting two inmates of the house simply with the object
of facilitating commission of dacoity by them. Those persons were shot and
killed even though they had not tried to put up any resistence. It was held by
this Court (speaking through Bhargava, J.) that in these circumstances where
the murders were committed in cold-blood with the sole object of committing
dacoity, the Sessions Judge had not exercised his discretion judicially in not
imposing the death sentence, and the High Court was justified in enhancing the
sentence of the appellants from life imprisonment to death.
Jagmohan Singh's case, which we shall notice
presently in further detail, proceeds on the hypothesis that even after the
deletion of sub-section (5) of Section 367 in the Code of 1898, both the
alternative sentences provided in Section 302, Penal Code are normal punishment
for murder, and the choice of either sentence rests in the discretion of the
Court which is to be exercised judicially, after taking into account all the
relevant circumstances of the case.
__________________ (1) AIR 1959 Bom. 294
(299).
(2) A.I.R. 1965 Mad. 48 at p. 49.
(3) [1968] 3 S.C.R. 610.
229 Section 354 (3) of the Code of Criminal
Procedure, 1973, marks a significant shift in the legislative policy underlying
the Code of 1898, as in force immediately before Apr. 1, 1974, according to
which both the alternative sentences of death or imprisonment for life provided
for murder and for certain other capital offences under the Penal Code, were
normal sentences. Now, according to this changed legislative policy which is
patent on the face of Section 354 (3), the normal punishment for murder and six
other capital offences under the Penal Code, is imprisonment for life (or
imprisonment for a term of years) and death penalty is an exception. The Joint
Committee of Parliament in its Report, stated the object and reason of making
this change, as follows:
"A sentence of death is the extreme
penalty of law and it is but fair that when a Court awards that sentence in a
case where the alternative sentence of imprisonment for life is also available,
it should give special reasons in support of the sentence" Accordingly,
sub-section (3) of Section 354 of the current Code provides:
"When the conviction is for an offence
punishable with death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the reasons for the
sentence awarded, and, in the case of sentence of death, the special reasons
for such sentence." In the context, we may also notice Section 235 (2) of
the Code of 1973, because it makes not only explicit, what according to the
decision in Jagmohan's case was implicit in the scheme of the Code, but also
bifurcates the trial by providing for two hearings, one at the pre-conviction
stage and another at the pre-sentence stage. It requires that:
"If the accused is convicted, the Judge
shall, unless he proceeds in accordance with the provisions of Section 360,
hear the accused on the question of sentence, and then pass sentence on him
according to law." 230 The Law Commission on its 48th Report had pointed
out this deficiency in the sentencing procedure:
"45. It is now being increasingly
recognised that a rational and consistent sentencing policy requires the
removal or several deficiencies in the present system. One such deficiency is
the lack of comprehensive information as to characteristics and background of
the offender.
The aims of sentencing:-Themselves
obscure-become all the more so in the absence of information on which the
correctional process is to operate. The public as well so the courts themselves
are in the dark about judicial approach in this regard.
We are of the view that the taking of
evidence as to the circustances relevant to sentencing should be encouraged and
both the prosecution and the accused should be allowed to cooperate in the
process." By enacting Section 235 (2) of the New Code, Parliament has
accepted that recommendation of the Law Commission.
Although sub-section (2) of Section 235 does
not contain a specific provision as to evidence and provides only for hearing
of the accused as to sentence, yet it is implicit in this provision that if a
request is made in that behalf by either the prosecution or the accused, or by
both, the Judge should give the party or parties concerned an opportunity of
producing evidence or material relating to the various factors bearing on the
question of sentence. "Of course", as was pointed out by this Court
in Santa Singh v. State of Punjab,(1) "care would have to be taken by the
Court to see that this hearing on the question of sentence is not turned into
an instrument for unduly protracting the proceedings.
The claim of due and proper hearing would
have to be harmonised with the requirement of expeditious disposal of
proceedings." We may also notice Sections 432, 433 and 433A, as they throw
light as to whether life imprisonment as currently administered in
______________ (1) A.I.R. 1976 SC. 2286.
231 India, can be considered an adequate
alternative to the capital sentence even in extremely heinous cases of murder.
Sections 432 and 433 of the Code of 1973
continue Sections 401 and 402 of the Code of 1898, with necessary modifications
which bring them in tune with Articles 72 and 161 of the Constitution. Section
432 invests the "appropriate Government" (as defined in sub-section
(7) of that Section) with power to suspend or remit sentences.
Section 433 confers on the appropriate
Government power to commute sentence, without the consent of the person
sentenced. Under clause (a) of the Section, the appropriate Government may
commute a sentence of death, for any other punishment provided by the Indian
Penal Code.
With effect from December 18, 1978, the Code
of Criminal Procedure (Amendment) Act, 1978, inserted new Section 433A, which
runs as under :
"433A. Restriction on powers of
remission or commutation in certain cases-Notwithstanding anything contained in
Section 432, where a sentence of imprisonment for life is imposed on conviction
of a person for an offence for which death is one of the punishments provided
by law or where a sentence of death imposed on a person has been commuted under
Section 433 into one of imprisonment for life, such person shall not be
released from prison unless he had served at least fourteen years of
imprisonment." It may be recalled that in Jagmohan this Court had observed
that, in practice, life imprisonment amounts to 12 years in prison. Now,
Section 433A restricts the power of remission and commutation conferred on the
appropriate Government under Sections 432 and 433, so that a person who is
sentenced to imprisonment for life or whose death sentence is commuted to
imprisonment for life must serve actual imprisonment for a minimum of 14 years.
We may next notice other provisions of the
extent Code (corresponding to Sections 374, 375, 376 and 377 of the repealed
Code) bearing on capital punishment. Section 366 (i) of the Code requires the
Court passing a sentence of death to submit the proceedings to the High Court,
and further mandates that such a sentence shall not be executed unless it is
confirmed by the High Court. On such a 232 reference for confirmation of death
sentence, the High Court is required to proceed in accordance with Sections 367
and 368. Section 367 gives power to the High Court to direct further inquiry to
be made or additional evidence to be taken. Section 368 empowers the High Court
to confirm the sentence of death or pass any other sentence warranted by law or
to annul or alter the conviction or order a new trial or acquit the accused.
Section 369 enjoins that in every case so submitted, the confirmation of the
sentence, or any new sentence or order passed by the High Court, shall, when
such court consists of two or more Judges, be made, passed and signed by at
least two of them. Section 370 provides that where any such case is heard
before a Bench of Judges and such Judges are equally divided in opinion, the
case shall be referred to a third Judge.
In this fasciculus of Sections relating to
confirmation proceedings in the High Court, the Legislature has provided
valuable safeguards of the life and liberty of the subject in cases of capital
sentences. These provisions seek to ensure that where in a capital case, the
life of the convicted person is at stake, the entire evidential material
bearing on the innocence or guilt of the accused and the question of sentence
must be scrutinised with utmost caution and care by a superior Court.
The High Court has been given very wide
powers under these provisions to prevent any possible miscarriage of justice.
In State of Maharashtra v. Sindhi, (1) this Court reiterated, with emphasis,
that while dealing with a reference for confirmation of a sentence of death,
the High Court must consider the proceedings in all their aspects reappraise,
reassess and reconsider the entire facts and law and, if necessary, after
taking additional evidence, come to its own conclusions on the material on
record in regard to the conviction of the accused (and the sentence)
independently of the view expressed by the Sessions Judge.
Similarly, where on appeal, the High Court
reverses an acquittal, and convicts the accused person and sentences him to
death, Section 379 of the Code of 1973, gives him a right of appeal to the
Supreme Court. Finally, there is Article 136 of the Constitution under which
the Supreme Court is empowered, in its discretion, to __________ (1) A.I.R.
1975 S.C. 1665.
233 entertain an appeal on behalf of a person
whose sentence of death awarded by the Sessions Judge is confirmed by the High
Court.
In the light of the above conspectus, we will
now consider the effect of the aforesaid legislative changes on the authority
and efficacy of the propositions laid down by this Court in Jagmohan's case.
These propositions may be summed up as under :
(i) The general legislative policy that
underlines the structure of our criminal law, principally contained in the
Indian Penal Code and the Criminal Procedure Code, is to define an offence with
sufficient clarity and to prescribe only the maximum punishment therefor, and
to allow a very wide discretion to the Judge in the matter of fixing the degree
of punishment.
With the solitary exception of Section 303,
the same policy permeates Section 302 and some other sections of the Penal
Code, where the maximum punishment is the death penalty.
(ii) (a) No exhaustive enumeration of
aggravating or mitigating circumstances which should be considered when
sentencing an offender, is possible. "The infinite variety of cases and
facts to each case would make general standards either meaningless 'boiler
plate' or a statement of the obvious that no Jury (Judge) would need."
(Referred to McGauthe v. California(1) (b) The impossibility of laying down
standards is at the very core of the criminal law as administered in India
which invests the judges with a very wide discretion in the matter of fixing
the degree of punishment.
(iii) The view taken by the plurality in
Furman v.
Georgia decided by the Supreme Court of the
United States, to the effect, that a law which gives uncontrolled and un-
_____________________ (1) [1971] 402 US 183.
234 guided discretion to the Jury (or the
Judge) to choose arbitrarily between a sentence of death and imprisonment for a
capital offence, violates the Eighth Amendment, is not applicable in India. We
do not have in our Constitution any provision like the Eighth Amendment, nor
are we at liberty to apply the test of reasonableness with the freedom with
which the Judges of the Supreme Court of America are accustomed to apply
"the due process" clause. There are grave doubts about the expediency
of transplanting western experience in our country. Social conditions are
different and so also the general intellectual level. Arguments which would be
valid in respect of one area of the world may not hold good in respect of
another area.
(iv) (a) This discretion in the matter of
sentence is to be exercised by the Judge judicially, after balancing all the
aggravating and mitigating circumstances of the crime.
(b) The discretion is liable to be corrected
by superior courts. The exercise of judicial discretion on well-recognised
principles is, in the final analysis, the safest possible safeguard for the
accused.
In view of the above, it will be impossible
to say that there would be at all any discrimination, since crime as crime may
appear to be superficially the same but the facts and circumstances of a crime
are widely different. Thus considered the provision in Section 302, Penal Code
is not violative of Article 14 of the Constitution on the ground that it
confers on the judges an unguided and uncontrolled discretion in the matter of
awarding capital punishment of imprisonment for life.
(v) (a) Relevant facts and circumstances
impinging on the nature and circumstances of the crime can be brought before
the Court at the preconviction 235 stage, notwithstanding the fact that no
formal procedure for producing evidence regarding such facts and circumstances
had been specifically provided. Where counsel addresses the Court with regard
to the character and standing of the accused, they are duly considered by the
Court unless there is something in the evidence itself which belies him or the
Public Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising
its discretion to choose either of the two alternative sentences provided in
Section 302, Penal Code, "the Court is principally concerned with the
facts and circumstances whether aggravating or mitigating, which are connected
with the particular crime under inquiry. All such facts and circumstances are
capable of being proved in accordance with the provisions of the Indian
Evidence Act in a trial regulated by the Cr. P.C. The trial does not come to an
end until all the relevant facts are proved and the counsel on both sides have
an opportunity to address the Court. The only thing that remains is for the
Judge to decide on the guilt and punishment and that is what Sections 306(2)
and 309(2) Cr. P.C. purport to provide for. These provisions are part of the
procedure established by law and unless it is shown that they are invalid for
any other reasons they must be regarded as valid. No reasons are offered to
show that they are constitutionally invalid and hence the death sentence
imposed after trial in accordance with the procedure established by law is not
unconstitutional under Article 21." (emphasis added) A study of the
propositions set out above, will show that in substance, the authority of none
of them has been affected by the legislative changes since the decision in
Jagmohan's case. Of course, two of them require to be adjusted and attuned to
the shift in the 236 legislative policy. The first of those propositions is No.
(iv) (a) which postulates, that according to the then extant Code of Criminal
Procedure both the alternative sentences provided in Section 302, Penal Code
are normal sentences, and the Court can, therefore, after weighing the
aggravating and mitigating circumstances of the particular case, in its
discretion, impose either of those sentences. This postulate has now been
modified by Section 354(3) which mandates the Court convicting a person for an
offence punishable with death or, in the alternative with imprisonment for life
or imprisonment for a term of years, not to impose the sentence of death on
that person unless there are "special reasons"- to be recorded-for
such sentence. The expression "special reasons" in the context of
this provision, obviously means "exceptional reasons" founded on the
exceptionally grave circumstances of the particular case relating to the crime
as well as the criminal. Thus, the legislative policy now writ large and clear
on the face of Section 354(3) is that on conviction for murder and other
capital offences punishable in the alternative with death under the Penal Code,
the extreme penalty should be imposed only in extreme cases.
In this view we are in accord with the dictum
of this Court in Balwant Singh v. State of Punjab (1), wherein the
interpretation of Section 354(3) first came up for consideration. After
surveying the legislative background, one of us (Untwalia, J,) speaking for the
Court, summed up the scope and implications of Section 354 (3), thus :
"Under this provision the Court is
required to state the reasons for the sentence awarded and in the case of
sentence of death, special reasons are required to be stated. It would thus be
noticed that awarding of the sentence other than the sentence of death is the
general rule now and only special reasons that is to say, special facts and
circumstances in a given case, will warrant the passing of the death sentence.
It is unnecessary nor is it possible to make a catalogue of the special reasons
which may justify the passing of the death sentence in a case." While
applying proposition (iv) (a), therefore, the Court has to bear
_____________________ (1) A.I.R.1976 SC 231=[1976] 2 SCR 684.
237 in mind this fundamental principle of
policy embodied in Section 354(3).
Another proposition, the application of
which, to an extent, is affected by the legislative changes, is No. (v).
In portion (a) of that proposition, it is
said that circumstances impinging on the nature and circumstances of the crime
can be brought on record before the pre-conviction stage. In portion (b), it is
emphasised that while making choice of the sentence under Section 302, Penal
Code, the Court is principally concerned with the circumstances connected with
the particular crime under inquiry. Now, Section 235(2) provides for a
bifurcated trial and specifically gives the accused person a right of pre-
sentence hearing, at which stage, he can bring on record material or evidence,
which may not be strictly relevant to or connected with the particular crime
under inquiry, but nevertheless, have, consistently with the policy underlined
in Section 354(3), a bearing on the choice of sentence. The present legislative
policy discernible from Section 235(2) read with Section 354(3) is that in
fixing the degree of punishment or making the choice of sentence for various
offences, including one under Section 302, Penal Code, the Court should not
confine its consideration principally" or merely to the circumstances
connected with the particular crime, but also give due consideration to the
circumstances of the criminal.
Attuned to the legislative policy delineated
in Sections 354(3) and 235(2), propositions (iv) (a) and (v) (b) in Jagmohan,
shall have to be recast and may be stated as below :
(a) The normal rule is that the offence of murder
shall be punished with the sentence of life imprisonment. The court can depart
from that rule and impose the sentence of death only if there are special
reasons for doing so. Such reasons must be recorded in writing before imposing
the death sentence.
(b) While considering the question of
sentence to be imposed for the offence of murder under Section 302 Penal Code,
the court must have regard to every relevant circumstance relating to the crime
as well as the criminal. If the court finds, but not otherwise, that the 238
offence is of an exceptionally depraved and heinous character and constitutes,
on account of its design and the manner of its execution, a source of grave
danger to the society at large, the court may impose the death sentence.
The soundness or application of the other
propositions in Jagmohan, and the premises on which they rest, are not affected
in any way by the legislative changes since effected. On the contrary these
changes reinforce the reasons given in Jagmohan, for holding that the impugned
provisions of the Penal Code and the Criminal Procedure Code do not offend
Articles 14 and 21 of the Constitution. Now, Parliament has in Section 354(3)
given a broad and clear guideline which is to serve the purpose of lodestar to
the court in the exercise of its sentencing discretion.
Parliament has advisedly not restricted this
sentencing discretion further, as, in its legislative judgment, it is neither
possible nor desirable to do so. Parliament could not but be aware that since
the Amending Act 26 of 1955, death penalty has been imposed by courts on an
extremely small percentage of persons convicted of murder-a fact which
demonstrates that courts have generally exercised their discretion in
inflicting this extreme penalty with great circumspection, caution and
restraint. Cognizant of the past experience of the administration of death
penalty in India, Parliament, in its wisdom, thought it best and safe to leave
the imposition of this gravest punishment in gravest cases of murder, to the
judicial discretion of the courts which are manned by persons of reason,
experience and standing in the profession. The exercise of this sentencing
discretion cannot be said to be untrammelled and unguided. It is exercised
judicially in accordance with well-recognised principles crystalised by
judicial decisions, directed along the broad contours of legislative policy
towards the signposts enacted in Section 354(3).
The new Section 235 (2) adds to the number of
several other safeguards which were embodied in the Criminal Procedure Code of
1898 and have been re-enacted in the Code of 1973. Then, the errors in the
exercise of this guided judicial discretion are liable to be corrected by the
superior courts. The procedure provided in Criminal Procedure Code for imposing
capital punishment for murder and some other capital crimes under the Penal
Code cannot, by any reckoning, be said to be unfair unreasonable and unjust,
239 Nor can it be said that this sentencing discretion, with which the courts
are invested, amounts to delegation of its power of legislation by Parliament.
The argument to that effect is entirely misconceived. We would, therefore, re-
affirm the view taken by this Court in Jagmohan, and hold that the impgned
provisions do not violate Articles 14, 19 and 21 of the Constitution.
Now, remains the question whether this Court
can lay down standards or norms restricting the area of the imposition of death
penalty to a narrow category of murders.
Dr. Chitale contends that the wide
observations in Jagmohan as to the impossibility of laying down standards or
norms in the matter of segtencing are too sweeping. It is submitted that soon
after the decision in Furman, several States in U.S.A. amended their penal
statutes and brought them in conformity with the requirements of Furman.
Support has also been sought for this argument from Gregg v.
Georgia, wherein the Supreme Court of the
United States held that the concern expressed in Furman decision that death
penalty may not be imposed in an arbitrary or capricious manner could be met by
a carefully drafted statute ensuring that the sentencing authority was given
adequate guidance and information for determining the appropriate sentence, a
bifurcated sentencing proceeding being preferable as a general proposition.
If by "laying down standards", it
is meant that 'murder' should be categorised before hand according to the
degrees of its culpability and all the aggravating and mitigating circumstances
should be exhaustively and rigidly enumerated so as to exclude all free-play of
discretion, the argument merits rejection.
As pointed out in Jagmohan, such
"standardisation" is well-nigh impossible.
Firstly, there is little agreement among
penologists and jurists as to what information about the crime and criminal is
relevant and what is not relevant for fixing the dose of punishment for a
person convicted of a particular offence. According to Cessare Beccaria, who is
supposed to be the intellectual progenitor of today's fixed sentencing movement
'crimes are only to be measured by the injnry done to society'. But the 20th
Century sociologists do not wholly agree 240 with this view. In the opinion of
Von Hirsch, the "seriousness of a crime depends both on the harm done (or
risked) by the act and degree of the actor's culpability".
But how is the degree of that culpability to
be measured.
Can any thermometer be devised to measure its
degree ? This is a very baffling, difficult and intricate problem.
Secondly, criminal cases do not fall into
set- behavioristic patterns. Even within a single-category offence there are
infinite, unpredictable and unforceable variations. No two cases are exactly
identical. There are countless permutations and combinations which are beyond
the anticipatory capacity of the human calculus. Each case presents its own
distinctive features, its peculiar combinations of events and its unique
configuration of facts. "Simply in terms of blame-worthiness or dessert
criminal cases are diferent from one another in ways that legislatures cannot
anticipate, and limitations of language prevent the precise description of
differences that can be anticipated."(1) This is particularly true of murder.
"There is probably no offence", observed Sir Ernest Growers, Chairman
of the Royal Commission, "that varies so widely both in character and in
moral guilt as that which falls within the legal definition of murder."
The futility of attempting to lay down exhaustive standards was demonstrated by
this Court in Jagmohan by citing the instance of the Model Penal Code which was
presented to the American Supreme Court in McGoutha.
Thirdly, a standardisation of the sentencing
process which leaves little room for judicial discretion to take account of
variations in culpability within single-offence category ceases to be judicial.
It tends to sacrifice justice at the altar of blind uniformity. Indeed, there
is a real danger of such mechanical standardisation degenerating into a bed of
procrustean cruelty.
Fourthly, standardisation or sentencing
discretion is a policy matter which belongs to the sphere of legislation.
When Parliament as a matter of sound
legislative policy, did not deliberately restrict, control or standardise the
sentencing discretion any further than that incompassed by the broad contours
delineated in Section 354 (3), _____________ (1) Messinger and Bittner's
Crimonology Year Book (Ibid) Albert W, Alcherler's article at page 421.
241 the Court would not by over-leaping its
bounds rush to do what Parliament, in its wisdom, varily did not do.
We must leave upto the Legislature, the
things that are Legislature's. "The highest judicial duty is to recognise
the limits on judicial power and to permit the democratic processes to deal
with matters falling outside of those limits". As Judges, we have to
resist the temptation to substitute our own value choices for the will of the
people.
Since substituted judicial 'made-to-order'
standards, howsoever painstakingly made, do not bear the peoples imprimatur,
they may not have the same authenticity and efficacy as the silent zones and
green belts designedly marked out and left open by Parliament in its
legislative planning for fair-play of judicial discretion to take care of the
variable, unpredictable circumstances of the individual cases, relevant to
individualised sentencing.
When judges, acting individually or
collectively, in their benign anxiety to do what they think is morally good for
the people, take upon themselves, the responsibility of setting down social
norms of conduct. There is every danger, despite their effort to make a
rational guess of the notions of right and wrong prevailing in the community at
large and despite their intention to abide by the dictates of mere reason, that
they might write their own peculiar view or personal pre-dilection into the
law, sincerely mistaking that changeling for what they perceive to be the
community ethic. The perception of 'community' standards or ethics may vary
from Judge to Judge. In this sensitive, highly controversial area of death
penalty, with all its complexity, vast implications and manifold ramifications,
even all the Judges sitting cloistered in this Court and acting unanimously,
cannot assume the role which properly belongs to the chosen representatives of
the people in Parliament, particularly when Judges have no divining rod to
divine accurately the will of the people. In Furman, the Hon'ble Judges claimed
to articulate the contemporary standards of morality among the American people.
But speaking through public referenda, Gallup polls and the state legislatures,
the American people sharply rebuffed them. We must draw a lesson from the same.
What the learned Chief Justice, who is
amongst us in this case has said recently in Gurbaksh Singh Sibbia and others
v. State of Punjab(1) in the context of laying down standards in the discre-
________________________ (1) Criminal Appeals Nos. 335 etc. of 1977 and 81 and
82 of 1978.
242 tionary area of anticipatory bail comes
in as a timely reminder. In principle, these observations aptly apply to the
desirability and feasibility of laying down standards in the area of sentencing
discretion, also. Let us therefore, hark to the same:
"Generalisations on matters which rest
on discretion and the attempt to discover formulae of universal application
when facts are bound to differ from case to case frustrate the very purpose of
conferring discretion. No two cases are alike on facts and, therefore, Courts have
to be allowed a little free play in the joints if the conferment of
discretionary power is to be meaningful. There is no risk involved in
entrusting a wide discretion to the Court of Session and the High Court in
granting anticipatory bail because, firstly, these are higher courts manned by
experienced persons, secondly, their orders are not final but are open to
appellate or revisional scrutiny and above all because, discretion has always
to be exercised by courts judicially and not according to whim, caprice or
fancy. On the other hand, there is a risk in foreclosing categories of cases in
which anticipatory bail may be allowed because life throws up unforeseen
possibilities and offers new challenges. Judicial discretion has to be free
enough to be able to take these possibilities in its stride and to meet these
challenges. While dealing with the necessity for preserving judicial discretion
unhampered by rules of general application, Earl Loreburn L.C. said in Hyman
and Anr. v. Rose(1).
"I desire in the first instance to point
out that the discretion given by the section is very wide. Now it seems to me
that when the Act is so express to provide a wide discretion...it is not
advisable to lay down any rigid rules for guiding that discretion. I do not doubt
that the rules enunciated by the Master of the Rolls in the present case are
useful maxims in general, and that in general they reflect the point-of view
from which judges would regard an application for relief. But I think it ought
to be distinctly understood that there may be cases in which any or all of them
may be disregarded. If it were otherwise, the free discretion given by the
statute would be fettered by limitations which have nowhere been enacted. It is
one thing to decide what is the true meaning of the language contained
___________________________ (1) [1912] A.C. 623, 243 in an Act of Parliament.
It is quite a different thing to place conditions upon a free discretion
entrusted by statute to the Court where the conditions are not based upon statutory
enactment at all. It is not safe. I think, to say that the Court must and will
always insist upon certain things when the Act does not require them, and the
facts of some unforeseen case may make the Court wish it had kept a free
hand." "Judges have to decide cases as they come before them, mindful
of the need to keep passions and prejudices out of their decisions. And it will
be strange if, by employing judicial artifices and techniques, we cut down the
discretion so wisely conferred upon the Courts, by devising a formula which
will confine the power to grant anticipatory bail within a strait-jacket. While
laying down cast-iron rules in a matter like granting anticipatory bail, as the
High Court has done, it is apt to be overlooked that even Judges can have but
an imperfect awareness of the needs of new situations. Life is never static and
every situation has to be assessed in the context of emerging concerns as and
when it arises. Therefore, even if we were to frame a 'Code for the grant of
anticipatory bail', which really is the business of the legislature, it can at
best furnish broad guidelines and cannot compel blind adherence." From
what has been extracted above, it is clear that this Court should not venture
to formulate rigid standards in an area in which the Legislature so warily
treads. Only broad guidelines consistent with the policy indicated by the
Legislature in Section 354(3) can be laid down. Before we come to this aspect
of the matter, it will be fair to notice briefly the decisions of the Supreme
Court of U.S.A. in Gregg v. Georgia and companion cases.
Soon after the decision in Furman, the
Georgia Legislature amended its statutory scheme. The amended statute retains
the death penalty for six categories of crime: murder, kidnapping for ransom or
where victim is harmed, armed robbery, rape, treason, and aircraft hijacking.
The statutory aggravating circumstances, the existence of any of which may
justify the imposition of the extreme penalty of death, as provided in that
statute, are:
"(1) The offence of murder, rape, armed
robbery, or 244 kidnapping was committed by a person with a prior record of
conviction for a capital felony, (or the offence of murder was committed by a
person who has a substantial history of serious assaultive criminal
convictions).
(2) The offence of murder, rape, armed
robbery, or kidnapping was committed while the offender was engaged in the
commission of another capital felony, or aggravated battery, or the offence of
murder was committed while the offender was engaged in the commission of
burglary or arson in the first degree.
(3) The offender by his act of murder, armed
robbery, or kidnapping knowingly created a great risk of death to more than one
person in a public place by means of a weapon or device which would normally be
hazaradous to the lives of more than one person.
(4) The offender committed the offence of
murder for himself or another, for the purpose of receiving money or any other
thing of monetary value.
(5) The murder of a judicial officer, former
judicial officer, district attorney or solicitor or former district attorney or
solicitor during or because of the exercise of his official duty.
(6) The offender caused or directed another
to committed murder as an agent or employee of another person.
(7) The offence of murder, rape, armed
robbery, or kidnapping was outrageiously or want only vile horrible or inhuman
in that it involved torture, depravity of mind, or an aggravated battery to the
victim.
(8) The offence of murder was committed against
any peace officer, corrections employee or fireman while engaged in the
performance or his official duties.
(9) The offence of murder was committed by a
person in, or who has escaped from, the lawful custody of a peace officer or
place of lawful confinement.
245 (10) The murder was committed for the
purpose of avoiding, interfering with, or preventing a lawful arrest or custody
in a place of lawful confinement, of himself or another." The Supreme
Court of Georgia in Arnold v. State(1), held unconstitutional the portion
(within brackets) of the first circumstances encompassing persons who have a
"substantial history of serious assaultive criminal convictions" but
did not set clear and objective standards.
The amended statute, also, provided for a
bifurcated trial and a pre-sentence hearing. It also provides for an automatic
appeal of death sentence to the Supreme Court of Georgia, which may or may not
affirm the death sentence. The appellate court is also required to include
reference to similar cases that the court considered.
The defendant (accused) in that case was
convicted of two counts of armed robbery and two counts of murder. The accused
had committed the murders for the purpose of receiving money and an automobile
of one of the victims.
After reviewing the trial record, the Georgia
Supreme Court affirmed the convictions and the imposition of death sentences
for murder, only. The constitutional validity of the amended statutory scheme
of Georgia was challenged before the Supreme Court of U.S.A. on the ground that
the imposition of the death penalty for the crime of murder under the Georgia
statute violated the prohibition against the infliction of cruel and unusual
punishment under the Eighth and Fourteenth Amendments.
Likewise in the companion case Proffitt v.
Florida (2), the Florida Legislature adopted new statutes that authorised the
imposition of the death penalty on those convicted of first-degree murders.
Under the new Florida statutes, if a defendant (accused) is found guilty of
first-degree murder, a separate presentence hearing is held before the jury,
where arguments may be presented and where any evidence deemed relevant to
sentencing may be admitted and must include matters relating to eight
aggravating and seven mitigating circumstances specified in the statutes, the
jury is directed to weigh such circumstances and return an advisory verdict as
to the sentence.
__________________ (1) 236 Ga 534, 540, 224
SE 2d 386, 391 (1976) (2) 428 US 242, 49 L. Ed 2d 913 (1976).
246 The actual sentence is, however,
determined by the trial judge, who is also directed to weigh the statutory
aggravating and mitigating circumstances. If a death sentence is imposed, the
trial court must set forth in writing its fact findings that sufficient
statutory aggravating circumstances exist and are not outweighed by statutory
mitigating circumstances. Just as in the Georgia statute, a death sentence is
to be automatically reviewed by the Supreme Court of Florida. Under this new
statutory scheme, the Florida Court found Proffitt (defendant) guilty of
first-degree murder and sentenced him to death on the finding that these
aggravating circumstances were established :
"(1) The murder was premeditated and
occurred in the course of a felony (burglary);
(2) the defendant had the propensity to
commit murder;
(3) the murder was especially heinous,
atrocious, and cruel ; and (4) the defendant knowingly, through his intentional
act, had created a great risk of serious bodily harm and death to many
persons." The trial judge also found specifically that none of the
statutory mitigating circumstances existed. The Supreme Court of Florida
affirmed the death sentence. Before the Supreme Court of U.S.A. the
constitutional validity of the imposition of death penalty for the crime of
murder under the Florida statutes was challenged on the same ground as in Gregg
v. Georgia. The Supreme Court of U.S.A. in both the aforesaid cases negatived
the challenge to the statutes and upheld their validity.
It may be recalled that in Furman, that Court
had held that if clear, definite and articulate standards channeling the
sentencing discretion for imposition of the death penalty are not laid down in
a statute, it would violate the Eighth and Fourteenth Amendments. It may be
noted that the aggravating circumstance No. (7) is couched in a very wide and
elastic language. The expressions "outrageously or wantonly vile",
"horrible or inhuman" employed therein are of the widest amplitude
and give this aggravating circumstance the character of an omnibus clause.
Likewise, 247 in the Florida statute, the scope of the words "especially
heinous, atrocious and cruel" was equally large and imprecise.
It can be seriously questioned whether these
extremely elastic standards really exclude the uncontrolled exercise of
sentencing discretion so as to meet the requirements of Furman.
In Gregg v. Georgia, the petitioner attacked
the seventh statutory aggravating circumstance which authorises imposition of
the death penalty if the murder was "outrageously, or wantonly vile,
horrible or inhuman" on the ground that it was so broad that capital
punishment could be imposed by its application in any murder case. Stewart, J.,
speaking for himself and for Powell and Stevens, JJ., got over this attack, in
three ways:
Firstly, by reading down the concerns
expressed in Furman. In this connection, Stewart, J. said, all that Furman
mandates is that discretion in so grave a matter must be suitably directed
"so as to minimize the risk of wholly arbitrary and capricious action."
This was, if we may say so with respect, an admission of the fact that a
considerable range of sentencing discretion has perforce to be left with the
sentencing body to be exercised by it according to its own good sense and
reason, and that no standards howsoever meticulously drafted can totally
exclude scope for arbitrary and capricious action.
The second reason given to parry this attack
was of a general nature. It was observed:
"As a general proposition these concerns
(expressed in Furman) are best met by a system that provides for a bifurcated
proceeding at which the sentencing authority is apprised of the information
relevant to the imposition of sentence and provided with standards to guide its
use of the information." The third course adopted to foil the attack was:
"It is, of course, arguable that any
murder involves depravity of mind or an aggravated battery.
But this language need not be construed in
this way, and there is no reason to assume that the Supreme Court of Georgia
will adopt such an open-ended construction," 248 White, J. with whom the
Chief Justice and Rehnquist, J.
joined, negatived the change of these
standards being vague and incomplete, with these observations:
"The argument is considerably overstated
The Georgia Legislature has plainly made an effort to guide the jury in the
exercise of its discretion, while at the same time permitting the jury to
dispense mercy on the basis of factors too intangible to write into a statute,
and I cannot accept the naked assertion that the effort is bound to fail. As
the types of murders for which the death penalty may be imposed became more
narrowly defined and are limited to those which are particularly serious or for
which the death penalty is particularly appropriate as they are in Georgia by
reasons of the aggrvating-circumstance requirement, it becomes reasonable to
expect that Georgia's current system would escape the infirmities which
invalidated its previous system under Furman. Indeed, if the Georgia Supreme
Court properly performs the task assigned to it under the Georgia statutes,
death sentences imposed wantonly or freakishly for any given category of crime
will be set aside." Similarly, in Proffit v. Florida, it was contended
that the enumerated aggravating and mitigating circumstances in the Florida
statute are so vague and so broad that virtually "any capital defendant
becomes a candidate for the death penalty". In particular, the petitioner
attacked the eighth and third statutory aggravating circumstances which authorise
the death penalty to be imposed if the crime is "especially heinous,
atrocious, or cruel" or if "the defendant knowingly created a great
risk of death to many persons".
Agreeing with the Supreme Court of Florida,
the Supreme Court of U.S.A. recognised that "while it is arguable that all
killing are atrocious, still we believe that the Legislature intended something
especially heinous, atrocious, of cruel" when it authorised the death
penalty for first-degree murder. As a consequence, the Court has indicated that
the eighth statutory provision is directed only at "the conscienceless or
pitiless crime which is unnecessarily tortuous to the victim".
249 It appears to us that in Gregg v. Georgia
and the companion cases, the Supreme Court of U.S.A. was obliged to read down
the requirements of Furman and to accept these broadly worded, looseended and
not-all-inclusive 'standards' because in the area of sentencing discretion, if
it was to retain its judicial character, exhaustive standardisation or perfect
regulation was neither feasible nor desirable.
Moreover, over-standardisation of the
sentencing process tends to defeat its very purpose, and may actually produce
opposite results.
Messinger and Bittner's Criminology Year Book
(ibid) Albert W. Alcherler's article at page 421 highlights this danger, by
taking, inter alia, the example of the guided- discretion capital punishment
statutes favoured by the Supreme Court in Gregg v. Georgia and its companion
cases, as follows:
A defendant convicted of capital murder might
wish to make the following speech to the jury about to consider whether capital
punishment should be imposed:
"I am deeply sorry for my crime which I
recognize was about as bad as any that can be imagined. I did, in fact, go to
the police station shortly after the killing to surrender and make a full
confession.
Although I have done some terrible things in
my life you may wish to know, before deciding whether I should live or die,
that I have also done some good. I once risked my life in combat to save five
comrades-an action for which I was awarded the Silver Star-and for the last 10
years I have personally cared for my invalid mother while supporting 5 younger
brothers and sisters.
"The mitigating factors listed in
today's capital punishment statutes are sometimes quite general, but none that
I have seen in any statute would permit a jury to consider any of the
circumstances mentioned in this defendant's speech (or, for that matter any
other evidence of pre-crime virtue or past-crime remorse).
Apparently the Florida statute's upheld in
Proffitt v. Florida would not; yet the Supreme Court plurality, seemingly
oblivious to the 250 statutes limitations, declared in a companion case, 'A
jury must be allowed to consider on the basis of all relevant evidence not only
why a death sentence should be imposed, but also why it should not be
imposed." (Jurek v.Texas.(1) Critically examined, it is clear that the
decisions in Gregg v.Georgia and its companion cases demonstrate the truth of
what we have said earlier, that it is neither practicable nor desirable to
imprison the sentencing discretion of a judge or jury in the straitjacket of
exhaustive and rigid standards, Nevertheless, these decisions do show that it
is not impossible to lay down broad guidelines as distinguished from ironcased
standards, which will minimise the risk of arbitrary imposition of death
penalty for murder and some other offences under the Penal Code.
This takes us to the question of indicating
the broad criteria which should guide the Courts in the matter of sentencing a
person convicted of murder under Section 302, Penal Code. Before we embark on
this task, it will be proper to remind ourselves, again that "while we
have an obligation to ensure that the constitutional bounds are not over- reached,
we may not act as judges as we might as legislatures."(2) In Jagmohan,
this Court had held that this sentencing discretion is to be exercised
judicially on well-recognised principles, after balancing all the aggravating
and mitigating circumstances of the crime. By "well-recognised
principles" the Court obviously meant the principles crystallised by
judicial decisions illustrating as to what were regarded as aggravating or
mitigating circumstances in those eases. The legislative changes since
Jagmohan-as we have discussed already-do not have the effect of abrogating or
nullifying those principles. The only effect is that the application of those
principles is now to be guided by the paramount beacons of legislative policy
discernible from Sections 354 (3) and 235 (2), namely: (1) The extreme penalty
can be inflicted only in gravest cases of extreme culpability; (2) In making
choice of the sentence, in addition to the circumstances of the offence, due
regard must be paid to the circumstances of the offences, also.
__________________________ (1) 428 US 262,
271(1976).
(2) Per Stewart. J. in Gregg. v. Georgia.
251 We will first notice some of the
aggravating circumstances which, in the absence of any mitigating
circumstances, have been regarded as an indication for imposition of the
extreme penalty.
Pre-planned, calculated, cold-blooded murder
has always been regarded as one of an aggravated kind. In Jagmohan, it was
reiterated by this Court that if a murder is "diabolically conceived and
cruelly executed", it would justify the imposition of the death penalty on
the murderer.
The same principle was substantially
reiterated by V.R. Krishna Iyer, J., speaking for the Bench, in Ediga Anamma,
in these terms:
"The weapons used and the manner of
their use, the horrendous features of the crime and hapless, helpless state of
the victim, and the like, steel the heart of the law for a sterner
sentence." It may be noted that this indicator for imposing the death
sentence was crystallised in that case after paying due regard to the shift in
legislative policy embodied in Section 354(3) of the Code of Criminal
Procedure, 1973, although on the date of that decision (February 11, 1974),
this provision had not come into force. In Paras Ram's case, also, to which a
reference has been made earlier, it was emphatically stated that a person who
in a fit of anti- social piety commits "blood-curdling butchery" of
his child, fully deserves to be punished with death. In Rajendra Prasad,
however, the majority (of 2:1) has completely reversed the view that had been
taken in Ediga Anamma, regarding the application of Section 354(3) on this
point.
According to it, after the enactment of
Section 354(3) 'murder most foul' is not the test. The shocking nature of the
crime or the number of murders committed is also not the criterion. It was said
that the focus has now completely shifted from the crime to the criminal.
"Special reasons" necessary for imposing death penalty "must
relate not to the crime as such but to the criminal".
With great respect, we find ourselves unable
to agree to this enunciation. As we read Sections 354(3) and 235(2) and other
related provisions of the Code of 1973, it is quite clear to us that for making
the choice of punishment or for ascertaining the existence or absence of
"special reasons" in that context, the Court must pay due regard both
to the crime and the criminal. What is the relative weight to be given to the
aggravating and mitigating factors, 252 depends on the facts and circumstances
of the particular case. More often than not, these two aspects are so
intertwined that it is difficult to give a separate treatment to each of them.
This is so because 'style is the man'. In many cases, the extremely cruel or
beastly manner of the commission of murder is itself a demonstrated index of
the depraved character of the perpetrator. That is why, it is not desirable to
consider the circumstances of the crime and the circumstances of the criminal
in two separate water-tight compartments. In a sense, to kill is to be cruel
and, therefore, all murders are cruel. But such cruelty may vary in its degree
of culpability. And it is only when the culpability assumes the proportion of
extreme depravity that "special reasons" can legitimately be said to
exist.
Drawing upon the penal statutes of the States
in U.S.A. framed after Furman v. Georgia, in general, and clauses (2)(a), (b),
(c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the
Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating
circumstances".
"Aggravating circumstances: A Court may,
however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after
previous planning and involves extreme brutality; or (b) if the murder involves
exceptional depravity; or (c) if the murder is of a member of any of the armed
forces of the Union or of a member of any police force or of any public servant
and was committed.
(i) while such member or public servant was
on duty; or (ii) in consequence of anything done or attempted to be done by
such member or public servant in the lawful discharge of his duty as such
member or public servant whether at the time of murder he was such member or
public 253 servant, as the case may be, or had ceased to be such member or
public servant; or (d) if the murder is of a person who had acted in the lawful
discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973,
or who had rendered assistance to a Magistrate or a police officer demanding
his aid or requiring his assistance under Section 37 and Section 129 of the
said Code." Stated broadly, there can be no objection to the acceptance of
these indicators but as we have indicated already, we would prefer not to
fetter judicial discretion by attempting to make an exhaustive enumeration one
way or the other.
In Rajendra Prasad, the majority said:
"It is constitutionally permissible to swing a criminal out of corporeal
existence only if the security of State and society, public order and the
interests of the general public compel that course as provided in Article 19(2)
to (6)." Our objection is only to the word "only". While it may
be conceded that a murder which directly threatens, or has an extreme
potentiality to harm or endanger the security of State and society, public
order and the interests of the general public, may provide "special
reasons" to justify the imposition of the extreme penalty on the person
convicted of such a heinous murder, it is not possible to agree that imposition
of death penalty on murderers who do not fall within this narrow category is
constitutionally impermissible. We have discussed and held above that the
impugned provisions in Section 302, Penal Code, being reasonable and in the
general public interest, do not offend Article 19, or its 'ethos'; nor do they
in any manner violate Articles 21 and 14. All the reasons given by us for
upholding the validity of Section 302, Penal Code, fully apply to the case of
Section 354(3), Code of Criminal Procedure, also. The same criticism applies to
the view taken in Bishnu Deo Shaw v. State of West Bengal, (1) which follows
the dictum in Rajendra Prasad (ibid).
In several countries which have retained
death penalty, preplanned murder for monetary gain, or by an assassin hired for
___________________ (1) [1979] S.C.C. 714.
254 monetary reward is, also, considered a
capital offence of the first-degree which, in the absence of any ameliorating
circumstances, is punishable with death. Such rigid categorisation would
dangerously overlap the domain of legislative policy. It may necessitate, as it
were, a redefinition of 'murder' or its further classification.
Then, in some decisions, murder by fire-arm,
or an automatic projectile or bomb, or like weapon, the use of which creates a
high simultaneous risk of death or injury to more than one person, has also
been treated as an aggravated type of offence. No exhaustive enumeration of
aggravating circumstances is possible. But this much can be said that in order
to qualify for inclusion in the category of "aggravating
circumstances" which may form the basis of 'special reasons' in Section
354(3), circumstances found on the facts of a particular case, must evidence
aggravation of an abnormal or special degree.
Dr. Chitaley has suggested these mitigating
factors:
"Mitigating circumstances: In the
exercise of its discretion in the above cases, the Court shall take into
account the following circumstances:
(1) That the offence was committed under the
influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is
young or old, he shall not be sentenced to death.
(3) The probability that the accused would
not commit criminal acts of violence as would constitute a continuing threat to
society.
(4) The probability that the accused can be
reformed and rehabilitated. The State shall by evidence prove that the accused
does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of
the case the accused believed that he was morally justified in committing the
offence.
(6) That the accused acted under the duress
or domination of another person.
255 (7) That the condition of the accused
showed that he was mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct." We will do no more
than to say that these are undoubtedly relevant circumstances and must be given
great weight in the determination of sentence. Some of these factors like
extreme youth can instead be of compelling importance. In several States of
India, there are in force special enactments, according to which a 'child',
that is, 'a person who at the date of murder was less than 16 years of age',
cannot be tried, convicted and sentenced to death or imprisonment for life for
murder, nor dealt with according to the same procedure as an adult. The special
Acts provide for a reformatory procedure for such juvenile offenders or
children.
According to some Indian decisions, the
post-murder remorse, penitance or repentence by the murderer is not a factor
which may induce the Court to pass the lesser penalty (e.g. Mominaddi Sardar).
But those decisions can no longer be held to be good law in views of the
current penological trends and the sentencing policy outlined in Section 235(2)
and 354(3). We have already extracted the view of A.W. Alchuler in Cr. Y.E. by
Messinger and Bittner (ibid), which are in point.
There are numerous other circumstances
justifying the passing of the lighter sentence; as there are countervailing
circumstances of aggravation. "We cannot obviously feed into a judicial
computer all such situations since they are astrological imponderables in an
imperfect and undulating society." Nonetheless, it cannot be
overemphasised that the scope and concept of mitigating factors in the area of
death penalty must receive a liberal and expansive construction by the courts
in accord with the sentencing policy writ large in Section 354(3). Judges
should never be blood-thirsty.
Hedging of murderers has never been too good
for them. Facts and figures, albeit incomplete, furnished by the Union of
India, show that in the past, Courts have inflicted the extreme penalty with
extreme infrequency-a fact which attests to the caution and compassion which
they have always brought to bear on the exercise of their sentencing discretion
in so grave a matter. It is, therefore, imperative to voice the concern that
courts, aided by the broad illustrative guidelines 256 indicated by us, will
discharge the onerous function with evermore scrupulous care and humane
concern, directed along the highroad of legislative policy outlined in Section
354(3), viz, that for persons convicted of murder, life imprisonment is the
rule and death sentence an exception. A real and abiding concern for the dignity
of human life postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably foreclosed.
For all the foregoing reasons, we reject the
challenge to the constitutionality of the impugned provisions contained in
Sections 302, Penal Code, and 354(3) of the Code of Criminal Procedure, 1973.
The writ petitions and the connected
petitions can now be heard and disposed of, on their individual merits, in the
light of the broad guidelines and principles enunciated in this judgment.
BHAGWATI, J. These writ petitions challenge
the constitutional validity of Section 302 of the Indian Penal Code read with
Section 354, sub-section (3) of the Code of Criminal Procedure in so far as it
provides death sentence as an alternative punishment for the offence of murder.
There are several grounds on which the
constitutional validity of the death penalty provided in Section 302 of the
Indian Penal Code read with section 354 sub-section (3) of the Code of Criminal
Procedure is assailed before us, but it is not necessary to set them out at
this stage, for I propose to deal with them when I examine the arguments
advanced on behalf of the parties. Suffice it to state for the present that I
find, considerable force in some of these grounds and in my view, the
constitutional validity of the death penalty provided as an alternative
punishment in section 302 of the Indian Penal Code read with section 354
sub-section (3) of the Code of Criminal Procedure cannot be sustained. I am
conscious that my learned brethren on the Bench who constitute the majority
have taken a different view and upheld the constitutional validity of the death
penalty but, with the greatest respect to them and in all humility, I cannot
persuade myself to concur with the view taken by them. Mine is unfortunately a
solitary dissent and it is therefore, with a certain amount of hesitation that
I speak but my initial diffidence is overcome by my deep and abiding faith in
the dignity of man and worth of the human person and passionate 257 conviction
about the true spiritual nature and dimension of man. I agree with Bernard Shaw
that "Criminals do not die by the hands of the law. They die by the hands
of other men.
Assassination on the scaffold is the worst
form of assassination because there it is invested with the approval of the
society.....Murder and capital punishment are not opposites that cancel one
another but similars that breed their kind." It was the Father of the
nation who said years ago, reaffirming what Prince Satyavan said on capital
punishment in Shanti Parva of Mahabharata that "Destruction of individuals
can never be a virtuous act" and this sentiment has been echoed by many
eminent men such as Leonardo Da Vinci, John Bright, Victor Hugo and Berdyaev.
To quote again from Bernard Shaw from Act IV of his play "Caesar and
Cleopatra:
"And so to the end of history, murder
shall breed murder, always in the name of right and honour and peace, until the
Gods are tired of blood and-create a race that can understand." I share
this sentiment because I regard men as an embodiment of divinity and I am
therefore morally against death penalty. But my dissent is based not upon any
ground of morality or ethics but is founded on constitutional issues, for as I
shall presently show, death penalty does not serve any social purpose or
advance any constitutional value and is totally arbitrary and unreasonable so
as to be violative of Articles 14, 19 and 21 of the Constitution.
Before I proceed to consider the various
constitutional issues arising out of the challenge to the validity of the death
penalty, I must deal with a preliminary objection raised on behalf of the
respondents against our competence to entertain this challenge. The learned
counsel appearing on behalf of the respondents urged that the question of
constitutional validity of the death penalty stood concluded against the
petitioners by the decision of a constitution bench of five Judges of this
Court in Jagmohan v. State of U.P.(1) and it could not therefore be allowed to
be reagitated before this Bench consisting of the same number of Judges. This
Bench, contended the respondents, was bound by the decision in Jagmohan's case (supra)
and the same issue, once decided in Jagmohan's case (supra), could not be
raised again and reconsidered by this Bench. Now it is true that ______________
(1) AIR 1973 SC 947.
258 the question of constitutional validity
of death penalty was raised in Jagmohan's case (supra) and this Court by a
unanimous judgment held it to be constitutionally valid and, therefore,
ordinarily, on the principle of stare decisis, we would hold ourselves bound by
the view taken in that case and resist any attempt at reconsideration of the
same issue.
But there are several weighty considerations
which compel us to depart from this precedential rule in the present case.
It may be pointed out that the rule of
adherence to precedence is not a rigid and inflexible rule of law but it is a
rule of practice adopted by the courts for the purpose of ensuring uniformity
and stability in the law. Otherwise, every Judge will decide an issue according
to his own view and lay down a rule according to his own perception and there
will be no certainty and predictability in the law, leading to chaos and
confusion and in the process, destroying the rule of law. The labour of the
judges would also, as pointed out by Cardozo J. in his lectures of "Nature
of Judicial Process" increase" almost to the breaking point if every
past decision could be reopened in every case and one could not lay one's own
course of bricks on the secure foundation of the courses laid by others who had
gone before him." But this rule of adherence to precedents, though a
necessary tool in what Maitland called "the legal smithy", is only a
useful servant and cannot be allowed to turn into a tyrannous master. We would
do well to recall what Brandies J. said in his dissenting judgment in State of
Washington v. Dawson and company,(1) namely; "Stare decisis is ordinarily
a wise rule of action. But it is not a universal and inexorable command."
If the Rule of stare decisis were followed blindly and mechanically, it would
dwarf and stultify the growth of the law and affect its capacity to adjust
itself to the changing needs of the society. That is why Cardozo pointed out in
his New York State Bar Address:
"That was very well for a time, but now
at last the precedents have turned upon us and are engulfing and annihilating
us-engulfing and annihilating the very devotees that worshipped at their
shrine. So the air is full of new cults that disavow the ancient faiths. Some
of them tell us that instead of seeking certainty in the word, the outward
sign, we are to seek for something deeper, a certainty of ends and aims. Some
of them tell us that certainty is merely relative and temporary, a writing on
the sands to _________ (1) 264 US 646 : 68 Lawyers Edu. 219 259 be effected by
the advancing tides. Some of them even go so far as to adjure us to give over
the vain quest, to purge ourselves of these yearnings for an unattainable
ideal, and to be content with an empiricism that is untroubled by strivings for
the absolute. With all their diversities of form and doctrine, they are at one
at least in their emphasis upon those aspects of truth that are fundamental and
ultimate. They exemplify the method approach, the attitude and outlook, the
concern about the substance of things, which in all its phases and disguises is
the essence of philosophy." We must therefore rid stare decisis of
something of its petrifying rigidity and warn ourselves with Cardozo that
"in many instances the principles and rules and concepts of our own
creation are merely apercus and glimpses of reality" and remind oursevels
"of the need of reformulating them or at times abandoning them altogether
when they stand condemned as mischievous in the social consciousness of the
hour,...the social consciousness which it is our business as Judges to
interpret as best as we can." The question at issue in the present writ
petitions is one of momentous significance namely, whether the state can take
the life of an individual under the cover of judicial process and whether such
an act of killing by the State is in accord with the constitutional norms and
values and if, on an issue like this, a Judge feels strongly that it is not
competent to the State to extinguish the flame of life in an individual by
employing the instrumentality of the judicial process, it is his bounden duty,
in all conscience, to express his dissent, even if such killing by the State is
legitimized by a previous decision of the court. There are certain issues which
transcend technical considerations of stare decisis and if such an issue is
brought before the court, it would be nothing short of abdication of its
constitutional duty for the court to consider such issue by taking refuge under
the doctrine of stare decisis. The court may refuse to entertain such an issue
like the constitutional validity of death penalty because it is satisfied that
the previous decision is correct but it cannot decline to consider it on the
ground that it is barred by the rule of adherence to precedents. Moreover, in
the present case, there are two other supervening circumstances which justify,
nay compel, reconsideration of the decision in Jagmohan's case (supra). The
first is the introduction of the new Code of Criminal Procedure in 1973 which
by sec- 260 tion 354 sub-section (3) has made life sentence the rule in case of
offences punishable with death or in the alternative imprisonment for life and
provided for imposition of sentence of death only in exceptional cases for
special reasons. I shall presently refer to this section enacted in the new
Code of Criminal Procedure and show how, in view of that provision, the imposition
of death penalty has become still more indefensible from the constitutional
point of view. But the more important circumstance which has supervened since
the decision in Jagmohan's case (supra) is the new dimension of Articles 14 and
21 unfolded by this Court in Maneka Gandhi v. Union of India.(1) This new
dimension of Articles 14 and 21 renders the death penalty provided in section
302 of the Indian Penal Code read with sec. 354 (3) of the Code of Criminal
Procedure vulnerable to attack on a ground not available at the time when
Jagmohan's case (supra) was decided. Furthermore, it may also be noted, and
this too is a circumstance not entirely without significance, that since
Jagmohan's case (supra) was decided, India has ratified two international instruments
on human rights and particularly the International Convenant on Civil and
Political Rights. We cannot therefore consider ourselves bound by the view
taken in Jagmohan's case (supra) and I must proceed to consider the issue as
regards the constitutional validity of death penalty afresh, without being in
any manner inhibited by the decision in Jagmohan's case (supra).
It must be realised that the question of
constitutional validity of death penalty is not just a simple question of
application of constitutional standards by adopting a mechanistic approach. It
is a difficult problem of constitutional interpretation to which it is not
possible to give an objectively correct legal anwer. It is not a mere
legalistic problem which can be answered definitively by the application of
logical reasoning but it is a problem which raises profound social and moral
issues and the answer must therefore necessarily depend on the judicial
philosophy of the Judge. This would be so in case of any problem of constitutional
interpretation but much more so would it be in a case like the present where
the constitutional conundrum is enmeshed in complex social and moral issues
defying a formalistic judicial attitude. That is the reason why in some
countries like the United States and Canada where _________________ (1) [1978]
2 SCR 663.
261 there is power of judicial review, there
has been judicial disagreement on the constitutionality of death penalty. On an
issue like this, as pointed out by David Pannick in his book on "Judicial
Review of the Death Penalty" judicial conclusions emanate from the
judicial philosophy of those who sit in judgment and not from the language of
the Constitution." But even so, in their effort to resolve such an issue
of great constitutional significance, the Judges must take care to see that
they are guided by "objective factors to the maximum possible
extent." The culture and ethos of the nation as gathered from its history,
its tradition and its literature would clearly be relevant factors in adjudging
the constitutionality of death penalty and so would the ideals and values
embodied in the Constitution which lays down the basic frame-work of the social
and political structure of the country, and which sets out the objectives and
goals to be pursued by the people in a common endeavour to secure happiness and
welfare of every member of the society. So also standards or norms set by
International organisations and bodies have relevance in determining the
constitutional validity of death penalty and equally important in construing
and applying the equivocal formulae of the Constitution would be the
"wealth of non-legal learning and experience that encircles and
illuminates" the topic of death penalty. "Judicial dispensers",
said Krishna Iyer, J. in Dalbir Singh and Others v. State of Punjab(1) "do
not behave like cavemen but breathe the fresh air of finer culture." There
is no reason why, in adjudicating upon the constitutional validity of death
penalty. Judges should not obtain assistance from the writings of men like
Dickens, Tolstoy, Dostoyevsky, Koestter and Camus or from the investigations of
social scientists or moral philosophers in deciding the circumstances in which
and the reasons why the death penalty could be seen as arbitrary or a denial of
equal protection. It is necessary to bear in mind the wise and felicitous words
of Judge Learned Hand in his "Spirit of Liberty" that while passing
on question of constitutional interpretation, it is as important to a Judge:
".....to have atleast a bowing
acquaintance with Acton and Maitland. With Thucydides, Gibbon and Carlyle, with
Homer, Dante Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais,
with Plato, Bacon, Hume 262 and Kant, as with the books which have been
specifically written on the subject. For in such matters everything turns upon
the spirit in which he approaches the question before him. The words he must
construe are empty vessels into which he can pour nearly anything he will. Men
do not gather figs of thistles, nor supply institutions from judges whose
outlook is limited by parish or class. They must be aware that there are before
them more than verbal problems; more than final solutions cast in
generalisations of universal applicability." Constitutional law raises, in
a legal context, problems of economic, social, moral and political theory and
practice to which non-lawyers have much to contribute. Non-lawyers have not
reached unanimity on the answers to the problems posed;
nor will they ever do so, But when judges are
confronted by issues to which there is no legal answer, there is no reason
(other than a desire to maintain a fiction that the law provides the answer)
for judicial discretion to be exercised in a vacuum, immune from non-legal
learning and extra-legal dispute. "Quotations from noble minds are not for
decoration (in hard constitutional cases) but for adaptation within the
framework of the law." Vide: David Pannick on 'Judicial Review of the
Death Penalty.' The Judges must also consider while deciding an issue of constitutional
adjudication as to what would be the moral, social and economic consequences of
a decision either way. The consequences of course do not alter the meaning of a
constitutional or statutory provision but they certainly help to fix its meaning.
With these prefatory observations I shall now proceed to consider the question
of constitutional validity of death penalty.
I shall presently refer to the constitutional
provisions which bear on the question of constitutionality of death penalty,
but before I do so, it would be more logical if I first examine what is the
international trend of opinion in regard to death penalty. There are quite a
large number of countries which have abolished death penalty de jure or in any
event, de facto The Addendum to the Report of the Amnesty International on
"The Death Penalty" points out that as on 30th May 1979, the
following countries have abolished death penalty for all offences : Australia,
Brazil, Colombia, Costa Rica, Denmark, Dominican Republic, Ecuador, Fiji,
Finland, Federal Republic of Germany, Honduras, Iceland, Luxembourg, Norway,
Portugal, Sweden, Uruguay and Venezuela, and according 263 to this Report,
Canada, Italy, Malta, Netherlands, Panama, Peru, Spain and Switzerland have
abolished death penalty in time of peace, but retained it for specific offences
committed in time of war. The Report also states that Algeria, Belgium, Greece,
Guyana, Ivory Coast, Seychelles and Upper Volta have retained the death penalty
on their statute book but they did not conduct any executions for the period
from 1973 to 30th May 1979. Even in the United States of America there are
several States which have abolished death penalty and so also in the United
Kingdom, death penalty stands abolished from the year 1965 save and except for
offences of treason and certain forms of piracy and offences committed by
members of the armed forces during war time. It may be pointed out that an
attempt was made in the United Kingdom in December 1975 to reintroduce death
penalty for terrorist offences involving murder but it was defeated in the
House of Commons and once again a similar motion moved by a conservative member
of Parliament that "the sentence of capital punishment should again be
available to the courts" was defeated in the House of Commons in a free
vote on 19th July 1979. So also death penalty has been abolished either
formally or in practice in several other countries such as Argentina, Bolivia,
most of the federal States of Mexico and Nicaragua, Israel, Turkey and
Australia do not use the death penalty in practice. It will thus be seen that
there is a definite trend in most of the countries of Europe and America
towards abolition of death penalty.
It is significant to note that the United
Nations has also taken great interest in the abolition of capital punishment.
In the Charter of the United Nations signed in 1945, the founding States
emphasized the value of individuals's life, stating their will to "achieve
international co-operation...in promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race,
sex, language or religion." Though the San Francisco Conference did not
address itself to the issue of death penalty specifically, the provisions of
the charter paved the way for further action by United Nations bodies in the
field of human rights, by establishing a Commission on Human Rights and, in
effect, charged that body with formulating an International Bill of Human
Rights. Meanwhile the Universal Declaration of Human Rights was adopted by the
General Assembly in its Resolution 217 A (III) of 10 December 1948. Articles 3
and 5 of the Declaration provided:
3. "Everyone has the right to life,
liberty and security of person."
5. "No one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment.
The United Nations' position on the question
of death penalty was expected to be stated more specifically in the
International Covenant on Civil and Political Rights, the drafting of which had
been under way since the first session of the Commission on Human Rights in
1947. But during the 11 year period of drafting of the relevant provision of
the Covenant, two main approaches to the issue of capital punishment became
evident: one stressed the need for barring the death penalty and the second
placed emphasis on restricting its application to certain cases. The proponents
of the first position suggested either the total abolition of the death penalty
or its abolition in time of peace or for political offences. This approach was
however regarded as unfeasible, since many countries, including abolitionist
ones, felt that the provision for an outright ban on the death penalty would
prevent some States from ratifying the Covenant, but at the same time, it was
insisted by many countries that the Covenant should not create the impression
of supporting or perpetuating death penalty and hence a provision to this
effect should be included. The result was that the second approach stressing
everyone's right to life and emphasizing the need for restricting the
application of capital punishment with a view to eventual abolition of the
death penalty, won greater support and Article 6 of the Covenant as finally
adopted by the General Assembly in its resolution 2000(XXX) of 16 December 1966
provided as follows :
1. Every human being has the inherent right
to life.
This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
2. In countries which have not abolished the
death penalty, sentence of death may be imposed only for the most serious
crimes in accordance with the law in force at the time of the commission of the
crime and not contrary to the provisions of the present Covenant and to the
Convention on the Prevention and Punishment of the Crime of Genocide. This 265
penalty can only be carried out pursuant to a final judgment rendered by a
competent court.
3. When deprivation of life constitutes the
crime of genocide, it is understood, that nothing in this article shall
authorise any State Party to the present Covenant to derogate in any way from
any obligatlon assumed under the provisions of the Convention on the Prevention
and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the
right to seek, pardon or commutation of the sentence.
Amnesty pardon or commutation of the sentence
of death may be granted in all cases.
5. Sentence of death shall not be imposed for
crimes committed by persons below eighteen years of age and shall not be
carried out on pregnant women.
6. Nothing in this article shall be invoked
to delay or prevent the abolition of capital punishment by any State Party to
the present Covennt." Article 7 of the Covenant corresponding to Article 5
of the Universal Declaration of Human Rights reaffirmed that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment.
So deep and profound was the United Nation's
concern with the issue of death penalty that the General Assembly in its
resolotion 1396 (XIV) of 20 November, 1959 invited the Economic and Social
Council to initiate study of the question of capital punishment, of the laws
and practices relating thereto, and of the effects of capital punishment and
the abolition thereof on the rate of criminality.
Pursuant to this resolution, the Economic and
Social Council activised itself on this issue and at its instance a substantive
report report was prepared by the noted French jurist Marc Ancel. The report
entitled "Capital Punishment" was the first major survey of the
problem from an international stand point on the deterrent aspect of the death
penalty and in its third chapter, it contained a cautious statement "that
the deterrent effect of the death penalty is, to say the least, not demons- 266
trated". This view had been expressed not only by abolitionists countries
in their replies to the questionaires but also by some retentionist countries.
The Ancel report alongwith the Report of the ad hoc Advisory Committee of
Experts on the Prevention of Crime and the Treatment of Offenders which
examined it in January 1963 was presented to the Economic and Social Council at
its 35th Session when its Resolution 934 (XXXV) of 9th April 1963 was adopted.
By this Resolution the Economic and Social Council urged member governments
inter alia to keep under review the efficacy of capital punishment as a
deterrent to crime in their countries and to conduct research into the subject
and to remove this punishment from the criminal law concerning any crime to
which it is, in fact, not applied or to which there is no intention to apply
it. This Resolution clearly shows that there was no evidence supporting the
supposed deterrent effect of the death penalty and that is why the Economic and
Social Council suggested further research on the topic. Moreover, the urging of
the de facto abolitionist countries by this Resolution to translate the
position into de jure terms constituted an implicit acceptance of the principle
of abolition. The same year, by Resolution 1918 (XVIII) of 5th December 1963,
the General Assembly endorsed this action of the Economic and Social Council
and requested the Economic and Social Council to invite the Commission on human
Rights to study and make recommendations on the Ancel Report and the comments
of the ad hoc Advisory Committee of Experts. The General Assembly also
requested the Secretary General to present a report on new developments through
the Economic and Social Council. Norval Morris, an American professor of
criminal law and criminology, accordingly prepared a Report entitled
"Capital Punishment; Developments 1961-1965" and amongst other
things, this Report pointed out that there was a steady movement towards
legislative abolition of capital punishment and observed with regard to the
deterrent effect of death penalty, that:
"With respect to the influence of the
abolition of capital punishment upon the incidence of murder, all of the
available data suggest that where the murder rate is increasing, abolition does
not appear to hasten the increase where the rate is decreasing abolition does
not appear to interrupt the decrease; where the rate is stable, the presence or
absence of capital punishment does not appear to affect it." 267 The
Commission on Human Rights considered this Report and adopted a draft General
Assembly Resolution which was submitted by the Economic and Social Council to
the General Assembly and on 26th November 1968, the General Assembly adopted
this draft with certain modifications as its Resolution 2393 (XXIII) inviting
member governments to take various measures and requesting the Secretary
General to invite member governments "to inform him of their present
attitude to possible further restricting the use of the death penalty or to its
total abolition" and to submit a report to the Economic and Social
Council. The Secretary General accordingly submitted his report to the Economic
and Social Council at its 50th session in 1971. This Report contained a finding
that "most countries are gradually restricting the number of offences for
which the death penalty is to be applied and a few have totally abolished
capital offences even in war times". The discussion in the Economic and
Social Council led to the adoption of Resolution 1574 (L) of 20th May 1971
which was reaffirmed by General Assembly Resolution 2857 (XXVI) of 20th
December 1971. This latter resolution clearly affirmed that:
"In order to guarantee fully the right
to life, provided for in article 3 of the Universal Declaration of Human
Rights, the main objective to be pursued is that of progressively restricting
the number of offences for which capital punishment may be imposed, with a view
to the desirability of abolishing this punishment in all countries".
(Emphasais supplied) In 1973 the Secretary
General submitted to the Economic and Social Council at its 54th session his
third report on capital punishment as requested by the Council and at this
session, the Council adopted Resolution 1745 (LIV) in which, inter alia, it
invited the Secretary General to submit to it periodic updated reports on
capital punishment at five-year intervals starting from 1975. A fourth report
on capital punishment was accordingly submitted in 1975 and a fifth one in
1980. Meanwhile the General Assembly at its 32nd Session adopted Resolution
32/61 on 8th December 1977 and this Resolution re-affirmed "the
desirability of abolishing this" that is capital "punishment" in
all countries.
268 It will thus be seen that the United
Nations has gradually shifted from the position of a neutral observer concerned
about but not committed on the question of death penalty, to a position
favouring the eventual abolition of the death penalty. The objective of the
United Nations has been and that is the standard set by the world body that
capital punishment should ultimately be abolished in all countries. This
normative standard set by the world body must be taken into account in
determining whether the death penalty can be regarded as arbitrary, excessive
and unreasonable so as to be constitutionally invalid.
I will now proceed to consider the relevant
provisions of the Constitution bearing on the question of constitutional
validity of death penalty. It may be pointed out that our Constitution is a
unique document. It is not a mere pedantic legal text but it embodies certain
human values cherished principles and spiritual norms and recognises and
upholds the dignity of man. It accepts the individual as the focal point of all
development and regards his material, moral and spiritual development as the
chief concern of its various provisions. It does not treat the individual as a
cog in the mighty all-powerful machine of the State but places him at the
centre of the constitutional scheme and focuses on the fullest development of
his personality. The Preamble makes it clear that the Constitution is intended
to secure to every citizen social, economic and political justice and equality
of status and opportunity and to promote fraternity assuring the dignity of the
individual. The Fundamental Rights lay down limitations on the power of the
legislature and the executive with a view to protecting the citizen and confer
certain basic human rights which are enforceable against the State in a court
of law. The Directive Principles of State Policy also emphasise the dignity of
the individual and the worth of the human person by obligating the State to
take various measures for the purpose of securing and protecting a social order
in which justice social, economic and political, shall inform all the
institutions of national life. What is the concept of social and economic
justice which the founding fathers had in mind is also elaborated in the
various Articles setting out the Directive Principles of State Policy. But all
these provisions enacted for the purpose of ensuring the dignity of the individual
and providing for his material, moral and spiritual development would be
Meaningless and ineffectual unless there is rule of law to invest them with
life and force.
269 Now if we look at the various
constitutional provisions including the Chapters on Fundamental Rights and
Directive Principles of State Policy, it is clear that the rule of law
permeates the entire fabric of the Constitution and indeed forms one of its
basic features. The rule of law excludes arbitrariness; its postulate is
'intelligence without passion' and 'reason freed from desire'. Wherever we find
arbitrariness or unreasonableness there is denial of the rule of law. That is
why Aristotle preferred a government of laws rather than of men. 'Law', in the
context of the rule of law, does not mean any law enacted by the legislative
authority, howsoever arbitrary or despotic it may be.
Otherwise even under a dictatorship it would
be possible to say that there is rule of law, because every law made by the
dictator howsoever arbitrary and unreasonable has to be obeyed and every action
has to be taken in conformity with such law. In such a case too even where the
political set up is dictatorial, it is law that governs the relationship
between men and men and between men and the State. But still it is not rule of
law as understood in modern jurisprudence, because in jurisprudential terms,
the law itself in such a case being an emanation from the absolute will of the
dictator it is in effect and substance the rule of man and not of law which prevails
in such a situation. What is necessary element of the rule of law is that the
law must not be arbitrary or irrational and it must satisfy the test of reason
and the democratic form of polity seeks to ensure this element by making the
framers of the law accountable to the people. Of course, in a country like the
United Kingdom, where there is no written constitution imposing fetters on
legislative power and providing for judicial review of legislation, it may be
difficult to hold a law to be invalid on the ground that it is arbitrary and
irrational and hence violative of an essential element of the rule of law and
the only remedy if at all would be an appeal to the electorate at the time when
a fresh mandate is sought at the election.
But the situation is totally different in a
country like India which has a written Constitution enacting Pundamental Rights
and conferring power on the courts to enforce them not only against the
executive but also against the legislature. The Fundamental Rights erect a protective
armour for the individual against arbitrary or unreasonable executive or
legislative action.
There are three Fundamental Rights in the
Constitution which are of prime importance and which breathe vitality in the
concept 270 of the rule of law. They are Articles 14, 19 and 21 which, in the
words of Chandrachud, C.J. in Minverva Mills case(1) constitute a golden
triangle. It is now settled law as a result of the decision of this Court in
Maneka Gandhi's case (supra) that Article 14 enacts primarily a guarantee
against arbitrariness and inhibits State action whether legislative or
executive, which suffers from the vice of arbitrariness.
This interpretation placed on Article 14 by
the Court in Maneka Gandhi's case has opened up a new dimension of that Article
which transcends the classificatory principle. For a long time in the evolution
of the constitutional law of our country, the courts had construed Article 14
to mean only this, namely, that you can classify persons and things for the
application of a law but such classification must be based on intelligible
differentia having rational relationship to the object sought to be achieved by
the law.
But the court pointed out in Maneka Gandhi's
case that Article 14 was not to be equated with the principle of
classification. It was primarily a guarantee against arbitrariness in State
action and the doctrine of classification was evolved only as a subsidiary rule
for testing or determining whether a particular State action was arbitrary or
not. The Court said "Equality is antithetical to arbitrariness. In fact,
equality and arbitrariness are sworn enemies. One belongs to the rule of law
while the other to the whim and caprice of an absolute monarch. Where an act is
arbitrary, it is implicit in it that it is unequal both according to political
logic and constitutional law and is, therefore, violative of Article 14."
The Court thus laid down that every State action must be non-arbitrary and
reasonable; if it is not, the court would strike it down as invalid.
This view was reaffirmed by the Court in
another outstanding decision in Ramana Dayaram Shetty International Airport
Authority of India & Ors. There tenders were invited by the Airport
Authority for giving a contract for running a canteen at the Bombay Airport.
The invitation for tender included a condition that the applicant must have at
least 5 years' experience as a registered 2nd class hotelier.
Several persons tendered. One was a person
who had considerable experience in the catering business but he was not a
registered 2nd class hotelier as required by the condition in the invitation to
tender. Yet his tender was accepted because it was the highest. The contract
given to him was challenged and the court held that the action of the Airport
Authority was illegal. The court pointed out that a ______________________ (1)
[1979] 3 SCR 1014.
271 new form of property consisting of
government largesse in the shape of jobs, cotracts licences, quotas, mineral
rights and other benefits and services was emerging in the social welfare State
that India was and it was necessary to develop new forms of protection in
regard to this new kind of property.
The court held that in regard to government
largesse, the discretion of the government is not unlimited in that the government
cannot give or withhold largesse in its arbitrary discretion or at its sweet
will. The government action must be based on standards that are not arbitrary
or irrational. This requirement was spelt out from the application of Article
14 as a constitutional requirement, and it was held that having regard to the
constitutional mandate of Article 14, the Airport Authority was not entitled to
act arbitrarily in accepting the tender but was bound to conform to the
standards or norms laid down by it.
The Court thus reiterated and reaffirmed its
commitment against arbitrariness in State action.
It can, therefore, now be taken to be
well-settled that if a law is arbitrary or irrational, it would fall foul of
Article 14 and would be liable to be struck down as invalid.
Now a law may contravene Article 14 because
it enacts provisions which are arbitrary; as for example, they make
discriminatory classification which is not founded on intelligible differentia
having rational relation to the object sought to be achieved by the law or they
arbitrarily select persons or things for discriminatory treatment. But there is
also another category of cases where without enactment of specific provisions
which are arbitrary, a law may still offend Article 14 because it confers
discretion on an authority to select persons or things for application of the
law without laying down any policy or principle to guide the exercise of such
discretion. Where such unguided and unstructured discretion is conferred on an
authority, the law would be violative of Article 14 because it would enable the
authority to exercise such discretion arbitrarily and thus discriminate without
reason. Unfettered and uncharted discretion conferred on any authority, even if
it be the judiciary, throws the door open for arbitrariness, for after all a
judge does not cease to be a human being subject to human limitations when he
puts on the judicial robe and the nature of the judicial process being what it
is, it cannot be entirely free from judicial subjectivism. Cardozo, J. has
frankly pointed this out in his lectures on "Nature of the Judicial
Process":
272 "There has been a certain lack of
candor in much of the discussion of the theme, or rather perhaps in the refusal
to discuss it, as if judges must lose respect and confidence by the reminder
that they are subject to human limitations... if there is anything of reality
in my analysis of the judicial process, they do not stand aloof on these chill
and distant heights; and we shall not help the cause of truth by acting and
speaking as if they do. The great tides and currents which engulf the rest of
men do not turn aside in their course and pass the judges by.
This facet of the judicial process has also
been emphasized by Richard B. Brandt in his book on "Judicial
Discretion" where he has said :
"Much of law is designed to avoid the
necessity for the judge to reach what Holmes called his 'can't helps', his
ultimate convictions or values. The force of precedent, the close applicability
of statute law, the separation of powers, legal presumptions, statutes of
limitations, rules of pleading and evidence, and above all the pragmatic
assessments of fact that point to one result whichever ultimate values be
assumed, all enable the judge in most cases to stop short of a resort to his
personal standards. When these prove unavailing, as is more likely in the case
of courts of last resort at the frontiers of the law, and most likely in a
supreme constitutional court, the judge necessarily resorts to his own scheme of
values. It may, therefore, be said that the most important thing about a judge
is his philosophy; and if it be dangerous for him to have one, it is at all
events less dangerous than the self-deception of having none.
That is why Lord Camden described the discretion
of a judge to be "the law of tyrants; it is always unknown; it is
different in different men; it is casual and depends on Constitution,Tamper,
and Passion. In the best it is often times Caprice, in the worst it is every
Vice, Folly and Passion to which human Nature is liable." Doe d. Hindson
v. Kersey (1765) at p. 53 of the pamphlet published in London by J. Wilkes in
1971 entitled "Lord Camden's Genuine Argument in giving Judgment on the
Ejectment between Hindson, and others against Kersey". Megarry J. also
points out in his delightful book "Miscellany at Law" that
"discretion is indeed a poor substitute for 273 principles, however, great
the Judge". Therefore, where discretion is conferred on an authority by a
statute, the court always strains to find in the statute the policy or
principle laid down by the legislature for the purpose of guiding the exercise
of such discretion and, as pointed out by Subba Rao, J. as he then was, the
court sometimes even tries to discover the policy or principle in the crevices
of the statute in order to save the law from the challenge of Article 14 which
would inevitably result in striking down of the law if the discretion conferred
were unguided and unfettered. But where after the utmost effort and intense
search, no policy or principle to guide the exercise of discretion can be
found, the discretion conferred by the law would be unguided and unstructured,
like a tumultuous river overflowing its banks and that would render the law
open to attack on ground of arbitrariness under Article 14.
So also Article 19 strikes against arbitrary
legislation in so far as such legislation is violative of one or the other
provision of clause (1) of that Article.
Sub-clauses (a) to (g) of clause (1) of
Article 19 enact various Fundamental freedoms; sub-clause (1) guarantees
freedom of speech and expression, sub-clause (b), freedom to assemble
peacefully and without arms; sub-clause (c), freedom to form associations or
unions; sub-clause (d), freedom to move freely throughout the territory of
India;
sub-clause (e) to reside and settle in any
part of the territory of India and sub-clause (g), freedom to practise any
profession or to carry on any occupation, trade or business. There was
originally sub-clause (f) in clause (1) of Article 19 which guaranteed freedom
to acquire, hold and dispose of property but that sub-clause was deleted by the
Constitution (Forty Fourth Amendment) Act 1978. Now the freedoms guaranteed
under these various sub-clauses of clause (1) of Article 19 are not absolute
freedoms but they can be restricted by law, provided such law satisfies the
requirement of the applicable provision in one or the other of clauses (2) to
(6) of that Article. The common basic requirement of the saving provision
enacted in clauses (2) to (6) of Article 19 is that the restriction imposed by
the law must be reasonable. If, therefore, any law is enacted by the
legislature which violates one or the other provision of clauses (1) of Article
19, it would not be protected by the saving provision enacted in clauses (2) to
(6) of that Article, if it is arbitrary or irrational, because in that event
the restriction imposed by it would a fortiorari be unreasonable.
274 The third Fundamental Right which strikes
against arbitrariness in State action is that embodied in Article
21. This Article is worded in simple language
and it guarantees the right to life and personal liberty in the following
terms.
"21. No person shall be deprived of his
life or personal liberty except according to procedure established by
law." This Article also came up for interpretation in Maneka Gandhi's case
(supra). Two questions arose before the Court in that case : one was as to what
is the content of the expression "personal liberty" and the other was
as to what is the meaning of the expression "except according to procedure
established by law". We are not concerned here with the first question and
hence I shall not dwell upon it.
But so far as second question is concerned,
it provoked a decision from the Court which was to mark the beginning of amost
astonishing development of the law. It is with this decision that the Court
burst forth into un-precedented creative activity and gave to the law a new
dimenston and a new vitality. Until this decision was given, the view held by
this Court was that Article 21 merely embodied a facet of the Diceyian concept
of the rule of law that no one can be deprived of his personal liberty by
executive action unsupported by law. It was intended to be no more than a
protection against executive action which had no authority of law. If there was
a law which provided some sort of procedure, it was, enough to deprive a person
of his life or personal liberty. Even if, to take an example cited by S.R.
Das, J, in his Judgment in A.K. Gopalan v.
State of Madras(1) the law provided that the Bishop of Rochester be boiled in
old, it would be valid under Article 21. But in Maneka Gandhi's case (supra)
which marks a watershed in the history of development of constitutional law in
our country, this Court for the first time took the view that Article 21
affords protection not only against executive action but also against
legislation and any law which deprives a person of his life or personal liberty
would be invalid unless it prescribes a procedure for such deprivation which is
reasonable fair and just. The concept of reasonableness, it was held, runs
through the entire fabric of the Constitution and it is not enough for the law
merely to provide some semblance of a procedure but the procedure for depriving
a ___________ (1) [1950] SCR 88.
275 person of his life or personal liberty
must be rasonable, fair and just. It is for the court to determine whether in a
particular case the procedure is reasonable, fair and just and if it is not,
the court will strike down the law as invalid. If therefore a law is enacted by
the legislature which deprives a person of the life-and 'life' according to the
decision of this Court in Francis Coralie Mullen's v.
Administrator, Union Territory of Delhi and
Ors.,(1) would include not merely physical existence but also the use of any
faculty or limb as also the right to live with human dignity-or any aspect of
his personal liberty, it would offend against Article 21 if the procedure
prescribed for such deprivation is arbitrary and unreasonable. The word
'procedure' in Article 21 is wide enough to cover the entire process by which
deprivation is effected and that would include not only the adjectival but also
the substantive part of the law. Take for example, a law of preventive
detention which sets out the grounds on which a person may be preventively
detained. If a person is preventively detained on a ground other than those set
out in the law, the preventive detention would obviously not be according to
the procedure prescribed by the law, because the procedure set out in the law
for preventively detaining a person prescribes certain specific grounds on
which alone a person can be preventively detained, and if he is detained on any
other ground, it would be violative of Article 21. Every facet of the law which
deprives a person of his life or personal liberty would therefore have to stand
the test of reasonableness, fairness and justness in order to be outside the
inhibition of Article 21.
It will thus be seen that the rule of law has
much greater vitality under our Constitution that it has in other countries
like the United Kingdom which has no constitutionally enacted Fundamental
Rights. The rule of law has really three basic and fundamental assumptions one
is that law making must be essentially in the hands of a democratically elected
legislature, subject of course to any power in the executive in an emergent
situation to promulgate ordinances effective for a short duration while the
legislature is not in session as also to enact delegated legislation in
accordance with the guidelines laid down by the legislature; the other is that,
even in the hands of a democratically elected legislature, there should not be
unfettered legislative power, for, as Jefferson said: "Let no man be
trusted with power but tie him down from making mischief by the
_____________________ (1) [1981] 2 SCR 516.
276 chains of the Constitution"; and
lastly there must be an independent judicially to protect the citizen against
excesses of executive and legislative power. Fortunately, whatever uncharitable
and irresponsible critics might say when they find a decision of the court
going against the view held by them, we can confidently assert that we have in
our country all these three elements essential to the rule of law. It is plain
and indisputable that under our Constitution law cannot be arbitrary or
irrational and if it is, it would be clearly invalid, whether under Article 14
or Article 19 or Article 21 whichever be applicable.
It is in the light of these constitutional
provisions that I must consider whether death penalty provided under Section
302 of the Indian Penal Code read with section 354 sub-section (3) of the Code
of Criminal Procedure is constitutionally valid. Now one thing is certain that
the Constitution does not in so many terms prohibit capital panishment. In
fact, it recognises death sentence as one of the penalties which may be imposed
by law. Article 21 provides inter alia that no one shall be deprived of his
life except according to procedure established by law and this clearly
postulates that a person may be deprived of his life in accordance with the
procedure prescribed by law or in other words, law may provide a procedure,
which of course according to the decision of this Court in Maneka Gandhi's case
(supra) must be reasonable, fair and just procedure, for inflicting death
penalty on a person depriving him of his life. Clause(c) of Article 72 also
recognises the possibility of a sentence of death being imposed on a person convicted
of an offence inasmuch as it provides that the President shall have the power
to suspend, remit or commute the sentence of any person who is convicted of an
offence and sentenced to death. It is therefore not possible to contend that
the imposition of death sentence for conviction of an offence is in all cases
forbidden by the Constitution.
But that does not mean that the infliction of
death penalty is blessed by the Constitution or that it has the imprimatur or
seal of approval of the Constitution. The Constitution is not a transient
document but it is meant to endure for a long time to come and during its life,
situations may arise where death penalty may be found to serve a social purpose
and its prescription may not be liable to be regarded as arbitrary or
unreasonable and therefore to meet such situations, the Constitution had to
make a provision and this it did in Article 21 and clause (c) of Article 72 so
that, even where death penalty is prescribed by any 277 law and it is otherwise
not unconstitutional, it must still comply with the requirement of Article 21
and it would be subject to the clemency power of the President under clause (c)
of Article 72. The question would however still remain whether the prescription
of death penalty by any particular law is violative of any provision of the
Constitution and is therefore rendered unconstitutional. This question has to
be answered in the present case with reference to section 302 of the Indian
Penal Code read with section 354 sub-section (3) of the Code of Criminal
Procedure.
Now in order to answer this question it is
necessary first of all to examine the legislative trend in our country so far
as the imposition of death penalty is concerned. A "brief survey of the
trend of legislative endeavours" will, as pointed out by Krishna Iyer, J.
in Rajendra Prasad v. State of U.P.(1) "serve to indicate whether the
people's consciousness has been protected towards narrowing or widening the
scope for infliction of death penalty." If we look at the legislative
history of the relevant provisions of the Indian Penal Code and the Code of
Criminal Procedure we find that in our country there has been a gradual shift
against the imposition of death penalty. "The legislative development,
through several successive amendments had shifted the punitive centre of
gravity from life taking to life sentence." Sub-section (5) of section 367
of the Code of Criminal Procedure 1898 as it stood prior to its amendment by
Act 26 of 1955 provided :
"If the accused is convicted of an
offence punishable with death, and the court sentences to any punishment other
than death, the court shall in its judgment state the reasons why sentence of
death was not passed." This provision laid down that if an accused was
convicted of an offence punishable with death, the imposition of death sentence
was the rule and the awarding of a lesser sentence was an exception and the
court had to state the reasons for not passing the sentence of death. In other
words, the discretion was directed positively towards death penalty.
But, by the Amending Act 26 of 1955 which
came into force with effect from 1st January 1956, this provision was deleted
with the result that from and after that date, it was left to the discretion of
the court on the facts of each case to pass a sentence of death or to award a
lesser sentence. Where the court found in a given case that, on the facts and
circumstances of the case, the death sentence was not called for or there were
extenuating circumstances to justify the passing of the lesser sentence, the
court would award the lesser sentence and not impose the death penalty. Neither
death penalty nor life sentence was the rule under the law as it stood after
the abolition of sub-section (5) of the section 367 by the Amending Act 26 of
1955 and the court was left "equally free to award either sentence".
But then again, there was a further shift against death penalty by reason of
the abolitionist pressure and when the new Code of Criminal Procedure 1973 was
enacted, section 354 sub-section (3) provided ;
"When the conviction is for a sentence
punishable with death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the reasons for the
sentence awarded and, in the case of sentence of death, special reasons for
such sentence." The court is now required under this provision to state
the reasons for the sentence awarded and in case of sentence of death, special
reasons are required to be stated. It will thus be seen that life sentence is
now the rule and it is only in exceptional cases, for special reasons, that
death sentence can be imposed. The legislature has however not indicated what
are the special reasons for which departure can be made from the normal rule
and death penalty may be inflicted. The legislature has not given any guidance
as to what are those exceptional cases in which, deviating from the normal
rule, death sentence may be imposed. This is left entirely to the unguided
discretion of the court, a feature, which, in my opinion, has lethal
consequences so far as the constitutionality of death penalty is concerned. But
one thing is clear that through these legislative changes "the disturbed
conscience of the State on the question of legal threat to life by way of death
sentence has sought to express itself legislatively", the stream of
tendency being towards cautions abolition.
It is also interesting to note that a further
legislative attempt towards restricting and rationalising death penalty was
made in the late seventies. A Bill called Indian Penal Code (Amendment) Bill
1972 for amending section 302 was passed by the Rajya Sabha in 1978 and it was
pending in the Lok Sabha at the time when Rajendra 279 Prasad's case was decided
and though it ultimately lapsed with the dissolution of the Lok Sabha, it shows
how strongly were the minds of the elected representatives of the people
agitated against "homicidal exercise of discretion" which is often an
"obsession with retributive justice in disguise".
This Bill sought to narrow drastically the
judicial discretion to impose death penalty and tried to formulate the
guidelines which should control the exercise of judicial exercise in this
punitive area. But unfortunately the Bill though passed by the Rajya Sabha
could not see its way through the Lok Sabha and was not enacted into law.
Otherwise perhaps the charge against the
present section of 302 of the Indian Penal Code read with section 354 sub-
section (3) of the Code of Criminal Procedure that it does not indicate any
policy or principle to guide the exercise of judicial discretion in awarding
death penalty, would have been considerably diluted, though even then, I doubt
very much whether that section could have survived the attack against its
constitutionally on the ground that it still leaves the door open for arbitrary
exercise of discretion in imposing death penalty.
Having traced the legislative history of the
relevant provisions in regard to death penalty, I will now turn my attention to
what great and eminent men have said in regard to death penalty, for their
words serve to bring out in bold relief the utter barbarity and futility of the
death penalty. Jaiprakash Narain, the great humanist, said, while speaking on
abolition of death penalty ;
"To my mind, it is ultimately a question
of respect for life and human approach to those who commit grievous hurts to
others. Death sentence is no remedy for such crimes. A more humane and
constructive remedy is to remove the culprit concerned from the normal milieu
and treat him as a mental case. I am sure a large proportion of the murderers
could be weaned away from their path and their mental condition sufficiently
improved to become useful citizens. In a minority of cases, this may not be
possible. They may be kept in prison houses till they die a natural death. This
may cast a heavier economic burden on society than hanging.
But I have no doubt that a humane treatment
even of a murderer will enhance man's dignity and make society more human.
(emphasis added) 280 Andrei Sakharov in a
message to the Stockholm Conference on Abolition of death Penalty organised by
Amnesty International in 1978 expressed himself firmly against death penalty:
"I regard the death penalty as a savage
and immoral institution which undermines the moral and legal foundations of a
society. A state, in the person of its functionaries who like all people are
inclined to making superficial conclusions, who like all people are subject to
influence, connections, prejudices and egocentric motivations for their
behaviour, takes upon itself the right to the most terrible and irreversible
act-the deprivation of life. Such a State cannot expect an improvement of the
moral atmosphere in its country.
I reject the notion that the death penalty
has any essential deterrent effect on potential offenders. I am convinced that
the contrary is true-that savagery begets only savagery...I am convinced that
society as a whole and each of its members individually, not just the person
who comes before the courts, bears a responsibility for the occurrence of a
crime. I believe that the death penalty has no moral or practical justification
and represents a survival of barbaric customs of revenge. Blood thirsty and
calculated revenge with no temporary insanity on the part of the judges, and
therefore, shameful and disgusting." (emphasis added) Tolstoy also
protested against death sentence in an article "I Cannot be Silent":
"Twelve of those by whose labour we
live, the very men whom we have depraved and are still depraving by every means
in our power-from the poison of vodka to the terrible falsehood of a creed we
impose on them with all our might, but do not ourselves believe in- twelve of
those men strangled with cords by those whom we feed and clothe and house, and
who have depraved and still continue to deprave them. Twelve husbands, fathers,
and sons, from among those upon whose kindness, industry and simplicity alone
rests the whole of Russian life, are seized, imprisoned, and shackled.
Then their hands are tied 281 behind their
backs lest they should seize the ropes by which they are to be hung, and they
are led to the gallows." So also said Victor Hugo in the spirit of the
Bishop created by him in his 'Les Miserables' :
"We shall look upon crime as a disease.
Evil will be treated in charity instead of anger. The change will be simple and
sublime. The cross shall displace the scaffold, reason is on our side, feeling
is on our side, and experience is on our side." Mahatma Gandhi also wrote
to the same effect in his simple but inimitable style :
"Destruction of individuals can never be
a virtuous act. The evil doers cannot be done to death.
Today there is a movement afoot for the
abolition of capital punishment and attempts are being made to convert prisons
into hospitals as if they are persons suffering from a disease." This
Gandhian concept was translated into action with commendable success in the
case of Chambal dacoits who laid down their arms in response to the call of Vinobha
Bhave and Jaiprakash Narayan. See "Crime and Non-violence" by Vasant
Nargolkar. There is also the recent instance of surrender of Malkhan Singh, a
notorious dacoit of Madhya Pradesh. Have these dacoits not been reformed ? Have
they not been redeemed and saved ? What social purpose would have been served
by killing them? I may also at this stage make a few observations in regard to
the barbarity and cruelty of death penalty, for the problem of constitutional
validity of death penalty cannot be appreciated in its proper perspective
without an adequate understanding of the true nature of death penalty and what
it involves in terms of human anguish and suffering. In the first place, death
penalty is irrevocable;
it cannot be recalled. It extinguishes the
flame of life forever and is plainly destructive of the right to life, the most
precious right of all, a right without which enjoyment of no other rights is
possible. It silences for ever a living being and despatches him to that
'undiscovered country from whose bourn no traveller returns' nor, 282 once
executed, 'can stored urn or animated bust back to its mansion call the
fleeting breath'. It is by reason of its cold and cruel finality that death
penalty is qualitatively different from all other forms of punishment. If a
person is sentenced to imprisonment, even if it be for life, and subsequently
it is found that he was innocent and was wrongly convicted, he can be set free.
Of course the imprisonment that he has suffered till then cannot be undone and
the time he has spent in the prison cannot be given back to him in specie but
he can come back and be restored to normal life with his honour vindicated if
he is found innocent. But that is not possible where a person has been wrongly
convited and sentencted to death and put out of existence in pursuance of the
sentence of death. In his case, even if any mistake is subsequently discovered,
it will be too late; in every way and for every purpose it will be too late,
for he cannot be brought back to life. The execution of the sentence of death
in such a case makes miscarriage of justice irrevocable. On whose conscience
will this death of an innocent man lie ? The State through its judicial
instrumentality would have killed an innocent man.
How is it different from a private murder ?
That is why Lafayatte said : "I shall ask for the abolition of the penalty
of death until I have the infallibility of human judgment demonstrated
me." It is argued on behalf of the retentionists that having regard to the
elaborate procedural safeguards enacted by the law in cases involving capital
punishment, the possibility of mistake is more imaginary than real and these
procedural safeguards virtually make conviction of an innocent person
impossible. But I do not think this argument is well founded. It is not
supported by factual data. Hugo Bedau in his well known book, "The Death
Penalty in America" has individually documented seventy four cases since
1893 in which it has been responsibly charged and in most of them proved beyond
doubt, that persons were wrongly convicted of criminal homicide in America.
Eight out of these seventy four, though innocent, were executed. Redin,
Gardener, Frank and others have specifically identified many more additional
cases. These are cases in which it has been possible to show from discovery of
subsequent facts that the convictions were erroneous and innocent persons were
put to death, but there may be many more cases where by reason of the
difficulty of uncovering the facts after conviction, let alone after execution,
it may not be possible to establish that there was miscarriage of justice. The
jurist Olivecroix, applying a calculus of probabilities to the chance of
judicial error, concluded as far back 283 as in 1860 that approximately one
innocent man was condemned out of every 257 cases. The proportion seems low but
only in relation to moderate punishment. In relation to capital punishment, the
proportion is infinitivelly high. When Hugo wrote that he preferred to call the
guillotine Lesurques (the name of an innocent man guillotined in the Carrier de
Lyon case) he did not mean that every man who was decapitated was a Lesurques,
but that one Lesurques was enough to wipe out the value of capital punishment
for ever.
It is interesting to note that where cases of
wrongful execution have come to public attention, they have been a major force
responsible for bringing about abolition of death penalty. The Evans case in
England in which an innocent man was hanged in 1949 played a large role in the
abolition of capital punishment in that country. Belgium also abjured capital
punishment on account of one such judicial error and so did Wisconsin, Rhode
Island and Maine in the United States of America.
Howsoever careful may be the procedural
safeguards erected by the law before death penalty can be imposed, it is
impossible to eliminate the chance of judicial error. No possible judicial
safeguards can prevent conviction of the innocent. Students of the criminal
process have identified several reasons why innocent men may be convicted of
crime.
In the first place, our methods of
investigation are crude and archaic. We are, by and large, ignorant of modern
methods of investigation based on scientific and technological advances. Our
convictions are based largely on oral evidence of witnesses. Often, witnesses
perjure themselves as they are motivated by caste, communal and factional
considerations. Sometimes they are even got up by the police to prove what the
police believes to be a true case. Sometimes there is also mistaken eye witness
identification and this evidence is almost always difficult to shake in
cross-examination. Then there is also the possibility of a frame up of innocent
men by their enemies.
There are also cases where an overzealous
prosecutor may fail to disclose evidence of innocence known to him but not
known to the defence. The possibility of error in judgment cannot therefore be
ruled out on any theoretical considerations. It is indeed a very live
possibility and it is not at all unlikely that so long as death penalty remains
a constitutionally valid alternative, the court or the State acting through the
instrumentality of the court may have on its conscience the blood of an
innocent man.
284 Then again it is sometimes argued that,
on this reasoning, every criminal trial must necessarily raise the possibility
of wrongful conviction and if that be so, are we going to invalidate every form
of punishment ? But this argument, I am afraid, is an argument of despair.
There is a qualitative difference between death penalty and other forms of
punishment. I have already pointed out that the former extinguishes the flame
of life altogether and is irrevocable and beyond recall while the latter can,
at least to some extent be set right, if found mistaken. This vital difference
between death penalty and imprisonment was emphasized by Mahatma Gandhi when he
said in reply to a German writer :
"I would draw distinction between
killing and detention and even corporal punishment. I think there is a
difference not merely in quantity but also in quality. I can recall the
punishment of detention. I can make reparation to the man upon whom I inflict
corporal punishment. But once a man is killed, the punishment is beyond recall
or reparation." The same point was made by the distinguished criminologist
Leon Radzinowicz when he said: "The likelihood of error in a capital
sentence case stands on a different footing altogether." Judicial error in
imposition of death penalty would indeed be a crime beyond punishment. This is the
drastic nature of death penalty, terrifying in its consequences, which has to
be taken into account in determining in constitutional validity.
It is also necessary to point out that death
penalty is barbaric and inhuman in its effect, mental and physical upon the
condemned man and is positively cruel. Its psychological effect on the prisoner
in the Death Row is disastrous. One Psychiatrist has described Death Row as a
"grisly laboratory" "the ultimate experiment alstress in which
the condemned prisoner's personality is incredibly brutalised." He points
out that "the strain of existence on Death Row is very likely to
produce....... acute psychotic breaks." Vide the article of "West on
Medicine and Capital Punishment." Some inmates are driven to ravings or
delusions but the majority sink into a sort of catatonic numbness under the
over-whelming stress." Vide "The Case against Capital
Punishment" by the Washington Research Project. Intense mental suffering
is inevitably associated with confinement under sentence of death. Anticipation
of approaching 285 death can and does produce stark terror. Vide article on
"Mental Suffering under Sentence of Death". 57 Iowa Law Review 814.
Justice Brennan in his opinion in Furman v. Georgia(1) gave it as a reason for
holding the capital punishment to be unconstitutional that mental pain is an
inseparable part of our practice of punishing criminals by death, for the
prospect of pending execution exacts a frightful toll during the inevitable
long wait between the imposition of sentence and the actual infliction of
death." Krishna Iyer, J. also pointed out in Rajendra Prasad's case
(supra) that because the condemned prisoner had "the hanging agony hanging
over his head since 1973 (i.e. for six years)..."he must by now be more a
vegetable than a person." He added that "the excruciation of long
pendency of the death sentence with the prisoner languishing near-solitary
suffering all the time, may make the death sentence unconstitutionally cruel
and agonising." The California Supreme Court also, in finding the death
penalty per se unconstitutional remarked with a sense of poignancy :
"The cruelty of capital punishment lies
not only in the execution itself and the pain incident thereto, but also in the
dehumanising effects of the lengthy imprisonment prior to execution during
which the judicial and administrative procedures essential to due process of
law are carried out. Penologists and medical experts agree that the process of
carrying out a verdict of death is often so degrading and brutalizing to the
human spirit as to constitute psychological torture." In Re Kemmler(2) the
Supreme Court of the United States accepted that "punishments are cruel
when they involve a lingering death, something more than the mere extinguishment
of life." Now a death would be as lingering if a man spends several years
in a death cell avaiting execution as it would be if the method of execution
takes an unacceptably long time to kill the victim. The pain of mental
lingering can be as intense as the agony of physical lingering. See David
Pannick on "Judicial Review of the Death Penalty." Justice Miller
also pointed out in Re Medley(3) that "when a prisoner sentenced by a
court to death is confined to the ______________ (1) 408 US 238.
(2) 136 US 436.
(3) 134 US 160.
286 penitentiary awaiting the execution of
the sentence, one of the most horrible feelings to which he can be subjected
during that time is the uncertainty during the whole of it..... as to the
precise time when his execution shall take place." We acknowledged that
such uncertainty is inevitably 'accompanied by an immense mental anxiety
amounting to a great increase of the offender's punishment.' But quite apart
from this excruciating mental anguish and severe psychological strain which the
condemned prisoner has to undergo on account of the long wait from the date
when the sentence of death is initially passed by the sessions court until it
is confirmed by the High Court and then the appeal against the death sentence
is disposed of by the Supreme Court and if the appeal is dismissed, then until
the clemency petition is considered by the Pesident and if it is turned down,
then until the time appointed for actual execution of the sentence of death
arrives, the worst time for most of the condemned prisoners would be the last
few hours when all certainty is gone and the moment of death is known.
Dostoyevsky who actually faced a firing squad only to be reprieved at the last
instant, described this experience in the following words :
"...the chief and the worst pain is
perhaps not inflicted by wounds, but by your certain knowledge that in an hour,
in ten minutes, in half a minute, now this moment your soul will fly out of
your body, and that you will be a human being no longer, and that that's certain-the
main thing is that it is certain ..Take a soldier and put him in front of a
cannon in battle and fire at him and he will still hope, but read the same
soldier his death sentence for certain, and he will go mad or burst out crying.
Who says that human nature is capable of bearing this without madness ? Why
this cruel, hideous, unnecessary and useless mockery? Possibly there are men
who have sentences of death read out to them and have been given time to go
through this torture, and have then been told, You can go now, you've been
reprieved. Such men could perhaps tell us.
It was of agony like this and of such horror
that Christ spoke. No you can't treat a man like that." 287 We have also
accounts of execution of several prisoners in the United States which show how
in these last moment condemned prisoners often simply disintegrate. Canns has
in frank and brutal language bared the terrible psychological cruelty of
capital punishment :
"Execution is not simply death. It is
just as different in essence, from the privation of life as a concentration
camp is from prison..... It adds to death a rule, a public premeditation known
to the future victim, an organisation, in short, which is in itself a source of
moral sufferings more terrible than death...
For there to be equivalence, the death
penalty would have to punish a criminal who had warned his victim of the date
at which he would inflict a horrible death on him and who, from that moment
onward, had confined him at his mercy for months. Such a monster is not
encountered in private life." There can be no stronger words to describe
the utter depravity and inhumanity of death sentence.
The physical pain and suffering which the
execution of the sentence of death involves is also no less cruel and inhuman.
In India, the method of execution followed is hanging by the rope.
Electrocution or application of lethal gas has not yet taken its place as in
some of the western countries. It is therefore with reference to execution by
hanging that I must consider whether the sentence of death is barbaric and
inhuman as entailing physical pain and agony. It is no doubt true that the
Royal Commission on Capital Punishment 1949-53 found that hanging is the most
humane method of execution and so also in Ichikawa v. Japan,(1) the Japanese
Supreme Court held that execution by hanging does not corrospond to 'cruel
punishment' inhibited by Article 36 of the Japanese Constituion. But whether
amongst all the methods of execution, hanging is the most humane or in the view
of the Japanese Supreme Court, hanging is not cruel punishment within the
meaning of Article 36, one thing is clear that hanging is undoubtedly
accompanied by intense physical torture and pain. Warden Duffy of San Quentin,
a high security __________ (1) Vide : David Pannick on "Judicial Review of
Death Penalty, page 73, 288 prison in the United States of America, describes
the hanging process with brutal frankness in lurid details :
"The day before an execution the
prisoner goes through a harrowing experience of being weighed, measured for
length of drop to assure breaking of the neck, the size of the neck, body
measurement et cetera.
When the trap springs he dangles at the end
of the rope. There are times when the neck has not been broken and the prisoner
strangles to death. His eyes pop almost out of his head, his tongue swells and
protrudes from his mouth, his neck may be broken, and the rope many times takes
large portions of skin and flesh from the side of the face and that the noose
is on. He urinates, he defecates, and droppings fall to the floor while
witnesses look on, and at almost all executions one or more faint or have to be
helped out of the witness room. The prisoner remains dangling from the end of
the rope for from 8 to 14 minutes before the doctor, who has climbed up a small
ladder and listens to his heart beat with a stethoscope, pronounces him dead. A
prison guard stands at the feet of the hanged person and holds the body steady,
because during the first few minutes there is usually considerables struggling
in an effort to breathe." If the drop is too short, there will be a slow
and agonising death by strangulation. On the other hand, if the drop is too
long, the head will be torn off. In England centuries of practice have produced
a detailed chart relating a man's weight and physical condition to the proper
length of drop, but even there mistakes have been made. In 1927, a surgeon who
witnessed a double execution wrote :
"The bodies were cut down after fifteen
minutes and placed in an antechamber, when I was horrified to hear one of the
supposed corpses give a gasp and find him making respiratory efforts, evidently
a prelude to revival. The two bodies were quickly suspended again for a quarter
of an hour longer...Dislocation of the neck is the ideal aimed at, but, out of
all my post- mortem findings, that has proved rather an exception, which in the
majority of 289 instances the cause of death was strangulation and
asphyxin." These passages clearly establish beyond doubt that the
execution of sentence of death by hanging does involve intense physical pain
and suffering, though it may be regarded by some as more humane than
electrocution or application of lethal gas.
If this be the true mental and physical
effect of death sentence on the condemned prisoner and if it causes such mental
anguish, psychological strain and physical agony and suffering, it is difficult
to see how it can be regarded as anything but cruel and inhuman. The only
answer which can be given for justifying this infliction of mental and physical
pain and suffering is that the condemned prisoner having killed a human being
does not merit any sympathy and must suffer this punishment because he
'deserves' it. No mercy can be shown to one who did not show any mercy to
others.
But, as I shall presently point out, this
justificatory reason cannot commend itself to any civilised society because it
is based on the theory of retribution or retaliation and at the bottom of it lays
the desire of the society to avenge itself against the wrong doer. That is not
a permissible penological goal.
It is in the context of this background that
the question has to be considered whether death penalty provided under section
302 of the Indian Penal Code read with section 354 sub-section (3) of the Code
of Criminal Procedure is arbitrary and irrational for if it is, it would be
clearly violative of Articles 14 and 21. I am leaving aside for the moment
challenge to death penalty under Article 19 and confining myself only to the
challenge under Article 14 and
21. So far as this challenge is concerned the
learned counsel appearing on behalf of the petitioner contended that the
imposition of death penalty under section 302 of the Indian Penal Code read
with section 354 sub-section (3) of the Code of Criminal Procedure was
arbitrary and unreasonable, firstly because it was cruel and inhuman,
disproportionate and excessive, secondly because it was totally unnecessary and
did not serve any social purpose or advance any constitutional value and lastly
because the discretion conferred on the court to award death penalty was not
guided by any policy or principle laid down by the legislature but was wholly
arbitrary. The Union of India as also the States supporting it sought to
counter this argument of the petitioners by submitting first that death penalty
is neither cruel nor inhuman, neither disproportionate nor excessive, secondly,
that it does serve a social purpose inasmuch as it fulfils two penological
goals namely, denunciation by the community and deterrence and lastly, that the
judicial discretion in awarding death penalty is not arbitrary and the court
can always evolve standards or norms for the purpose of guiding the exercise of
its discretion in this punitive area. These were broadly the rival contentions urged
on behalf of the parties and I shall now proceed to examine them in the light
of the observations made in the preceding paragraphs.
The first question that arises for
consideration on these contentions is-and that is a vital question which may
well determine the fate of this challenge to the constitutional validity of
death penalty-on whom does the burden of proof lie in a case like this ? Does
it lie on the petitioners to show that death penalty is arbitrary and
unreasonable on the various grounds urged by them or does it rest on the State
to show that death penalty is not arbitrary or unreasonable and serves a
legitimate social purpose. This question was debated before us at great length
and various decisions were cited supporting one view or the other. The earliest
decision relied on was that of Saghir Ahmed v. State of Uttar Pradesh(1) where
it was held by this Court that if the petitioner succeeds in showing that the
impugned law ex facie abridges or transgresses the rights coming under any of
the sub-clauses of clause (1) of Article 19, the onus shifts on the respondent
State to show that the legislation comes within the permissible limits
authorised by any of clauses (2) to (6) as may be applicable to the case, and
also to place material before the court in support of that contention. If the
State fails to discharge this burden, there is no obligation on the petitioner
to prove negatively that the impugned law is not covered by any of the
permissive clauses. This view as to the onus of proof was reiterated by this
Court in Khyerbari Tea Company v. State of Assam(2). But contended the
respondents, a contrary trend was noticeable in some of the subsequent
decisions of this Court and the respondents relied principally on the decision
in B. Banerjee v. Anita Pan(3) where Krishna Iyer, J. speaking on behalf of
himself and Beg, J. as he then was, _________________________ (1) [1955] 1 SCR
707.
(2) [1964] 5 SCR 975.
(3) [1975] 2 S.C.R. 774.
291 recalled the following statement of the
law from the Judgment of this Court in Ram Krishna Dalmia v. S.R.
Tendolkar & others: (1) "there is
always a presu mption in favour of the constitutionality of an enactment and
the burden is upon him who attacks it to show that there has been a clear
transgression of the constitutional principles." and "that it must be
presumed that the legislature understands and correctly appreciates the need of
its own people, that its laws are directed to problems made manifest by
experience and that its discriminations are based on adequate grounds."
and added that "if nothing is placed on record by the challengers, the
verdict ordinarily goes against them." Relying inter alia on the decision
of this Court in State of Bombay v. R.M.D. Chamarbaugwala(2) the learned Judge
again emphasized:
"Some courts have gone to the extent of
holding that there is a presumption in favour of constitutionality, a law will
not be declared unconstitutional unless the case is so clear as to be free from
doubt." These observations of Krishna Iyer, J. undoubtedly seem to support
the contention, of the respondents, but it may be pointed out that what was
said by this Court in the passage quoted above from the judgment in Ram Krishna
Dalmia's case (supra) on which reliance was placed by Krishna Iyer, J. was only
with reference to the challenge under Article 14 and the Court was not
considering there the challenge under Articles 19 or 21. This statement of the
law contained in Ram Krishna Dalmia's case (supra) could not therefore be
applied straightaway without anything more in a case where a law was challenged
under Articles 19 or 21. The fact, however, remains that Krishna Iyer, J.
relied on this statement of the law even though the case before him involved a
challenge under Article 19(1) (f) and not under Article 14. Unfortunately, it
seems that the attention of the learned Judge was not invited to the decisions
of this Court in Saghir Ahmed's case and Khyerbari Tea Company's case
________________ (1) [1959] SCR 297.
(2) [1957] SCR 874.
292 (supra) which were cases directly
involving challenge under Article 19. These decisions were binding on the
learned Judge and if his attention had been drawn to them, I am sure that he
would not have made the observations that he did casting on the petitioners the
onus of establishing "excessiveness or perversity in the restrictions
imposed by the statute" in a case alleging violation of Article 19.
These observations are clearly contrary to
the law laid down in Saghir Ahmed and Khyerbari Tea Company cases (supra) The
respondents also relied on the observations of Fazal Ali, J. in Pathumma v.
State of Kerala (1). There the constitutional validity of the Kerala
Agriculturists' Debt Relief Act 1970 was challenged on the ground of violation
of both Articles 14 and 19(1) (f). Before entering upon a discussion of the
arguments bearing on the validity of this challenge, Fazal Ali. J. speaking on
behalf of himself, Beg, C.J., Krishna Iyer and Jaswant Singh. JJ. observed that
the court will interfere with a statute only "when the statute is clearly
violative of the right conferred on the citizen under Part III of the
Constitution" and proceeded to add that it is on account of this reason
"that courts have recognised that there is always a presumption in favour
of the constitutionality of a statute and the onus to prove its invalidity lies
on the party which assails the same." The learned Judge then quoted with
approval the following passage from the Judgment of S.R. Das, C.J. in Mohd.
Hanif v. State of Bihar (2) "The pronouncements of this Court further
establish, amongst other things, that there is always a presumption in favour
of the constitutionality of an enactment and that the burden is upon him, who
attacks it, to show that there has been a clear violation of the constitutional
principles. The Courts, it is accepted, must presume that the legislature
understands and correctly appreciates the needs of its own people, that its
laws are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds." It is difficult to see how
these observations can be pressed into service on behalf of the respondents.
The passage from the judgment of _________________ (1) [1970] 2 SCR 537.
(2) [1959] S.C.R. 629.
293 S.R. Das, C.J. in Mohd. Hanif's case
(supra) relied upon by Fazal Ali, J. occurs in the discussion relating to the
challenge under Article 14 and obviously it was not intended to have any
application in a case involving challenge under Article 19 or 21. In fact,
while discussing the challenge to the prevention of cow slaughter statutes
under Article 19(1)(g), S.R. Das, C.J. proceeded to consider whether the
restrictions imposed by the impugned statutes on the Fundamental Rights of the
petitioners under Article 19(1)(g) were reasonable in the interest of the
general public so as to be saved by clause (6) of Article 19. Moreover, the
observations made by Fazal Ali, J. were general in nature and they were not
directed towards consideration of the question as to the burden of proof in cases
involving violation of Article 19. What the learned Judge said was that there
is always a presumption in favour of the constitutionality of a statute and the
court will not interfere unless the statute is clearly violative of the
Fundamental Rights conferred by Part III of the Constitution. This is a
perfectly valid statement of the law and no exception can be taken to it. There
must obviously be a presumption in favour of the constitutionality of a statute
and initially it would be for the petitioners to show that it violates a
Fundamental Right conferred under one or the other sub-clauses of clause (1) of
Article 19 and is therefore unconstitutional, but when that is done, the
question arises, on whom does the burden of showing whether the restrictions are
permissible or not, lie? That was not a question dealt with by Fazal Ali, J.
and I cannot therefore read the observations of the learned Judge as, in any
manner, casting doubt on the validity of the statement of law contained in
Saghir Ahmed and Khyerbari Tea Company's cases (supra). It is clear on first
principle that subclauses (a) to (g) of clause (1) of Article 19 enact certain
fundamental freedoms and if sub clauses (2) to (6) were not there, any law
contravening one or more of these fundamental freedoms would have been
unconstitutional. But clauses (2) to (6) of Article 19 save laws restricting
these fundamental freedoms, provided the restrictions imposed by them fall
within certain permissible categories. Obviously therefore, when a law is
challenged on the ground that it imposes restrictions on the freedom guaranteed
by one or the other subclause of clause (1) of Article 19 and the restrictions
are shown to exist by the petitioner, the burden of establishing that the
restrictions fall within any of the permissive clauses (2) to (6) which may be
applicable, must rest upon the State. The State would have to produce material
for satisfying the court that the restrictions imposed 294 by the impugned law
fall within the appropriate permissive clause from out of clauses (2) to (6) of
Article 19. Of course there may be cases where the nature of the legislation
and the restrictions imposed by it may be such that the court may, without
more, even in the absence of any positive material produced by the State, conclude
that the restrictions fall within the permissible category, as for example,
where a law is enacted by the legislature for giving effect to one of the
Directive Principles of State Policy and prima facie, the restrictions imposed
by it do not appear to be arbitrary or excessive. Where such is the position,
the burden would again shift and it would be for the petitioner to show that
the restrictions are arbitrary or excessive and go beyond what is required in
public interest. But, once it is shown by the petitioner that the impugned law
imposes restrictions which infringe one or the other sub-clause of clause (1)
of Article 19, the burden of showing that such restrictions are reasonable and
fall within the permissible category must be on the State and this burden the
State may discharge either by producing socio economic data before the court or
on consideration of the provisions in the impugned law read in the light of the
constitutional goals set out in the Directive Principles of State Policy. The test
to be applied for the purpose of determining whether the restrictions imposed
by the impugned law are reasonable or not cannot be cast in a rigid formula of
universal application, for, as pointed out by Patanjali Shastri, J. in State of
Madras v. V.J. Row (1) "no abstract standard or general pattern of
reasonableness can be laid down as applicable to all cases". The nature of
the right alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil sought to be remedied,
the value of human life, the disproportion of the imposition, the social
philosophy of the Constitution and the prevailing conditions at the time would
all enter into the judicial verdict. And we would do well to bear in mind that
in evaluating such elusive factors and forming his own conception of what is
reasonable in all the circumstances of a given case, it is inevitable that the
social philosophy and the scale of values of the judge participating in the
decision would play a very important part.
Before I proceed to consider the question of
burden of proof in case of challenge under Article 14, it would be convenient
first to (1) [1952] SCR 597.
295 deal with the question as to where does
the burden of proof lie when the challenge to a law enacted by the legislature
is based on violation of Article 21. The position in regard to onus of proof in
a case where the challenge is under Article 21 is in my opinion much clearer
and much more free from doubt or debate than in a case where the complaint is
of violation of clause (1) of Article 19. Wherever there is deprivation of
life, and by life I mean not only physical existence, but also use of any
faculty or limb through which life is enjoyed and basic human dignity, or of
any aspect of personal liberty, the burden must rest on the State to establish
by producing adequate material or otherwise that the procedure prescribed for
such deprivation is not arbitrary but is reasonable, fair and just. I have
already discussed various circumstances bearing upon the true nature and
character of death penalty and these circumstances clearly indicate that it is
reasonable to place on the State the onus to prove that death penalty is not
arbitrary or unreasonable and serves a compelling State interest. In the first
place, death penalty destroys the most fundamental right of all, namely, the
right to life which is the foundation of all other fundamental rights. The
right to life stands on a higher footing than even personal liberty, because
personal liberty too postulates a sentient human being who can enjoy it. Where
therefore a law authorises deprivation of the right to life the reasonableness,
fairness and justness of the procedure prescribed by it for such deprivation
must be established by the State. Such a law would be 'suspect' in the eyes of
the court just as certain kinds of classification are regarded as 'suspect' in
the United States of America. Throwing the burden of proof of reasonableness,
fairness and justness on the State in such a case is a homage which the
Constitution and the courts must pay to the right to life. It is significant to
point out that even in case of State action depriving a person of his personal liberty;
this Court has always cast the burden of proving the validity of such action on
the State, when it has been challenged on behalf of the person deprived of his
personal liberty. It has been consistently held by this Court that when
detention of a person is challenged in a habeas corpus petition, the burden of
proving the legality of the detention always rests on the State and it is for
the State to justify the legality of the detention. This Court has shown the
most zealous regard for personal liberty and treated even letters addressed by
prisoners and detenus as writ petitions and taken action upon them and called
upon the State to show how the detention is justified. If this be the anxiety
and concern shown by 296 the court for personal liberty, how much more should
be the judicial anxiety and concern for the right to life which indisputably
stands on a higher pedestal. Moreover, as already pointed out above, the
international standard or norm set by the United Nations is in favour of
abolition of death penalty and that is the ultimate objective towards which the
world body is moving. The trend of our national legislation is also towards
abolition and it is only in exceptional cases for special reasons that death
sentence is permitted to be given. There can be no doubt that even under our
national legislation death penalty is looked upon with great disfavour. The
drastic nature of death penalty involving as it does the possibility of error
resulting in judicial murder of an innocent man as also its brutality in
inflicting excruciating mental anguish severe psychological strain and
agonising physical pain and suffering on the condemned prisoner are strong
circumstances which must compel the State to justify imposition of death
penalty. The burden must lie upon the State show that death penalty is not
arbitrary and unreasonable and serves a legitimate social purpose, despite the
possibility of judicial error in convicting and sentencing an innocent man and
the brutality and pain, mental as well as physical, which death sentence
invariably inflicts upon the condemned prisoner. The State must place the
necessary material on record for the purpose of discharging this burden which
lies upon it and if it fails to show by presenting adequate evidence before the
court or otherwise that death penalty is not arbitrary and unreasonable and does
serve a legitimate social purpose, the imposition of death penalty under
section 302 of the Indian Penal Code read with section 354 sub-section (3) of
the Code of Criminal Procedure would have to be struck down as violative of the
protection of Article 21.
So far as the question of burden of proof in
a case involving challenge under Article 14 is concerned, I must concede that
the decisions in Ram Krishan Dalmia's case (supra) and Mohd. Hannif Qureshi's
case (supra) and several other subsequent decisions of the Court have clearly
laid down that there is a presumption in favour of constitutionality of a
statute and the burden of showing that it is arbitrary or discriminary lies
upon the petitioner, because it must be presumed "that the legislature understands
and correctly appreciates the needs of its own people, that its laws are
directed to problems made manifest by experience and that its discriminations
are based on adequate grounds." Sarkaria, J. has pointed out in the
majority judgment that underlying this presumption of constitutionality
"is the rationale of judicial restraint, a recognition of the limits of
judicial review, a respect for the boundaries of legislative and judicial
functions and the judicial responsibility to guard the tress pass from one side
or the other." The learned Judge with a belief firmly rooted in the tenets
of mechanical jurisprudence, has taken the view that "the primary function
of the Courts is to interpret and apply the laws according to the will of those
who made them and not to transgress into the legislative domain of policy
making." Now there can be no doubt that in adjudicating upon the
constitutional validity of a statute, the Judge should show deference to the
legislative judgment and should not be anxious to strike it down as invalid. He
does owe to the legislature a margin of tolerance and he must constantly bear
in mind that he is not the legislator nor is the court a representative body.
But I do not agree with Sarkaria, J. when he seems to suggest that the judicial
role is, as it was for Francis Bacon, 'jus dicere and not just dare; to
interpret law and not to make law or give law.' The function of the Court
undoubtedly is to interpret the law but the interpretative process is highly
creative function and in this process, the Judge, as pointed out by Justice
Holmes, does and must legislate. Lord Reid ridiculed as 'a fairytale' the
theory that in some Aladdin's cave is hidden the key to correct judicial
interpretation of the law's demands and even Lord Diplock acknowledged that
"The court may describe what it is doing in tax appeals as interpretation.
So did the priestess of the Delphic Oracle.
But whoever has final authority to explain
what Parliament meant by the words that it used, makes law as if the explanation
it has given were contained in a new Act of Parliament. It will need a new Act
of Parliament to reverse it." Unfortunately we are so much obsessed with
the simplicities of judicial formalism which presents the judicial role as jus
dicere, that, as pointed out by David Pannick in his "Judicial Review of
the Death Penalty", "we have, to a substatial extent, ignored the
Judge in administering the judicial process. So heavy a preoccupation we have
made with the law, its discovery and its agents who play no creative role, that
we have paid little, if any, regard to the appointment, training, qualities,
demeanour and performance of the individuals selected to act as the mouth of
the legal oracle." It is now acknowledged by leading jurists all over the world
that judges are not descusitized and passionless instruments which weigh on
inanimate and impartial scales of legal judgment, the evidence and the
arguments presented on each side of the case. They are not political 298 and
moral enuchs able and willing to avoid impregnating the law with their own
ideas and judgment. The judicial exercise in constitutional adjudication is
bound to be influenced, consciously or subconsciouly, by the social philosophy
and scale of values of those who sit in judgment. However, I agree with
Sarkaria, J. that ordinarily the judicial function must be characterised by
deference to legislative judgment because the legislature represents the voice
of the people and it might be dangerous for the court to trespass into the
sphere demarcated by the Constitution for the legislature unless the
legislative judgment suffers from a constitutional infirmity. It is a trite
saying that the Court has "neither force nor will but merely
judgment" and in the exercise of this judgment, it would be a wise rule to
adopt to presume the constitutionality of a statute unless it is shown to be
invalid. But even here it is necessary to point out that this rule is not a
rigid inexorable rule applicable at all times and in all situations. There may
conceivably be cases where having regard to the nature and character of the
legislation, the importance of the right affected and the gravity the injury
caused by it and the moral and social issues involved in the determination, the
court may refuse to proceed on the basis of presumption of constitutionality
and demand from the State justification of the legislation with a view to
establishing that it is not arbitrary or discriminatory. There are times when
commitment to the values of the Constitution and performance of the
constitutional role as guardian of fundamental rights demands dismissal of the
usual judicial deference to legislative judgment. The death penalty, of which
the constitutionality is assailed in the present writ petitions, is a
fundamental issue to which ordinary standards of judicial review are
inappropriate. The question here is one of the most fundamental which has
arisen under the Constitution, namely, whether the State is entitled to take
the life of a citizen under cover of judicial authority. It is a question so
vital to the identity and culture of the society and so appropriate for
judicial statement of the standards of a civilised community-often because of
legislative apathy-that "passivity and activism become platitudes through
which judicial articulation of moral and social values provides a light to
guide an uncertain community." The same reasons which have weighed with me
in holding that the burden must lie on the State to prove that the death
penalty provided under section 302 of the Indian Penal Code read with section
354 sub-section (3) of the Code of Criminal Procedure is not arbitrary and
unreasonable and serves a legitimate penological purpose where 299 the
challenge is under Article 21 must apply equally to cast the burden of the proof
upon the State where the challenge is under Article 14.
Now it is an essential element of the rule of
law that the sentence imposed must be proportionate to the offence.
If a law provides for imposition of a
sentence which is disproportionate to the offence, it would be arbitrary and
irrational, for it would not pass the test of reason and would be contrary to
the rule of law and void under Articles 14, 19 and 21. The principle of
proportionality is implicit in these three Articles of the Constitution. If,
for example, death penalty was prescribed for the simple offence of theft-as
indeed it was at one time in the seventeenth century England-it would be
clearly excessive and wholly disproportionate to the offence and hence
arbitrary and irrational by any standards of human decency and it would be
impossible to sustain it against the challenge of these three Articles of the
Constitution. It must therefore be taken to be clear beyond doubt that the
proportionality principle constitutes an important constitutional criterion for
adjudging the validity of a sentence imposed by law.
The Courts in the United States have also
recognised the validity of the proportionality principle. In Gregg v. Goergia
(1) Stewart, J. speaking for the plurality of the American Supreme Court said
that "to satisfy constitutional requirements, the punishment must not be
excessive...the punishment must not be out of proportion to the severity of the
crime. This constitutional criterion was also applied in Coker v. Georgia (2) to
invalidate the death penalty for rape of an adult woman. While, J. with whom
Stewarts and Blackmun, JJ. Agreed, said, with regard to the offence of rape
committed against an adult woman: "a sentence of death is grossly
disproportionate and excessive punishment for the crime of rape and is
therefore forbidden by the Eighth Amendment as cruel and unusual
punishment". Likewise in Lockette v. Ohio (3) where the defendant sat
outside the scene of robbery waiting to drive her accomplices away and contrary
to plan, the robbers murdered three victims in the course of their robbery and
she was convicted and sentenced to death by resort to the doctrine of vicarious
liability, 300 the Supreme Court of the United States applying the same
principle of proportionality held the death sentence unconstitutional.
Marshall, J. pointed out that because the appellant was convicted under a
theory of vicarious liability, the death penalty imposed on her "violates
the principle of proportionality embodied in the Eighth Amendment's prohibition"
and White J. also subscribed to the same reasoning when he said, "the
infliction of death upon those who had no intent to bring about the death of
the victim is .....grossly out of proportion to the severity of the
crime". Of course, the Supreme Court of the United States relied upon the
Eighth Amendment which prohibits cruel and unusual treatment or punishment and
we have no such express prohibition in our Constitution, but this Court has
held in Francis Mullen's case (supra) that protection against torture or cruel
and inhuman treatment or punishment is implicit in the guarantee of Article 21
and therefore even on the basic of the reasoning in these three American
decisions, the principle of proportionallty would have relevance under our
Constitution. But, quite apart from this, it is clear and we need not reiterate
what we have already said earlier, that the principle of proportionality flows
directly as a necessary element from Articles 14, 19 and 21 of the
Constitution. We find that in Canada too, in the case of Rex v. Miller and
Cockriell (1) the principle of proportionality has been recognised by Laskin
C.J. speaking on behalf of Canadian Supreme Court as "one of the
constitutional criteria of 'cruel and unusual treatment or punishment' prohited
under the Canadian Bill of Rights.
Laskin C.J. pointed out in that case "It
would be patent to me, for example, that death as a mandatory penalty today for
theft would be offensive to s. 2(b). That is because there are social and moral
considerations that enter into the scope and application of section 2(b).
Harshness of punishment and its severity in consequences are relative to the
offence involved but, that being said, there may still be a question (to which
history too may be called in aid of its resolution) whether the punishment
prescribed is so excessive as to outrage standards of decency. That is not a
precise formula for s. 2(b) but I doubt whether a more precise one-can be
found." Similarly, as pointed out by Mr. David Pannick in his book on
"Judicial Review of the Death Penalty" international charters of
rights express or imply the principle of proportionality. Article 7 of the
International Covenant on Civil and Political Rights forbids torture and cruel
301 inhuman or degrading treatment or punishment and so does Article A 3 of the
European Convention on Human Rights. It has been suggested by Francis Jacobs, a
commentator on the European Convention that "among the factors to be
considered in deciding whether the death penalty, in particular circumstances,
was contrary to Article 3, would be whether it was disproportionate to the
offence.
It is necessary to point out at this stage
that death penalty cannot be said to be proportionate to the offence merely
because it may be or is believed to be an effective deterrent against the
commission of the offence. In Coker v. Georgia (supra) the Supreme Court of the
United States held that capital punishment is disproportionate to rape
"even though it may measurably serve the legitimate ends of punishment and
therefore is not invalid for its failure to do so." The absence of any
rational purpose to the punishment inflicted is a separate ground for attacking
its constitutionality. The existence of a rational legislative purpose for
imposing the sentence of death is a necessary condition of its
constitutionality but not sufficient one.
The death penalty for theft would, for
example, deter most potential thieves and may have a unique deterrent effect in
preventing the commission of the offence; still it would be wholly
disproportionate and excessive, for the social effect of the penalty is not
decisive of the proportionality to the offence. The European Court of Human
Rights also observed in Tyrer v. United Kingdom (1) that "a punishment
does not lose its degrading character just because it is believed to be, or
actually is, an effective deterrent or aid to crime control. Above all, as the
court must emphasize, it is never permissible to have recourse to punishments
which are contrary to Article 3, whatever their deterrent effect may be."
The utilitarian value of the punishment has nothing to do with its
proportionality to the offence. It would therefore be no answer in the present
case for the respondents to say that death penalty has a unique deterrent effect
in preventing the crime of murder and therefore it is proportionate to the
offence. The proportionality between the offence and death penalty has to be
judged by reference to objective factors such as international standards or
norms or the climate of international opinion, modern penological theories and
evolving standards of human decency. I have already pointed out and I need not
repeat that the international standard or norm which 302 is being evolved by
the United Nations is against death penalty and so is the climate of opinion in
most of the civilized countries of the world. I will presently show that
penological goals also do not justify the imposition of death penalty for the
offence of murder. The prevailing standards of human decency are also incompatible
with death penalty. The standards of human decency with reference to which the
proportionality of the punishment to the offence is required to be judged vary
from society to society depending on the cultural and spiritual tradition of
the society, its history and philosophy and its sense of moral and ethical
values. To take an example, if a sentence of cutting off the arm for the
offence of theft or a sentence of stoning to death for the offence of adultery
were prescribed by law, there can be no doubt that such punishment would be
condemned as barbaric and cruel in our country, even though it may be regarded
as proportionate to the offence and hence reasonable and just in some other
countries. So also the standards of human decency vary from time to time even
within the same society. In an evolutionary society, the standards of human
decency are progressively evolving to higher levels and what was regarded as
legitimate and reasonable punishment proportionate to the offence at one time
may now according to the envolving standards of human decency, be regarded as
barbaric and inhuman punishment wholly disproportionate to the offence. There
was a time when in the United Kingdom a sentence of death for the offence of
theft or shop lifting was regarded as proportionate to the offence and
therefore quite legitimate and reasonable according to the standards of human
decency then prevailing, but today such punishment would be regarded as totally
disproportionate to the offence and hence arbitrary and unreasonable. The
question, therefore, is whether having regard to the international standard or
norm set by the United Nations in favour of abolition of death penalty, the
climate of opinion against death penalty in many civilized countries of the
world and the prevailing standards of human decency, a sentence of death for
the offence of murder can be regarded as satisfying the test of proportionality
and hence reasonable and just. I may make it clear that the question to which I
am addressing myself is only in regard to the proportionality of death sentence
to the offence of murder and nothing that I say here may be taken as an
expression of opinion on the question whether a sentence of death can be said
to be proportionate to the offence of treason or any other offence involving
the security of the State.
303 Now in order to determine what are the
prevailing standards of human decency, one cannot ignore the cultural ethos and
spiritual tradition of the country. To quote the words of Krishna Iyer, J. in
Raiendra Prasad's case "The values of a nation and ethos of a generation
mould concepts of crime and punishment. So viewed, the lode-star of penal
policy today, shining through the finer culture of former centuries,
strengthens the plea against death penalty...The Indian cultural current also
counts and so does our spiritual chemistry, based on divinity in everyone,
catalysed by the Buddha Gandhi compassion. Many humane movements and sublime
souls have cultured the higher consciousness of mankind." In this land of
Buddha and Gandhi, where from times immemorial, since over 5000 years ago,
every human being is regarded as embodiment of Brahman and where it is a firm
conviction based not only on faith but also on experience that "every
saint has a past and every sinner a future", the standards of human
decency set by our ancient culture and nourished by our constitutional values
and spiritual norms frown upon imposition of death penalty for the offence of
murder. It is indisputable that the Constitution of a nation reflects its
culture and ethos and gives expression to its sense of moral and ethical
values. It affords the surest indication of the standards of human decency
cherished by the people and sets out the socio-cultural objectives and goals
towards which the nation aspires to move. There can be no better index of the
ideals and aspirations of a nation than its Constitution. When we turn to our
Constitution, we find that it is a humane document which respects the dignity
of the individual and The worth of the human person and directs every organ of
the State to strive for the fullest development of the personality of every
individual. Undoubtedly, as already pointed out above, our Constitution does
contemplate death penalty, and at the time when the Constitution came to be
enacted, death penalty for the offence of murder was on the statute book, but
the entire thrust of the Constitution is in the direction of development of the
full potential of every citizen and the right to life along with basic human
dignity is highly prized and cherished and torture and cruel or in-human
treatment or punishment which would be degrading and destructive of human
dignity are constitutionally forbidden. Moreover, apart from the humanistic
quintessence of the Constitution, the thoughts, deeds and words of the great
men of this country provide the clearest indication of the prevailing standards
of human 304 decency. They represent the conscience of the nation and are the
most authentic spokesmen of its culture and ethos.
Mahatma Gandhi, the Father of the Nation
wrote long ago in the Harijan. "God alone can take life because He alone
gives it. He also said and this I may be permitted to emphasize even at the
cost of repetition: "Destruction of individuals can never be a virtuous
act. The evil doers cannot be done to death . . Therefore all crimes including
murder will have to be treated as a disease." I have also quoted above
what Jai Prakash Narain said in his message to the Delhi Conference against
Death Penalty. The same humanistic approach we find in the utterances of Vinoba
Bhave. His approach to the problem of dacoits in Chambal Valley and the manner
in which he brought about their surrender through soulforce bear eloquent
testimony to the futility of death penalty and shows how even dacoits who have
committed countless murders can be reclaimed by the society. But, the more
important point is that this action of Vinoba Bhave was applauded by the whole
nation and Dr. Rajendra Prasad who was then the President of India, sent the following
telegram to Binoba Bhave when he came to know that about 20 dacoits from the
Chambal region had responded to the Saint's appeal to surrender.
"The whole nation looks with hope and
admiration upon the manner in which you have been able to rouse the better
instincts and moral sense, and thereby inspire faith in dacoits which has led
to their voluntary surrender. Your efforts, to most of us, come as a refreshing
proof of the efficacy of the moral approach for reforming the misguided and
drawing the best out of them. I can only pray for the complete success of your
mission and offer you my regards and best wishes." These words coming from
the President of India who is the Head of the nation reflect not only his own
admiration for the manner in which Vinoba Bhave redeemed the dacoits but also
the admiration of the entire nation and that shows that what Vinoba Bhave did,
had the approval of the people of the country and the standards of human
decency prevailing amongst the people commended an approach favouring
reformation and rehabilitation of the dacoits rather than their conviction for
the various offences of murder com- mitted by them and the imposition of death
penalty on them.
Moreover, it is difficult to see bow death
penalty can be regarded as proportionate to the offence of murder when
legislatively it has been A ordained that life sentence shall be the rule and
it is only in exceptional cases for special reasons that death penalty may be
imposed. It is obvious from the provision enacted in section 354(3) of the -
Code of Criminal Procedure that death sentence is legislatively regarded as
disproportionate and excessive in most cases of murder and it is only in
exceptional cases what Sarkaria, J.
speaking on behalf of the majority, describes
as "the rarest of rare" cases, that it can at all be contended that
death sentence is proportionate to the offence of murder.
But, then the legislature does not indicate
as to what are those exceptional cases in which death sentence may be regarded
as proportionate to the offence and, therefore, reasonable and just. Merely
because a murder is heinous or horrifying, it cannot be said that death penalty
is proportionate to the offence when it is not so for a simple murder. How does
it become proportionate to the offence merely because it is a 'murder most
foul'. I fail to appreciate how it should make any difference to the penalty
whether the murder is a simple murder or a brutal one. A murder is a murder all
the same whether it is carried out quickly and inoffensively or in a gory and
gruesome manner.
If death penalty is not proportionate to the
offence in the former case, it is difficult to see how it can be so in the
latter. I may usefully quote in this connection the words of Krishna Iyer, J.
in Rajendra Prasad's case where the learned Judge said;
"Speaking illustratively, is shocking
crime, without more, good to justify the lethal verdict ? Most murders are
horrifying, and an adjective adds but sentiment, not argument. The personal
story of an actor in a shocking murder, if considered, may bring tears and
soften the sentence. He P . might have been a tortured child, an ill-treated
orphan, a jobless starveling, a badgered brother, a wounded son, a tragic
person hardened by societal cruelty or vengeful justice, - even a Hemlet or
Parasurarna. He might have been an - - angelic boy but thrown into mafia
company or inducted into dopes and drugs by parental neglect or
morally-ment-ally retarded or disordered. Imagine a harijan village hacked out
of existence by the genocidal fury of a kulak ' group and one survivor, days
later, cutting to pieces the villain of the earlier outrage. Is the court in
error in reckoning the prior provocative barbarity as a sentencing factor? 306
Another facet. May be, the convict's poverty had disabled his presentation of
the social milieu or other circumstances of extenuation in defence.. When life
is at stake, can such frolics of fortune play with judicial, verdicts? "The
nature of the crime-too terrible to contemplate has often been regarded a
traditional peg on which to hang a death penalty. Even Ediga Anamma (supra) has
hardened here. But 'murder most foul' is not the test, speaking J-
scientifically. The doer may be a patriot, a revolutionary, a weak victim of an
overpowering passion who, given better a environment, may be a good citizen, a
good administrator, a good husband, a great saint. What was Valmiki once? And
that sublime spiritual star, Shri Aurobindo tried once - for murder but by
history's fortune acquitted." I agree with these observations of the
learned Judge which clearly show that death penalty cannot be regarded as
proportionate to the offence of murder, merely because the murder is brutal,
heinous or shocking. The nature and magnitude of the offence or the motive and
purposes underlying it or the manner and extent of its commission cannot have
any relevance to the proportionality of death penalty to the offence. It may be
argued that though these factors may not of themselves be relevant,. they may
go to show that the murderer is such a social monster, a psychopath, that he
cannot be reformed and he should therefore be regarded as human refuse,
dangerous to society, and deserving to be hanged and in such a case death
penalty may legitimately be regarded as proportionate to the offence. But I do
not think this is a valid argument. It is for reasons which I shall presently
state, wholly untenable and it has dangerous implications. I do not think it is
possible to hold that death penalty is, in any circumstances, proportionate to
the offence of murder.
Moreover, when death penalty does not serve
any legitimate social purpose, and this is a proportion which I shall proceed
to establish in the succeeding paragraphs, infliction of mental and physical
pain and suffering on the condemned prisoner by sentencing him to death penalty
cannot but be regarded as cruel and inhuman and therefore arbitrary and
unreasonable.
I will now examine whether death penalty for
the offence of murder serves any legitimate social purpose.
There are three justifications traditionally
advanced in support of punishment in general, namely, (1) reformation; (2)
denunciation by the community or retribution and (3) deterrence. These are the
three ends of punishment, its three penological goals, with reference to which
any punishment prescribed by law must be justified. If it cannot be justified
with reference to one or the other of these three penological purposes, it
would have to be condemned as arbitrary and irrational, for in a civilised
society governed by the rule of law, no punishment can be inflicted on an
individual unless it serves some social purpose. It is a condition of legality
of a punishment that it should serve a rational legislative purpose or in other
words, it should have a measurable social effect. Let us therefore examine
whether death penalty for the offence of murder serves any legitimate and of
punishment.
It would be convenient first to examine the
examine the constutionality of death penalty with reference to the reform tory
end of punishment. The civilised goal of criminal justice is the reformation of
the criminal and death penalty means abandonment of this goal for those who
suffer it. Obviously death penalty cannot serve the reformatory goal because it
extinguishes life and puts an end to any possibility of reformation. In fact,
it defeats the reformatory end of punishment. But the answer given by the
protagonists of death penalty to this argument is that though there may be a
few murderers whom it may be possible to reform and rehabilitate, what about
those killers who cannot be reformed and rehabilitated ? Why should the death
penalty be not awarded to them ? But even in their cases, I am afraid, the
argument cannot be sustained. There is no way of accurately predicting or
knowing with any degree of moral certainty that a murderer will not be reformed
or is incapable of reformation. All we know is that there have been many
successes even with the most vicious of cases. Was Jean Valjean of Les
Miserbles not reformed by the kindness and magnanimity of the Bishop? Was
Valmiki a sinner not reformed and did he not become the author of one of the
world's greatest epics? Were the dacoits of Chambal not transformed by the
saintliness of Vinoba Bhave and Jai Prakash Narain ? We have also the examples
of Nathan Leopold, Paul Crump and Edger Smith who were guilty of the most
terrible and gruesome murders but who, having escaped the gallows, became
decent and productive human beings.
These and many other examples clearly 308
show that it is not possible to know beforehand with any degree of cartainty
that a murderer is beyond reformation.
Then would it be right to extinguish the life
of a human being merely on the basis of speculation and it can only be
speculation and not any definitive inference-that he cannot be reformed. There
is divinity in every man and to my mind no one is beyond redemption. It was
Ramakrishna Paramhansa, one of the greatest saints of the last century, who
said, "Each soul is potentially divine". There is Brahman in every
living being, serve khalu idan bramh, as the Upanishad says and to the same
effect we find a remarkable utterance in the Brahmasukta of Atharvaveda where a
sage exclaims: "Indeed these killers are Brahman; these servants (or slaves)
are Brahmaa; these cheats and rogues are also manifestation of one and the same
Brahman itself." Therefore once the dross of Tamas is removed and satva is
brought forth by methods of rehabilitation such as community service, yoga,
meditation and sat sang or holy influence, a change definitely takes place and
the man is reformed. This . is not just a fancy or idealised view taken by
Indian philosophical thought, but it also finds Support from the report of the
Royal Commission on Capital Punishment set up in the United Kingdom where it
has been said: "Not that murderers in general are incapable of
reformation, the evidence plainly shows the contrary.
Indeed, as we shall see later" (in
paragraphs 651-652) "the experience of countries without capital punishment
indicates that the prospects of reformation are at least as favourable with
murderers as with those who have committed other kinds of serious crimes."
The hope of reforming even the worst killer is based on exeperience as well as
faith and to legitimate the death penalty even in the so called exceptional
cases where a killer is said to be beyond reformation, would be to destroy this
hope by sacrificing it at the altar of superstition and irrationality. I would
not therefore, speaking for myself, be inclined to recognise any exception,
though Justice Krishna Iyer has done so in Rajendra Prasad's case, that death
panalty may be legally permissible where it is found that a killer is such a
monster or beast that he can never be-reformed. Moreover, it may be noted, as
pointed out by Albert Camus, that in resorting to this philosophy of
elimination of social monsters, we would be approaching some of the worst ideas
of totalitarianism or the selective racism which the Hitler regime propounded.
Sir Ernest Gowers, Chairman of the Royal Commission on Capital Punishment also
emphasized the disturbing implications of this argument favouring elimination
of 309 a killer who is a social monster and uttered the following warning A
"If it is right to eliminate useless and dangerous members of the
community why should the accident of having committed a capital offence
determine who should be selected. These ar. Only a tiny proportion and not
necessarily the most dangerous.... It can lead to Nazism." This theory
that a killer who is believed to be a social monster or beast should be
eliminated in defence of the society cannot therefore be accepted and it cannot
provide a justification for imposition of death penalty even in this narrow
class of cases.
I will now turn to examine the constiutional
validity of death penalty with reference to the second goal of punishment,
namely, denunciation by the community or retribution. The argument which is
sometimes advanced in support of the death penalty is that every punishment is
to some exetent intended to express the revulsion felt by the society against
the wrong doer and the punishment must, therefore, be commensurate with the
crime and since murder is one of the gravest crimes against society, death
penalty is the only punishment which fits such crime and hence it must he held
to be reasonable. This argument is founded on the denunciatory theory of
punishment which apparently claiming to justify punishment, as the expression
of the moral indignation of the society against the wrong doer, represents in
truth and reality an attempt to legitimise the feeling of revenge entertained
by the society against him.
The denunciatory theory was put forward as an
argument in favour of death penalty by Lord Denning before the Royal Commission
on Capital Punishment:
"The punishment inflicted for grave
crimes should adequately reflect the revulsion felt by the great majority of
citizens for them. It is a mistake to consider the objects of punishment as
being deterrent or reformative or preventive and nothing else. The ultimate
justification of any punishment is not that it is a deterrent but that it is
the emphatic denunciation by the community of a crime, and from this point of
view there are some murders which in the present state of opinion demand the
most emphatic denunciation of all, namely, the death penalty.. The truth is
that some crimes are so outrageous that it, irrespective of whether it is a
deterrent or not." 310 The Royal Commission on Capital Punishment seemed
to agree with Lord Denning's view about this justification for the death
penalty and observed.".. The law cannot ignore the public demand for
retribution which heinous crimes undoubtedly provoke; it would be generally
agreed that, though reform of the criminal law ought sometimes, to give a lead
to public opinion, it is dangerous to move too far in advance of it."
Though garbed in highly euphemistic language by labelling the sentiment
underlying this observation as reprobation and not revenge, its implication can
hardly be disguised that the death penalty is considered necessary not because
the preservation of the society demands it, but because the society wishes to
avenge itself for the wrong done to it. Despite its high moral tone and phrase,
the denunciatory theory is nothing but an echo of what Stephen said in rather
strong language: "The criminal law stands to the passion of revenge in
much the same relation as marriage to the sexual appetite." The
denunciatory theory is a remnant of a primitive society which has no respect for
the dignity of man and the worth of the human person and seeks to assuage its
injured conscience by taking revenge on the wrong doer. Revenge is an
elementary passion of a brute and betrays lack of culture and refinement. The
manner in which a society treats crime and criminals affords the surest index
of its cultural growth and development. Long ago in the year 1910 Sir Winston
Churchill gave expression to this social truth when he said in his inimitable
language:
"The mood and temper of the public with
regad to the treatment of crime and the criminals is one of the most unfailing
tests of civilization of any country. A calm dispassionate recognition of the
right of accused, and even of the convicted, criminal against the State, a
constant heart searching by all charged with the duty of punishment tireless
efforts towards the discovery of curative and , regenerative processes,
unfailing faith that there is a treasure if you can only find it in the heart
of every man-these are the symbols, which, in treatment of crime and the
criminals, mark and measure the stored-up strength of a nation and are sign and
proof of the living virtue in it.- A society which is truly cultured-a society
which is reared on a spiritual foundation like the Indian society-can never
harbour a 311 feeling of revenge against a wrong doer. On the contrary, it
would A try to reclaim the wrong doer and find the treasure that is in his
heart. The wrong doer is as much as part of the society as anyone else and by
exterminating him, would the society not injure itself? If a limb of the human
body becomes diseased, should we not try to cure it instead of amputating it? Would
the human body not be partially disabled: would it not be rendered imperfect by
the .amputation ? Would the amputation not leave a scar on the human body? Would
the human body not cease to be what it was intended by its maker? But if the
diseased limb can be cured, would it not be so much better that the human body
remains intact in all its perfection. Similarly the society also would benefit
if one of its members who has gone astray and done some wrong can be reformed
and regenerated. It will strengthen the fabric of the society and increase its
inner strength and vitality. Let it not be forgotten that no human being is
beyond redemption. There is divinity in every human being, if only we can
create conditions in which it can blossom forth in its full glory, and
effulgence. It can dissolve the dross of criminality and make God out of man.
"Each soul", said Shri Ramakrishna
Paramhansa, "is potentially divine" and it should be the endeavour of
the society to reclaim the wrong doer and bring out the divinity J in him and
not to destroy him in a fit of anger or revenge. Retaliation can have no place
in a civilised society and particularly in the Land of Buddha and Gandhi.
The law of Jesus must prevail over the lex
tallionis of Moses, "Thou shalt not kill" must penologically over
power "eye for an eye and tooth for a tooth." The society has made
tremendous advance in the last few decades and today the concept of human
rights has taken firm root in our soil and there is a tremendous wave of
consciousness in regard to the dignity and divinity of man. To take human life
even with the sanction of the law and under the cover of judicial authority, is
retributive barbarity and violent futility:
travesty of dignity and violation of the
divinity of man. So long as the offender can be reformed through the
rehabilitatory therapy which may be administered to him in the prison or other
correctional institute and he can be reclaimed as a useful citizen and made
conscious of the divinity within him by techniques such as meditation, how can
there be any moral justification for liquidating him out of existence ? In such
a case, it would be most unreasonable and arbitrary to extinguish the flame of
life within him, for no social purpose would be served and no constitutional
value advanced by doing so. I have already pointed out that death penalty runs
counter to the reformatory theory of punishment and I shall presently discuss
the deterrent aspect of death penalty and show that death penalty has not
greater deterrent effect than life imprisonment. The only ground on which the
death penalty may therefore be sought to be justified is reprobation which has
already pointed out, is nothing but a different name for revenge and
retaliation. But in a civilised society which believes in the dignity and worth
of the human person, which acknowledges and protects the right to life as the
most precious possession of mankind, which recognises the divinity in man and
describes a his kind as "Amaratsaya Putra" that is "children of
Immortality", it is difficult to appreciate now retaliatory motivation can
ever be countenanced as a justificatory reason. This reason is wholly
inadequate since it does not justify punishment by its results, but it merely
satisfies the passion for revenge masquerading as righteousness.
I may point that in holding this view I am
not alone, for I find that most philosophers have rejected retribution as a
proper goal of punishment. Plato wrote:
"He who desires to inflict rational
punishment does not retaliate for a past wrong which cannot be undone; he has
regard to the future, and is desirous that the man who is punished, and he who
sees him punished, may be deterred from doing wrong again. He punishes for the
sake of prevention...." Even in contemporary America, it is firmly settled
that retribution has no proper place in our criminal system. The New York Court
of Appeals pointed out in a leading judgment in People v. Oliver:
"The punishment or treatment of
offenders is directed toward one or more of three ends: (I) to discourage and
act as a deterrent upon future criminal activity. (2) to confine the offender
so that he may not harm society; and (3) to correct and rehabilitate the
offender. There is no 313 place in the scheme for punishment for its own sake,
the product simply of vengeance or retribution." Similarly, the California
Supreme Court has held that "to conclude that the Legislature was
motivated by a desire for vengeance" would be "a conclusion not
permitted in view of modern theories of penology." The same view has been
adopted in official studies of capital punishment. The British Royal Commission
on Capital Punishment concluded that "modern penological thought discounts
retribution in the sense of vengeance. "The Florida Special Commission on
capital punishment, which recommended retention of the death penalty on other
grounds, rejected "vengeance or retaliation" as justification for the
official taking of life." The reason for the general rejection of
retribution as a purpose of the criminal system has been stated concisely by
Professors Michael and Wechsler:
"Since punishment consists in the
infliction of pain it is, apart from its consequence, an evil:
consequently it is good and therefore just
only if and to the degree that it serves the common good by advancing the
welfare of the person punished or of the rest of the population-Retribution is
itself unjust since it requires some human beings to inflict pain upon others,
regardless of its effect upon them or upon the social welfare." The Prime
Minister of Canada Mr. Pierre Trudeaux, addressing the Canadian Parliament,
pleading for abolition of death penalty, posed a question in the same strain:
"Are we as a society so lacking in
respect for ourselves, so lacking in hope for human betterment, so socially
bankrupt that we are ready to accept state vengeance as our penal
philosophy" It is difficult to appreciate how a feeling of vengeance
whether on the individual wronged or the society can ever be regarded as a
healthy sentiment which the State should foster. It is true that when a heinous
offence is committed not only the individual who suffers 314 as a result of the
crime but the entire society is oppressed with a feeling of revulsion, but as
Arthur Koestler has put it in his inimitable style in his "Reflections on
Hanging":
"Though easy to dismiss in reasoned
argument on both moral and logical grounds, the desire for vengeance has deep,
unconscious roots and is roused when we feel strong indignation or
revulsion-whether the reasoning mind approves or not. This psychological fact
is largely ignored in abolitionist propaganda-yet it has to be accepted as a
fact. The admission that even confirmed abolitionists are not proof against
occasional vindictive impulses does not mean that such impulses should be
legally sanctioned by society, any more than we sanction some other unpalatable
instincts of our biological inheritance. Deep inside every civilized being
there lurks a tiny Stone Age man, dangling a club to robe and rape, and
screaming an eye for an eye. But we would rather not have that little fur-clad
figure dictate the law of the land." I have no doubt in my mind that if
the only justification for the death penalty is to be found in revenge and
retaliation, it would be clearly arbitrary and unreasonable punishment falling
foul of Articles 14 and 21.
I must then turn to consider the deterrent
effect of death penalty, for deterrence is undoubtedly an important goal of
punishment.
The common justification which has been put
forward on behalf of the protagonists in support of capital punishment is that
it acts as a deterrent against potential murderers.
This is, to my mind, a myth, which has been
carefully nurtured by a society which is actuated not so much by logic or
reason as by a sense of retribution. It is really the belief in retributive
justice that makes the death penalty attractive but those supporting it are not
inclined to confess to their instinct for retribution but they try to bolster
with reasons their unwillingness to abandon this retributive instinct and seek
to justify the death penalty by attribution to it a deterrent effect. The
question whether the death penalty has really and truly 315 a deterrent effect
is an important issue which has received careful attention over the last 40
years in several countries including the United States of America. Probably no
single subject in criminology has been studied more.
Obviously, no penalty will deter all murders
and probably any severe penalty will deter many. The key question therefore is
not whether death penalty has a deterrent effect but whether death penalty has
a greater deterrent effect than life sentence. Does death penalty deter
potential murderers better than life imprisonment ? I shall presently consider
this question but before I do so let me repeat that the burden of showing that
death penalty is not arbitrary and unreasonable and serves a legitimate penological
goal is on the State. I have already given my reasons for taking this view on
principle but I find that the same view has also been taken by the Supreme
Judicial Court of Massachusettes in "Commonwealth v. O'Neal (No.2)(1)
where it has been held that because death penalty impinges on the right to life
itself, the onus lies on the State to show a compelling State interest to
justify capital punishment and since in that case the State was unable to
satisfy this onus, the Court ruled that death penalty for murder committed in
the course of rape or attempted rape was unconstitutional. The Supreme Judicial
Court of Massachusttes also reiterated the same view in opinion of the Justices
364 N.E. 2d 184 while giving its opinion whether a Bill before the House of
Representatives was compatible with Article 26 of the Constitution which
prohibits cruel or unusual punishment. The majority Judges stated hat Article
26 "forbids the imposition of a death penalty in this Commonwealth in the
absence of a showing on the part of the Commonwealth that the availability of
that penalty contributes more to the achievement of a legitimate State
purpose-for example, the purpose of deterring criminal conduct than the
availability in like cases of the penalty of life imprisonment." It is
therefore clear that the burden rests on the State to establish by producing
material before the Court or otherwise, that death penalty has greater
deterrent effect than life sentence in order to justify its imposition under
the law. If the State fails to discharge this burden which rests upon it, the
Court would have to hold that death penalty has not been shown to have greater
deterrent effect and it does not therefore serve a rational legislative
purpose.
316 The historical course through which death
penalty has passed in the last 150 years shows that the theory that death
penalty acts as a greater deterrent than life imprisonment is wholly unfounded.
Not more than a century and a half ago, in a civilised country like England,
death penalty was awardable even for offences like shop lifting, cattle
stealing and cutting down of trees. It is interesting to note that when Sir
Samuel Romully brought proposals for abolition of death penalty for such
offences, there was a hue and cry from lawyers, judges, Parliamentarians and
other so called protectors of social order and they opposed the proposals on
the grounds that death penalty acted as a deterrent against commission of such
offences and if this deterrent was removed, the consequences would be disastrous.
The Chief Justice said while opposing
abolition of capital punishment for shop-lifting:
"Where terror of death which now, as the
law stood, threatened the depredator to be removed, it was his opinion the
consequence would be that shops would be liable to unavoidable losses from
depredations and, in many instances, bankruptcy and ruin must become the lot of
honest and laborious tradesmen. After all that had been said in favour of this
speculative humanity, they must all agree that the prevention of crime should
be the chief object of the law; and terror alone would prevent the commission
of that crime under their consideration." and on a similar Bill, the Lord
Chancellor remarked:
"So long as human nature remained what
it was, the apprehension of death would have the most powerful co operation in
deterring from the commission of crimes;
and he thought it unwise to withdraw the
salutary influence of that terror." The Bill for abolition of death
penalty for cutting down a tree was opposed by the Lord Chancellor in these
terms:
"It did undoubtedly seem a hardship that
so heavy a punishment as that of death should be affixed to the cutting down of
a single tree, or the killing or wounding of a cow.
317 But if the Bill passed in its present
state a person might root up or cut down whole acres of plantations or destroy
the whole of the stock of cattle of a farmer without being subject to capital
punishment." Six times the House of Commons passed the Bill to abolish
capital punishment for shop lifting and six times the House of Lords threw out
the Bill, the majority of one occasion including all the judicial members, one
Arch Bishop and six Bishops. It was firmly believed by these opponents of
abolition that death penalty acted as a deterrent and if it was abolished,
offences of shop-lifting etc would increase.
But it is a matter of common knowledge that
this belief was wholly unjustified and the abolition of death penalty did not
have any adverse effect on the incidence of such offences. So also it is with
death penalty for the offence of murder. It is an irrational belief
unsubstantiated by any factual data or empirical research that death penalty
acts as a greater deterrent than life sentence and equally unfounded is the
impression that the removal of death penalty will result in increase of
homicide. The argument that the rate of homicide will increase if death penalty
is removed from the statute book has always been advanced by the established
order out of fear psychosis, because the established order has always been
apprehensive that if there is any change and death penalty is abolished, its
existence would be imperilled. This argument has in my opinion no validity
because, beyond a superstitious belief for which there is no foundation in fact
and which is based solely on unreason and fear, there is nothing at all to show
that death penalty has any additionally deterrent effect not possessed by life
sentence. Arthur Koestler tells us an interesting story that in the period when
pick-pockets were punished by hanging in England, other thieves exercised their
talents in the crowds surrounding the scaffold where the convicted pick-pocket
was being hanged. Statistics compiled during the last 50 years in England show
that out of 250 men hanged, 170 had previously attended one or even two public
executions and yet they were not deterred from committing the offence of murder
which ultimately led to their conviction and hanging. It is a myth nurtured by
superstition and fear that death penalty has some special terror for the
criminal which acts as a deterrent against the commission of the crime. Even an
eminent judge like Justice Frank Further of the Supreme Court of the United
States expressed the same opinion when he said in the course of his 318
examination before the Royal Commission on Capital Punishment:
"I think scientifically the claim of
deterrence is not worth much." The Royal Commission on Capital Punishment,
after four years of investigation which took it throughout the continent and
even to the United States, also came to the same conclusion:
"Whether the death penalty is used or
not and whether executions are frequent or not, both death penalty states and
abolition states show rates which suggests that these rates are conditioned by
other factors than the death penalty." and then again, it observed in
support of this conclusion:
"The general conclusion which we have
reached is that there is no clear evidence in any of the figures we have
examined that the abolition of capital punishment has led to an increasing
homicide rate or that its reintroduction has led to a fall." Several
studies have been carried out in the United States of America for the purpose
of exploring the deterrent effect of death penalty and two different methods
have been adopted. The first and by far the more important method seeks to
prove the case of the abolitionists by showing that the abolition of capital
punishment in other countries has not led to an increase in the incidence of
homicide. This is attempted to be shown either by comparing the homicide
statistics of countries where capital punishment has been abolished with the
statistics for the same period of countries where it has been retained or by
comparing statistics of a single country in which capital punishment has been
abolished, for periods before and after abolition or where capital punishment
has been reintroduced, then for the period before and after its reintroduction.
The second method relates to comparison of the number of executions in a
country in particular years with the homicide rate in the years succeeding.
Now, so far as the comparison of homicide statistics of countries which have
abolished capital punishment with the statistics of countries which have
retained it, is concerned, it may not yield any definitive inference, because
in most cases abolition or retention of death 319 penalty may not be the only
differentiating factor but there may be other divergent social, cultural or
economic factors which may affect the homicide rates. It is only if all other
factors are equal and the only variable is the existence or non-existence of
death penalty that a proper comparison can be made for the purpose of
determining whether death penalty has an additional deterrent effect which life
sentence does not possess, but that would be an almost impossible controlled
experiment. It may however be possible to find for comparison a small group of
countries or States, preferably contiguous and closely similar in composition
of population and social and economic conditions generally, in some of which
capital punishment has been abolished and in others not. Comparison of homicide
rates in these countries or States may afford a fairly reliable indication
whether death penalty has a unique deterrent effect greater than that of life
sentence. Such groups of States have been identified by Professor Sellin in the
United States of America and similar conditions perhaps exist also in
Newzealand and the Australian States. The figures of homicide rate in these
States do not show any higher incidence of homicide in States which have
abolished death penalty than in those which have not. Professor Sellin points
out that the only conclusion which can be drawn from these figures is that
there is no clear evidence . Of any influence of death penalty on the homicide
rates of these States. In one of the best known studies conducted by him,
Professor Sellin compared homicide rates between 1920 and 1963 in abolition
States with the rates in neighboring and similar retention States. He found
that on the basis of the rates alone, it was impossible to identify the
abolition States within each group. A similar study comparing homicide rates in
States recently abolishing the death penalty and neighboring retention States
during the 1960's reached the same results. Michigan was the first State in the
United States to abolish capital punishment and comparisons between Michigan
and the bordering retention states of Ohio and Indiana States with comparable
demographic characteristics did not show any significant differences in
homicide rates.
Professor Sellin therefore concluded:
"You cannot tell from .... The homicide rates alone, in contiguous, which
are abolition and which are retention states; this indicates that capital
crimes are dependent upon factors other than the mode of punishment."
Students of capital punishment have also studied the effect of abolition and
reintroduction of death penalty upon the homicide 320 rate in a single state.
If death penalty has a significant deterrent effect? abolition should produce a
rise in homicides apart from the general trend and reintroduction should
produce a decline. After examining statistics from 11 states, Professor Sellin
concluded that "there is no evidence that the abolition of capital
punishment generally causes an increase in criminal homicides, or that its
reintroduction is followed by a decline. The explanation of changes in homicide
rates must be sought elsewhere." Some criminologists have also examined
the short term deterrent effects of capital punishment. One study compared the
number of homicides during short periods before and after several
well-publicized executions during the twenties and thirties in Philadelphia. It
was found that there were significantly more homicides in the period after the
executions than before-the opposite of what the deterrence theory would suggest
other studies have also shown that in those localities where capital punishment
is carried out, the incidence of homicide does not show any decline in the
period immediately following well-publicized executions when, if death penalty
had any special deterrent effect, such effect would be greatest. Sometimes, as
Bowers points out in his book on "Executions in America" the
incidence of homicide is higher. In short, there is no correlation between the
ups and downs of the homicide rate on the one hand and the presence or absence
of the death penalty on the other.
I may also refer to numerous other studies
made by jurists and sociologists in regard to the deterrent effect of death
penalty Barring only one study made by Ehrlich to which I shall presently
refer, all the other studies are almost unanimous that death penalty has no
greater deterrent effect than life imprisonment. Dogan D. Akman, a Canadian
Criminologist, in a study made by him on the basis of data obtained from the
records of all Canadian penitentiaries for the years 1964 and 1965 observed
that the threat of capital punishment has little influence on potential
assaulters. So also on the basis of comparison of homicide and execution rates
between Queensland and other Australian States for the period 1860-1920, Barber
and Wilson concluded that the suspension of capital punishment from 1915 and
its abolition from 1922 in Qneensland did not have any significant effect on
the murder rate. Chambliss, another Criminologist, also reached the same
conclusion in his Article on "Types of Deviance and the Effectiveness of
Legal Sanctions" (1967) Wisconsin 321 Law Review 703 namely, that
"given the preponderance of evi- dence, it seems safe to conclude that
capital punishment does not act as an effective deterrent to murder." Then
we have the opinion of Fred J. Cook who says in his Article on "Capital
Punishment: Does it Prevent Crime ?" that "abolition of the death penalty
may actually reduce rather than encourage murder." The European Committee
on Crime Problems of the Council of Europe gave its opinion on the basis of
data obtained from various countries who are Members of the Council of Europe
that these data did not give any "positive indication regarding the value
of capital punishment as a deterrent". I do not wish to burden this
judgment with reference to all the studies which have been conducted at
different times in different parts of the world but I may refer to a few of them,
namely "Capital Punishment as a Deterrent to Crime in Georgia" by
Frank Gibson, "The Death Penalty in Washington State" by Hayner and
Crannor, Report of the Massachusett Special Commission Relative to the
Abolition of the Death Penalty in Capital Cases, "The use of the Death
Penalty-Factual Statement" by Walter Reckless, "Why was Capital
Punishment resorted in Delaware" by Glenn W. Samuelson, "A Study in
Capital Punishment" by Leonard o. Savitz, "The Deterrent Influence of
the Death Penalty" by Karl F. Schuessler, "Murder and the Death
Penalty" by E.H. Sutherland, "Capital Punishment: A case for
Abolition" by Tidmarsh, Halloran and Connolly, "Can the Death Penalty
Prevent Crime" by George B. Vold and "Findings on Deterrence with
Regard to Homicide" by Wilkens and Feyerherm. Those studies, one and all,
have taken the view that "statistical findings and case studies converge
to disprove the claim that the death penalty has any special deterrent
value" and that death penalty "fails as a deterrent measure".
Arthur Koestler also observes in his book on "Reflections on Hanging"
that the figures obtained by him from various jurisdictions which have
abolished capital punishment showed a decline in the homicide rate following
abolition. The Report made by the Department of Economic and Social Affairs of
the United Nations also reaches the conclusion that "the information
assembled confirms the now generally held opinion that the abolition or
..suspension of death penalty does not have the immediate effect of appreciably
increasing the incidence of crime." These various studies to which I have
referred clearly establish beyond doubt that death penalty does not have any
special deterrent effect which life sentence does not posses and that in any
event there is no evidence at all to suggest that death penalty has any such
special deterrent effect.
322 There is unfortunately no empirical study
made in India to assess, howsoever imperfectly, the deterrent effect of death
penalty. But we have the statistics of the crime of murder in the former States
of Travancore and Cochin during the period when the capital punishment was on
the statute book as also during the period when it was kept in abeyance.
These figures have been taken by me from -
the Introduction of Shri Mohan Kumar Mangalam to the book entitled "Can
the State Kill its Citizen" brought out by Shri Subramaniam:
Statistics of murder cases during the period
when Capi- tal Punishment was kept in abeyance.
Year Travancore Cochin Total for Travan- core
& Cochin 1945 111 cases 22 133 1946 135 cases 13 148 1947 148-cases 26 174
1948 160 cases 43 203 1949 114 cases 26 140 1950 125 cases 39 164 Total 793 169
962 Statistics of murder cases during the period when capi- tal punishment was
in vogue.
1951 141 cases 47 188 1952 133 cases 32 165
1953 146 cases 54 200 1954 114 cases 57 171 1955 99 cases 30 129 1956 97 cases
17 114 Total 730 237 967 323 These figures show that the incidence of the crime
murder did not A increase at all during the period of six years when the
capital punishment was in abeyance. This is in line with the experience of
ether countries where death penalty has been abolished.
I must at this stage refer to the study
carried out by Ehrlich on which the strongest reliance has been placed by
Sarkaria, J. in the majority judgment. Ehrlich was the first to introduce
regression analysis in an effort to isolate the death penalty effect, if it
should exist, uncontaminated by other influences on the capital crirme rate.
His paper was catapulated into the centre of legal attention even before it was
published, when the Solicitor General of the United States cited it in
laudatory terms in his brief in Fowler v. North Cerolina(l) and delivered
copies of it to the court.
The Solicitor General called it an
"important empirical support for the a priori logical belief that use of
the death penalty decrease the number of murders." In view of the evidence
available upto that time, Ehrlich's claim was indeed formidable both in
substance and precision. The conclusion he reached was: "an additional
execution per - year.. May have resulted in . Seven or eight fewer
murders." The basic data from which he derived this conclusion were the
executions and the homicide rates as recorded in the United States during the
years 1933 to 1969, the former generally decreasing, the latter, especially
during the sixties, sharply increasing. Ehrlich considered simultaneously with
the execution and homicide rates, other variables that could affect the capital
crime rate and sought to isolate the effect of these variables through the
process of regression analysis. It is not necessary for the purpose of the
present judgment to explain this process of mathematical purification or the
various technical refinements of this process, but it is sufficient to point
out that the conclusion reached by Ehrlich was that death penalty had a greater
- deterrent effect than the fear of life imprisonment. Ehrlich's study because
it went against all the hitherto available evidence, received extra ordinary
attention from the scholarly community.
First, Peter Passell and John Taylor
attempted to replicate Ehrlich's findings and found that they stood scrutiny
only under an unusually restrictive set of circumstances. They found, for
example that the appearance of deterrence is produced only when 324 the
regression equation is in logarathmic form and in the more conventional linear
regression frame work, the deterrent effect disappeared. They also found that
no such effect emerged when data for the years after 1962 were omitted from the
analysis and only the years 1953-61 were considered. Kenneth Avio of the
University of Victoria made an effort to replicate Ehrlich's findings from
Canadian experience but that effort also failed and the conclusion reached by
the learned jurist was that "the evidence would appear to indicate that
Canadian offenders over the period 1926-60 did not behave in a manner
consistent with an effective deterrent effect of capital punishment."
William Bowers and Glenn Pierce also made an attempt to replicate Ehrlich's
results and in replicating Ehrlich's work they confirmed the Passel-Taylor
findings that Ehrlich's results were extremely sensitive as to whether the
logarithmic specification was used and whether the data for the latter part of
1960's were included. During 1975 the Yale Law Journal published a series of
Articles reviewing the evidence on the deterrent effect of death penalty and in
the course of an Article in this series, Ehrlich defended his work by
addressing himself to some of the criticism raised against his study. Hans
Zeisel, Professor Emeritus of Law and Sociology in the University of Chicago
points out in his article on the deterrent effect of death penalty; Facts v. Faith
that in this article contributed by him to the Yale Law Journal, Ehrlich did
refute some criticisms but the crucial ones were not met. Ehrlich in this
Article referred to a second study made by him, basing it this time on a
comparison by States for the years 1940 and 1950. He claimed that this study
bolstered his original thesis but conceded that his findings were
"tentative and inconclusive". In the mean time Passell made a
State-by-State comparison for the years 1950 and 1960 and as a result of his
findings, concluded that "we know of no reasonable way of interpreting the
cross sections (i.e. State-by State) data that would lend support to the
deterrence hypothesis." A particularly extensive review of Ehrlich's time
series analysis was made by a team led by Lawrence Klein, President of the
American Economic Association. The authors found serious methodological
problems with Ehrlich's analysis. They raised questions about his failure to
consider the feedback effect of crime on the economic variables in his model,
although he did consider other feedback effects in his analysis. They found
some of Ehrlich's technical manipulations to be superfluous and tending to
obscure the accuracy of his estimates. They, too, raised questions about 325
variables omitted from the analysis, and the effects of these omissions on the
findings.
Like Passell Taylor and Bowers-Pierce, Klein
and his collaborators replicated Ehrlich's results, using Ehrlich's own data
which by that time he had made available. As in previous replications,
Ehrlich's results were found to be quite sensitive to the mathematical
specification of the model and the inclusion of data at the recent end of the
time series.
By this time, Ehrlich's model had been
demonstrated to be peculiar enough. Klein went on to reveal further
difficulties. One was that Ehrlich's deterrence finding disappeared after the
introduction of a variable rejecting the factors that caused other crimes to
increase during the latter part of the period of analysis. The inclusion of
such a variable would seem obligatory not only to substitute for the factors
that had obviously been omitted but also to account for interactions between
the crime rate and the demographic characteristics of the population.
Klein also found Ehrlich's results to be
affected by an unusual construction of the execution rate variable, the central
determinant of the analysis. Ehrlich constructed this variable by using three
other variables that appeared elsewhere in his regression model: the estimated
homicide arrest rate the estimated homicide conviction rate, and the estimated number
of homicides. Klein showed that with this construction of the execution rate, a
very small error in the estimates of any of these three variables produced
unusually strong spurious appearances of a deterrent effect.
He went on to show that the combined effect
of such slight errors in all three variables was likely to be considerable, and
that in view of all these considerations, Ehrlich's estimates of the deterrent
effect were so weak that they "could be regarded as evidence.. (of) a
counter deterrent effect of capital punishment." In view of these serious
problems with Ehrlich's analysis, Klein concluded: "We see too many
plausible explanations for his finding a deterrent effect other than the theory
that capital punishment deters murder" and further observed:
"Ehrlich's results cannot be used at this time to pass judgment on the use
of the death penalty." This is the analysis of the subsequent studies of
Passell and Taylor, Bowers and Pierce and Klein and his colleagues made by Hans
326 Zeisel in his Article on "The deterrent effect of the Death Penalty:
Facts v. Faith". These studies which were definitely more scientific and
refined than Ehrlich's demolish to a large extent the validity of the
conclusion reached by Ehrlich and establish that death penalty does not possess
an additional deterrent effect which life sentence does not. But, according to
Hans Zeisel, the final blow to the work of Ehrlich came from a study of Brian
Forst, one of Klein's collaborators on the earlier study. Since it had been
firmly established that the Ehrlich phenomenon, if it existed emerged from
developments during the sixties, Forst concentrated on that decade. He found a
rigorous way of investigating whether the ending of executions and the sharp
increase in homicides during this period was casual or coincidental. The power
of Forst's study derives from his having analysed changes both over time and
across jurisdictions. The aggregate United States time series data Ehrlich used
were unable to capture important regional differences. Moreover, they did not
vary as much as cross- state observations, hence they did not provide as rich
an opportunity to infer the effect of changes in executions on homicides.
Forst's analysis, according to Hans Zeisel, was superior to Ehrlich's and it
led to a conclusion that went beyond that of Klein. "The findings"
observed Forst "give no support to the hypothesis that capital punishment
deters homicide" and added: "our finding that capital punishment does
not deter homicide is remarkably robust with respect to a wide range of
alternative constructions." It will thus be seen that The validity of
Ehrlich's study which has been relied upon very strongly by Sarkaria J. in the
majority judgment is considerably eroded by the studies carried out by leading
criminologists such as Passell and Taylor, Bowers and Pierce, Klein and his
colleagues and Forst and with the greatest respect, I do not think that
Sarkaria, J. speaking on behalf of the majority was right in placing reliance
on that study. The validity, design and findings of that study have been
thoroughly discredited by the subsequent studies made by these other
econometricians and particularly by the very scientific and careful study
carried out by Forst. I may point out that apart from Ehrlich's study there is
not one published econometric analysis which supports Ehrlich's results.
I may also at this stage refer once again to
the opinion expressed by Professor Sellin. The learned Professor after a
serious and thorough study of the entire subject in the United States on behalf
327 of the American Law Institute stated his conclusion in these terms:
"Any one who carefully examines the
above data is bound to arrive at the conclusion that the death penalty as we
use it exercises no influence on the extent or fluctuating rate of capital
crime. It has failed as a deterrent.
(Emphasis supplied.) So also in another part
of the world very close to our country, a Commission of Inquiry on capital
punishment was appointed by late Prime Minister Bhandarnaike of Shri Lanka and
it reported:
"If the experience of the many countries
which have suspended or abolished capital punishment is taken into account,
there is in our view cogent evidence of the unlikelihood of this 'hidden
protection'...It is, therefore, our view that the statistics of homicide in
Ceylon when related to the social changes since the suspension of the death
penalty in Ceylon and when related to the experience of other countries tend to
disprove the assumption of the uniquely deterrent effect of the death penalty,
and that in deciding on the question of reintroduction or abolition of the
capital punishment reintroduction cannot be justified on the argument that it
is a more effective deterrent to potential killers than the alternative or protracted
imprisonment." It is a strange irony of fate that Prime Minister
Bhandarnaike who suspended the death penalty in Sri Lanka was himself murdered
by a fanatic and in the panic that ensued death penalty was reintroduced in Sri
Lanka.
The evidence on whether the threat of death
penalty has a deterrent effect beyond the threat of life sentence is therefore
overwhelmingly on one side. Whatever be the measurement yardstick adopted and
howsoever sharpened may be the analytical instruments they have not been able
to discover any special deterrent effect. Even regression analysis, the most
sophisticated of these instruments after careful application by the scholarly
community, has failed to detect special deterrent effect in death penalty which
is not to be found in life imprisonment. One answer which the protagonists of capital
punishment try to offer to combat the inference arising from these studies is
that one cannot prove that capital punishment does not deter murder because
people who are deterred by it do not report good news to their police
departments. They argue that there are potential murderers in our midst who
would be deterred from killing by the death penalty, but would not be deterred
by life imprisonment and there is no possible way of knowing about them since
these persons do not commit murder and hence are not identified.
Or to use the words of Sarkaria, J.
"Statistics of deterred potential murderers are difficult to unravel as
they remain hidden in the innermost recesses of their mind." But this
argument is plainly a unsound and cannot be sustained. It is like saying, for
example, that we have no way of knowing about traffic safety because motorists
do not report when they are saved from accidents by traffic safety programmes
or devices. That however cannot stop us from evaluating the effectiveness of
those programmes and devices by studying their effect on the accident rates
where they are used for a reasonable time. Why use a different standard for
evaluating the death penalty, especially when we can measure its effectiveness
by comparing homicide rates between countries with similar social and economic
conditions in some of which capital punishment has been abolished and in others
not or homicide rates in the same country where death penalty has been
abolished or subsequently reintroduced. There is no doubt that if death penalty
has a special deterrent effect not possessed by life imprisonment, the number
of those deterred by capital punishment would appear statistically in the
homicide rates of abolitionist jurisdictions but according to all the evidence
gathered by different studies made by jurists and criminologists, this is just
not to be found.
The majority speaking through Sarkaria, J.
has observed that "in most of the countries of the world including India,
a very large segment of the population including noteable penologists, Judges,
jurists, legislators and other enlightened people believe that death penalty
for murder and certain other capital offences does serve as a deterrent and a
greater deterrent than life imprisonment." I do not think this statement
represents the correct factual position. It is of course true that there are
some penologists, judges, jurists, legislators and other people who believe
that death penalty acts as a greater deterrent but it would not be correct to
say that they form a large segment of the population. The enlightened opinion
in the world, 329 as pointed out by me, is definitely veering round in favour
of a abolition of death penalty. Moreover, it is not a rational conviction but
merely an unreasoned belief which is entertained by some people including a few
penologists, judges, jurists and legislators that death penalty has a uniquely
deterrent effect. When you ask these persons as to what is the reason why they
entertain this belief, they will not be able to give any convincing answer
beyond stating that basically every human being dreads death and therefore
death would naturally act as a greater deterrent than life imprisonment. That
is the same argument advanced by Sir James Fitz James Stephen, the draftsman of
the Indian Penal Code in support of the deterrent effect of capital punishment.
That great Judge and author said in his Essay on Capital Punishment:
"No other punishment deters men so
effectually from committing crimes as the punishment of death. This is one of
those propositions which it is difficult to prove simply because they are in
themselves more obvious than any proof can make them. It is possible to display
ingenuity in arguing against it, but that is all. The whole experience of
mankind is in the other direction. The threat of instant death is the one to
which resort has always been made when there was an absolute necessity of
producing some results.... No one goes to certain inevitable death except by
compulsion.
Put the matter the other way, was there ever
yet a criminal who when sentenced to death and brought out to die would refuse
the offer of a commutation of a sentence for a severest secondary punishment? Surely
not. Why is this ? It can only be because 'all that a man has will be given for
his life'. In any secondary punishment, however terrible, there is hope, but
death is death; its terrors - cannot be described more forcibly." The Law
Commission in its thirty-fifth report also relied largely on this argument for
taking the view that "capital punishment does act as a deterrent." It
set out the main points that weighed with it in arriving at this conclusion and
the first and foremost amongst them was that:
"Basically every human being dreads
death", suggesting that death penalty has therefore a greater deterrent
effect than any other punishment. But this argument is not valid and a little
scrutiny will reveal that it is wholly unfounded. In the first place, 330 even
Sir James Fitz James Stephen concedes that the proposition that death penalty
has a uniquely deterrent effect not possessed by any other punishment, is one
which is difficult to prove, though according to him it is Self- evident.
Secondly, there is a great fallacy underlying the argument of Sir James Stephen
and the Law Commission. This argument makes no distinction between a threat of
certain and imminent punishment which faces the convicted murderer and the
threat of a different problematic punishment which may or may not influence a
potential murderer Murder may be unpremeditated under the stress of some sudden
outburst of emotion or it may be premeditated after planning and deliberation.
Where the murder is unpremeditated, as for example, where it is the outcome of
a sudden argument or quarrel or provocation leading to uncontrollable anger or
temporary imbalance of the mind-and most murders fall within this category-any
thought of possibility of punishment is obliterated by deep emotional
disturbance and the penalty of death can no more deter than any other penalty.
Where murder is premeditated it may either be the result of lust, passion,
jealousy hatred frenzy of frustration or it may be a cold calculated murder for
monetary or other consideration. The former category of murder would conclude
any possibility of deliberation or a weighing of consequences, the thought of
the likelihood of execution after capture, trial and sentence would hardly
enter the mind of the killer. So far as the latter category of murder is concerned,
several considerations make it unlikely that the death penalty would play any
significant part in his thought. Since both the penalties for murder, death as
well as life sentence, are as severe as to destroy the future of any one
subjected to them, the crime would not be committed by a rational man unless he
thinks that there is little chance of detection. What would weigh with him in
such a case is the uncertainty of detection and consequent punishment rather
than the nature of punishment. It is not the harshness or severity of death
penalty which acts as a deterrent. A life sentence of twenty years would act as
an equally strong deterrent against crime as death penalty, provided the killer
feels that the crime would not go unpunished. More than the severity of the
sentence, it is the certainty of detection and punishment that acts as a
deterrent. The Advisory Council on the Treatment of offenders appointed by the
Government of Great Britain stated in its report in 1960 "We were
impressed by the argument that the greatest deterrent to crime is not the fear
of punishment but the 331 certainty Of detection." Professor Hart
emphasized the same point, refuting the argument of Sir James Fitz James
Stephen in these words:
"This (Stephen's) estimate of the
paramount place in human motivation of the fear of death reads impressively but
surely contains a suggestion falsi and once this is detected its cogency as an
argument in favour of the death penalty for murder vanishes for there is really
no parallel between the situation of a convicted murderer over the alternative
of life imprisonment in the shadow of the gallows and the situation of the
murderer contemplating his crime. The certainty of death is one thing, perhaps
for normal people nothing can be compared with it. But the existence of the
death penalty does not mean for the murderer certainty of death now. It means
not very high probability of death in the future. And, futurity and
uncertainty, the hope of an escape, rational or irrational, vastly diminishes
the difference between death and imprisonment as , deterrent and may diminish
to vanishing point... The way in which the convicted murderer may view the
immediate prospect of the gallows after he has been caught, must be a poor
guide to the effect of this prospect upon him when he is contemplating
committing his crime." It is also a circumstance of no less significance
bearing on the question of detection effect of death penalty, that, even after
detection and arrest, the likelihood of execution for the murderer is almost
nil. In the first place, the machinery of investigation of offences is what it
is and the criminal law of our country having a tilt in favour of the accused,
the killer and look forward to a chance of acquittal at the trial. Secondly,
even if the trial results in a conviction, it would not, in all probability, be
followed by a sentence of ... , death. Whatever may have been the position
prior to the enactment of the Code of Criminal Procedure, 1973, it is now clear
that under section 354 sub-section (3), life sentence is the rule and it is
only in exceptional cases for special reasons that death sentence may be
awarded. The entire drift of the legislation is against infliction of death
penalty and the courts are most reluctant to impose it save in the rarest of
rare cases. It is interesting to note that in the last 2 years, almost every
case where death penalty is confirmed by the High Court has come up before this
Court by way of petition for 332 special leave, and, barring the case of Ranga
and Billa, I do not think there is a single case in which death penalty has
been affirmed by this Court. There have been numerous cases where even after
special leave petitions against sentence of death were dismissed, review
petitions have been entertained and death sentence commuted by this Court. Then
there is also the clemency power of the President under Article 72 and of the
Governor under Article 161 of the Constitution and in exercise of this power,
death sentence has been commuted by the President or the Governor, as the case
may be, in a number of cases. The chances of imposition of death sentence
following upon a conviction for the offence of murder are therefore extremely
slender. This is also evident from the figures supplied to a us by the
Government of India for the years 1974 to 1978 pursuant to the inquiry made by
us. During the course of the hearing, we called upon the Government of India to
furnish us statistical information in regard to following three matters,
namely, (i) the number of cases in which and the number of persons on whom
death sentence was imposed and whose death sentence was confirmed by various
High Courts in India; (ii) the number of cases in which death sentence was
executed in the various States and the various Union Territories; and (iii) the
number of cases in which death sentence was commuted by the President of India
under Article 72 or by the Governors under Article 161 of the Constitution. The
statistical information sought by us was supplied by the Government of India
and our attention was also drawn to the figures showing the total number of
offences of murder committed inter alia during the years 1974-77. These figures
showed that on an average about 17,000 offences of murder were committed in
India every year during the period 1974 to 1977, and if we calculate on the
basis of this average, the total number of offences of murder during the period
of five years from 1974 to 1978 would come to about 85,000. Now, according to
the statistical information supplied by the Government of India, out of these
approximately 85,000 case of murder, there were only 288 in which death
sentence was imposed by the sessions court and confirmed by the High Courts and
out of them, in 12 cases death sentence was commuted by the President and in 40
cases, by the Governors and death sentence was executed in only 29 cases. It
will thus be seen that during the period of five years from 1974 to 1978, there
was an infinite singly small number of cases, only 29 out of an aggregate
number of approximately 85,000 cases of murder, in which death sentence was
executed. Of course, the figures supplied by the 333 Government of India did
not include the figures from the States of A Bihar, Jammu and Kashmir, West
Bengal and Delhi Administration but the figures from these three States and
from the Union Territory of Delhi would not make any appreciable difference. It
is obvious therefore that even after conviction in a trial, there is high
degree of probability that death sentence may not be imposed by the sessions
court and even If death sentence is imposed by the sessions court, it may not
be confirmed by the High Court and even after confirmation by the High Court,
it may not be affirmed by this Court and lastly, even if affirmed by this
Court, it may be commuted by the President of India under Article 72 or by the
Governor under Article 161 of the Constitution in exercise of the power of
clemency. The possibility of execution pursuant to a sentence of death is
therefore almost negligible, particularly after the enactment of section 354
sub-section (3) of the Code of Criminal Procedure 1973 and it is difficult to
see how in these circumstances death penalty can ever act as a deterrent. The
knowledge that . death penalty is rarely imposed and almost certainly, it will
not be imposed takes away whatever deterrent value death penalty might
otherwise have. The expectation, bordering almost on certainty, that death
sentence is, extremely unlikely to be imposed is a factor that would condition
the behaviour of the offender and death penalty cannot in such a situation have
any deterrent effect. The risk of death penalty being remote and improvable, it
cannot operate as a greater deterrent than the threat of life imprisonment.
Justice Brennan and Justice White have also expressed the same view in Furman
v. Georgia (supra), namely, that, when infrequently and arbitrarily imposed,
death penalty is not a greater deterrent to murder than is life imprisonment.
The majority speaking through Sarkaria, J.
has referred to a few decisions of this Court in which, according to majority
Judges, the deterrent value of death penalty has been judicially recognised.
But I do not think any reliance can be placed on the observations in these
decisions in support of the view that death penalty has a uniquely deterrent
effect. The learned Judges who made these observations did not have any
socio-legal data before them on the basis of which they could logically come to
the conclusion that death penalty serves as a deterrent. They merely proceeded
upon an impressionistic in view which is entertained by quite a few lawyers,
judges and legislators without any scientific investigation or empirical
research to support it. It appears to have been assumed by these learned judges
that death penalty has an additional deterrent effect which life sentence does
not possess. In fact, the learned judges were-not concerned in these decisions
to enquire and determine whether death penalty has any special deterrent effect
and therefore if they proceeded on any such assumption, it cannot be said that
by doing so they judicially recognised the deterrent value of death penalty. It
is true that in Jagmohan's case (supra) Palekar J. speaking on behalf of the
court did take the view that death penalty has a uniquely deterrent effect but
I do not think that beyond a mere traditional belief the validity of which
cannot be demonstrated either by logic or by reason, there is any cogent and
valid argument put forward by the learned Judge in support of the view that
death sentence has greater deterrent effect than life sentence. The majority
judges have relied on some of the observations of Krishna Iyer, J. but it must
not be forgotten that Krishna Iyer, J.
has been one of the strongest opponents of
death penalty and he has pleaded with passionate conviction for 'death sentence
on death sentence'. In Dalbir Singh & Ors. v. State of Punjab (supra) he
emphatically rejected the claim of deterrence in most unequivocal terms:
".. the humanity of our Constitution historically viewed (does not)
subscribe to the hysterical assumption or facile illusion that a crime free
society will dawn if hangmen and firing squads were kept feverishly busy."
It would not be right to rely on stray or casual observations of Krishna Iyer,
J. in support of the thesis that death penalty has a uniquely deterrent effect.
It would be doing grave injustice to him and to the ideology for which he
stands. In fact, the entire basis of the judgment of Krishna Iyer, J. in
Rajendra Prasad's is that death penalty has not deterrent value and that is
only where the killer is found to be a social monster or a beast incapable of
reformation that he can be liquidated out of existence. Chinnappa Reddy, J. has
also in Bishnu Deo Shaw's case (supra) taken the view that "there is no
positive indication that the death penalty has been deterrent" or in other
words, "the efficacy of the death penalty as a deterrent is
unproven." Then reliance has been placed by Sarkaria, J. speaking on
behalf of the majority on the observations of Stewart, J.
in Furman v. Georgia (supra) where the
learned Judge took the view that death penalty serves a deterrent as well as
retributive purpose. In his view, certain criminal conduct is so atrocious that
society's interest in deterrence and retribution wholly outweighs any
considerations 335 of reform or rehabilitation of the perpetrator and that,
despite the on conclusive empirical evidence, only penalty of death will
provide maximum deterrence. It has also been pointed out by Sarkaria, J. that
in Gregg v. Georgia (supra) Stewart, J. reiterated the same view in regard to
the deterrent and retributive effect of death penalty. But the view taken by
Stewart, J. cannot be regarded as decisive of the present question as to the
deterrent effect of death penalty. It is just one view like any other and its
validity has to be tested on the touchstone of logic and reason. It cannot be
accepted merely because it is the view of an eminent judge, I find that as
against the view taken by him, there is a contrary view taken by at least two
judges of the United States Supreme Court, namely. Brennan J. and Marshall J.
who were convinced in Gregg v. Georgia (supra) that "capital punishment is
not necessary as a deterrent to crime in our society." It is natural
differing judicial observations supporting one view or the other that these
should be particularly on a sensitive issue like this, but what is necessary is
to examine objectively and critically the logic and rationale behind these
observations and to determine for ourselves which observations represent the
correct view that should find acceptance with us. The majority Judges speaking
through Sarkaria, J. have relied upon the observations of Stewart, J. as also
on the observations made by various other Judges and authors for the purpose of
concluding that when so many eminent persons have expressed the view that
capital punishment is necessary for the protection of society, how can it be
said that it is arbitrary and unreasonable and does not serve any rational
penological purpose. It has been observed by Sarkaria, J:
"It is sufficient to say that the very
fact that persons of reason, learning and light are rationally and deeply
divided in their opinion on this issue, is a ground among others, for rejecting
the petitioners' argument that retention of death penalty in the impugned
provision, is totally devoid of reason and purpose. If, notwithstanding the
view of the Abolitionists to the contrary, a very large segment of people, the
world over, including sociologists legislators, jurists, judges and
administrators still firmly believe in the worth and necessity of capital
punishment for the protection of society......it is not possible to hold that
the provision of death penalty as an alternative punishment for murder is
unreasonable and not in the public interest. I find it difficult to accept this
argument which proceeds upon the hypothesis that merely because some lawyers,
judges and jurists are of the opinion that death penalty 336 sub-serves a penological
goal and is therefore in public interest, the court must shut its eyes in
respectful deference to the views expressed by these scholars and refuse to
examine whether their views are correct or not. It is difficult to understand
how the court, when called upon to determine a vital issue of fact, can
surrender its judgment to the views of a few lawyers, judges and jurists and
hold that because such eminent persons have expressed these views, there must
be some substance in what they say and the provision of death penalty as an
alternative punishment for murder cannot therefore be regarded as arbitrary and
unreasonable. It is to my mind inconceivable that a properly informed judiciary
concerned to uphold Fundamental Rights should decline to come to its own
determination of a factual dispute relevant to the issue whether death penalty
serves a legitimate penological purpose and rest its decision only on the
circumstance that there are sociologists, legislators, judges and jurists who
firmly believe in the worth and necessity of capital punishment. The court must
on the material before it find whether the views expressed by lawyers, judges,
jurists and criminologists on one side or the other are well founded in logic
and reason and accept those which appear to it to be correct and sound. The
Court must always remember that it is charged by the Constitution to act as a
sentinel on the qui vive guarding the fundamental rights guaranteed by the
Constitution and it cannot shirk its responsibility by observing that since
there are strong divergent views on the subject, the court need not express any
categorical opinion one way or the other as to which of these two views is
correct. Hence it is that, in the discharge of my constitutional duty of
protecting and upholding the right to life which is perhaps the most basic of
all human rights, I have examined the rival views and come to the p conclusion,
for reasons which I have already discussed, that death penalty has no uniquely
deterrent effect and does not serve a penological purpose. But even if we
proceed on the hypothesis that the opinion in regard to the deterrent effect of
death penalty is divided and it is not possible to say which opinion is right
and which opinion is wrong, it is obvious that, in this state of affairs, it
cannot be said to be proved that death penalty has an additional deterrent
effect not possessed by life sentence and if that be so, the legislative
provision for imposition of death penalty as alternative punishment for murder
fail, since, as already pointed out above, the burden of showing that death
penalty has a uniquely deterrent effect and therefore serves a penological goal
is on the State and 337 if the State fails to discharge this burden which lies
upon it, death penalty as alternative punishment for murder must be held to be
arbitrary and unreasonable.
The majority Judges have, in the Judgment of
Sarkaria, J. placed considerable reliance on the 35th Report of the Law
Commission and I must therefore briefly refer to that Report before I part with
this point. The Law Commission set out in their Report the following main
points that weighed with them in arriving at the conclusion that capital
punishment does act as a deterrent:
(a) Basically, every human being dreads
death.
(b) Death, as a penalty, stands on a totally
different level from imprisonment for life or any other punishment. The
difference is one of quality, and not merely of degree.
(c) Those who are specifically qualified to
express an opinion on the subject, including particularly the majority of the
replies received from State Governments, Judges, Members of Parliament and
legislatures and Members of the Bar and police officers-are definitely of the
view that the deterrent object of capital punishment is achieved in a fair measure
in India.
(d) As to conduct of prisoners released from
jail (after undergoing imprisonment for life), it would be difficult lo come to
a conclusion, without studies extending over a long period of years.
(e) Whether any other punishment can possess
all the advantages of capital punishment is a matter of doubt.
(f) Statistics of other countries are
inconclusive on the subject. If they are not regarded as proving the deterrent
effect, neither can they be regarded as conclusively disproving it.
So far as the first argument set out in
clause (a) is concerned, I have already shown that the circumstance that every
human being dreads 338 deaths cannot lead to the inference that death penalty
act as a deterrent. The statement made in clause (b) is perfectly correct and I
agree with the Law Commission that death as a penalty stands on a totally
different level from life imprisonment and the difference between them is one
of quality and not merely of degree, but I fail to see how from this
circumstance an inference can necessarily follow that death penalty has a
uniquely deterrent effect. Clause (c) sets out that those who are specially
qualified to express an opinion on the subject have in their replies to the
questionnaire stated their definite view that the deterrent effect of capital
punishment is achieved in a fair measure in India. It may be that a large
number of persons who sent replies to the questionnaire issued by the Law
Commission might have expressed the view that death penalty does act as a deterrent
in our country, but mere expression of opinion in reply to the questionnaire,
unsupported by reasons, cannot have any evidentiary value. There are quite a
number of people in this country who still nurture the superstitions and
irrational belief, ingrained in their minds by a century old practice of
imposition of capital punishment and fostered, though not consciously, by the
instinct for retribution, that death penalty alone can act as an effective
deterrent against the crime of murder. I have already demonstrated how this
belief entertained by lawyers, judges, legislators and police officers is a
myth and it has no basis in logic or reason. In fact, the statistical research
to which I have referred completely falsifies this belief. Then, there are the
arguments in clauses (d) and (e) but these arguments even according to the Law
Commission itself are inconclusive and it is difficult to see how they can be
relied upon to support the thesis that capital punishment acts as a deterrent.
The Law Commission states in clause (f) that statistics of other countries are
inconclusive on the subject. I do not agree. I have already dealt with this
argument and shown that the statistical studies carried out by various jurists
and criminologists clearly disclose That there is no evidence at all to suggest
that death penalty acts as a deterrent and it must therefore be held on the
basis of the available material that death penalty does not act as a deterrent.
But even if we accept the proposition that the statistical studies are
inconclusive and they cannot be regarded as proving that death penalty has no
deterrent effect, it is clear that at the same time they also do not establish
that death penalty has a uniquely deterrent effect and in this situation, the
burden of establishing that death penalty has an additional deterrent effect
which life sentence does not have and therefore serves a penological purpose
339 being on the State, it must held that the State has failed to discharge the
burden which rests upon it and death penalty must therefore be held to be
arbitrary and unreasonable.
There was also one other argument put forward
by the Law Commission in its 35th Report and that argument was that having
regard to the conditions in India to the variety of social up-bringing of its
inhabitants, to the disparity in the level of morality and education in the
country, to the vastness of its area, to the diversity of its population and to
the paramount Deed to maintain law and order in the country at the present
juncture, India cannot risk the experiment of abolition of capital punishment.
This argument does not commend itself to me as it is based more on fear
psychosis than on reason. It is difficult to see how any of the factors
referred to by the Law Commission, barring the factor relating to the need to
maintain law and order, can have any relevance to the question of deterrent
effect of capital punishment. I cannot subscribe to the opinion that, because
the social upbringing of the people varies from place to place or from class to
class or there are demographic diversities and variations, they tend to
increase the incidence of homicide and even if they do, I fail to see how death
penalty can counter act the effect of these factors. It is true that the level
of education in our country is low, because our developmental process started
only after we became politically free, but it would be grossly unjust to say
that uneducated people are more prone to crime than the educated ones. I also
cannot agree that the level of morality which prevails amongst our people is
low. I firmly hold the view that the large bulk of the people in our country,
barring only a few who occupy positions of political, administrative or
economic power, are actuated by a high sense of moral and ethical values. In
fact, if we compare the rate of homicide in India with that in the United
States, where there is greater homogeneity in population and the level of
education is fairly high, we find that India compares very favourably with the
United States. The rate of homicide for the year 1952 was 4.7 in the United
States as against the rate of only 2.9 in India per 1,00,000 population and the
figures for the year 1960 show that the rate of homicide in the United States
was 5.1 as against the rate of only 2.5 in India per 1,00,000 population. The
comparative figures for the year 1967 also confirm that the rate of homicide
per 1,00,000 population in the United States was definitely higher than that in
India because in the United States it was 6.1 340 while in India it was only
2.6. It is therefore obvious that, despite the existence of the factors
referred to by the Law Commission, the conditions in India, in so far as the
rate of homicide is concerned, are definitely better than in the United States
and I do not see how these factors can possibly justify an apprehension that it
may be risky to abolish capital punishment. There is in fact statistical
evidence to show that the attenuation of the area in which death penalty may be
imposed and the remoteness and infrequency of abolition of death penalty have
not resulted in increase in the rate of homicide. The figures which were placed
before us on behalf of the Union clearly show that there was no increase in the
rate of homicide even though death sentence was made awardable only in
exceptional cases under section 354 sub-section (3) of the new Code of Criminal
Procedure 1973. I must therefore express my respectful dissent from the view
taken by the Law Commission that the experiment of abolition of capital punishment,
would involve a certain element of risk to the law and order situation.
It will thus be seen that death penalty as
provided under section 302 of the Indian Penal Code read with section 354
sub-section (3) of the Code of Criminal Procedure, 1973 does not subserve any
legitimate end of punishment, since by killing the murderer it totally rejects
the reformative purpose and it has no additional deterrent effect which life
sentence does not possess and it is therefore not justified by the deterrence
theory of punishment. Though retribution or denunciation is regarded by some as
a proper end of punishment. I do not think, for reasons I have already
discussed, that it can have any legitimate place in an enlightened philosophy
of punishment. It must therefore be held that death penalty has no rational
nexus with any legitimate penological goal or any rational penological purpose
and it is arbitrary and irrational and hence violative of Articles 14 and 21 of
the Constitution.
I must now turn to consider the attack
against the constitutional validity of death penalty provided under section 302
of the Indian Penal Code read with section 354 sub-section (3) of the Code of
Criminal Procedure, 1973 on the ground that these sections confer an unguided
and standardless discretion on the court whether to liquidate an accused out of
existence or to let him continue to live and the vesting of such discretion in
the court renders the death penalty arbitrary and freakish. This ground of
challenge is in my opinion well founded and it furnishes one additional reason
341 why the death penalty must be struck down as violative of Articles a 14 and
21. It is obvious on a plain reading of section 302 of the Indian Penal Code
which provides death penalty as alternative punishment for murder that it
leaves it entirely to the discretion of Court whether to impose death sentence
or to award only life imprisonment to an accused convicted of the offence of
murder. This section does not lay down any standards or principles to guide the
discretion of the Court in the matter of imposition of death penalty. The
critical choice between physical liquidation and lifelong incarceration is left
to the discretion of the court and no legislative light is shed as to how this
deadly discretion is to be exercised. The court is left free to navigate in an
uncharted sea without any com- pass or directional guidance. The respondents
sought to find some guidance in section 354 sub-section (3) of the Code of
Criminal Procedure 1973 but I fail to see how that section can be of any help
at all in providing guidance in the exercise of discretion. On the contrary it
makes the exercise of discretion more difficult and uncertain. Section 354
sub-section (3) provides that in case of offence of murder, life sentence shall
be the rule and it is only in exceptional cases for special reasons that death
penalty may be awarded. But what are the special reasons for which the court
may award death penalty is a matter on which section 354 sub-section (3) is
silent nor is any guidance in that behalf provided by any other provision of
law. It is left to the Judge to grope in the dark for himself and in the
exercise of his unguided and unfettered discretion decide what reasons may be
considered as 'special reasons' justifying award of death penalty and whether
in a given case any such special reasons exist which should persuade the court
to depart from the normal rule and inflict death penalty on the accused. There
being no legislative policy or principle to guide the court in exercising its
discretion in this delicate and sensitive area of life and death, the exercise
of discretion of the Court is bound to vary from judge to judge. What may
appear as special reasons to one judge may not so appear to another and the
decision in a given case whether to impose the death sentence or to let off the
offender only with life imprisonment would, to a large extent, depend upon who
is the judge called upon to make the decision. The reason for this uncertainty
in the sentencing process is two-fold. Firstly, the nature of the sentencing
process is such that it involves a highly delicate task calling for skills and
talents very much different from those ordinarily expected of lawyers. This was
pointed out clearly 342 and emphatically by Mr. Justice Frankfurter in the
course of the evidence he gave before the Royal Commission on Capital
Punishment:
"I myself think that the bench-we
lawyers who become Judges-are not very competent, are not qualified by
experience, to impose sentence where any discretion is to be exercised. I do
not think it is in the domain of the training of lawyers to know what to do
with a fellow after you find out he is a thief. I do not think legal training
has given you any special competence. I, myself, hope that one of these days,
and before long, we will divide the functions of criminal justice. I think the
lawyers are people who are competent to ascertain whether or not a crime has
been committed.
The whole scheme of common law judicial
machinery-the rule of evidence, the ascertainment of what is relevant and what
is irrelevant and what is fair, the whole question of whether you can introduce
prior crimes in order to prove intent-I think lawyers are peculiarly fitted for
that task. But all the questions that follow upon ascertainment of guilt, I-
think require very different and much more diversified talents than the lawyers
and judges are normally likely to possess." Even if considerations
relevant to capital sentencing were provided by the legislature, it would be a
difficult exercise for the judges to decide whether to impose the death penalty
or to award the life sentence. But without any such guidelines given By the
legislature, the task of the judges becomes much more arbitrary and the
sentencing decision is bound to vary with each judge. Secondly, when unguided
discretion is conferred upon the Court to choose between life and death, by
providing a totally vague and indefinite criterion of 'special reasons' without
laying down any principles or guidelines for determining what should be
considered To be 'special reasons', the choice is bound to be influenced by the
subjective philosophy of the judge called upon to pass the sentence and on his
value system and social philosophy will depend whether the accused shall live or
die. No doubt the judge will have to give 'special reasons' if he opts in
favour of inflicting the death penalty, H-but that does not eliminate
arbitrariness and caprice, firstly because there being no guidelines provided
by the legislature, the reasons 343 which may appeal to one judge as 'special
reasons' may not appeal to another, and secondly, because reasons can always be
found for a conclusion that the judge instinctively wishes to reach and the
judge can bonafide and conscientiously find such reason to be 'special
reasons'. It is now recognised on all hands that judicial conscience is not a
fixed conscience; it varies from judge to judge depending upon his attitudes
and approaches, his predilections- and prejudices, his habits of mind and
thought and in short all that goes with the expression "social
philosophy". We lawyers and judges like to cling to the myth that every
decision which we make in the exercise of our judicial discretion is guided
exclusively by legal principles and we refuse to admit the subjective element
in judicial decision making. But that myth now stands exploded and it is
acknowledged by jurists that the social philosophy of the judge plays a not
inconsiderable part in moulding his judicial decision and particularly the
exercise of judicial discretion. There is nothing like complete objectivity in
the decision making process and especially so, when this process involves
making of decision in the exercise of judicial discretion. Every judgment
necessarily bears the impact of the attitude and approach of the judge and his
social value system. It would be pertinent here to quote Justice Cardozo's
analysis of the mind of a Judge in his famous lectures on "Nature of
Judicial Process":
"We are reminded by William James in a
telling page of his lectures on Pragmatism that every one of us has in truth an
underlying philosophy of life, even those of us to whom the names and the
notions of philosophy are unknown or anathema. There is in each of us a stream
of y tendency, whether you choose to call it philosophy or not, which gives
coherence and direction to thought and ' t action. Judges cannot escape that
current any more than other mortals. All their lives, forces which they do not
recognize and cannot name, have been tugging at them- inherited instincts,
traditional beliefs, acquired convictions; - and the resultant is an outlook on
life, a conception of ' social needs, a sense in Jame's phrase of 'the total
push and pressure of the cosmos,' which when reasons are nicely balanced, must
determine where choice shall fall. In this mental background every problem
finds its setting. We l may try to see things as objectively as we please. None
the less, we can never see them with any eyes except our own." It may be
noted that the human mind, even at infancy, is no blank sheet of paper. We are
born with predisposition and the process of education, formal and informal,
and, our own subjective experiences create attitudes which affect us in judging
situations and coming to decisions. Jerome Frank says in his book; "Law
and the Modern Mind", in an observation with which I find myself in entire
agreement:
"Without acquired 'slants'
preconceptions, life could not go on. Every habit constitutes a pre- judgment;
were those pre-judgments which we call habits absent in any person, were he
obliged to treat every event as an unprecedented crisis presenting a wholly new
problem, he would go mad. Interests, points of view, preferences, are the
essence of living. Only death yields complete dispassionateness, for such
dispassionateness signifies utter indifference.. An 'open mind' in the sense of
a mind containing no pre- conceptions whatever, would be a mind incapable of
learning anything, would be that of an utterly emotion- less human being."
It must be remembered that "a Judge does not shed the attributes of common
humanity when he assumes the ermine." The ordinary human mind is a mass of
pre-conceptions inherited and acquired, often unrecognised by their possessor.
"Few minds are as neutral as a sheet of plain glass and indeed a mind of
that quality may actually fail in judicial- efficiency, for the warmer tints of
imagination and sympathy are needed to temper the cold light of reason, if
human justice is to be done." It is, therefore, obvious that when a Judge
is called upon to exercise his discretion as to whether the accused shall be
killed or shall be permitted to live, his conclusion would depend to a large
extent on his approach and attitude, his predilections and pre-conceptions, his
value system and social philosophy and his response to the evolving norms of
decency and newly developing concepts and ideas in penological jurisprudence.
One Judge may have faith in the Upanishad
doctrine that every human being is an embodiment of the Divine and he may believe
with Mahatma Gandhi that every offender can be reclaimed 345 and transformed by
love and it is immoral and unethical to kill him, while another Judge may
believe that it is necessary for social defence that the offender should be put
out of way and that no mercy should be shown to him who did not show mercy to
another. One Judge may feel that the Naxalites, though guilty of murders, . are
dedicated souls totally different from ordinary criminals as they are motivated
not by any self-interest but by a burning desire to bring about a revolution by
eliminating vested interests and should not therefore be put out of corporeal
existence while another Judge may take the view that the Naxalities being
guilty of cold premeditated murders are a menace to the society and to innocent
men and women and therefore deserve to be liquidated. The views of Judges as to
what may be regarded as 'special reasons' are bound to differ from Judge to
Judge depending upon his value system and social philosophy with the result that
whether a person shall live or die depends very much upon the composition of
the bench.
which tries his case and this renders the
imposition of death penalty arbitrary and capricious.
Now this conclusion reached by me is not
based merely on theoretical or a priori considerations. On an analysis of
decisions given over a period of years we find that in fact there is no uniform
pattern of judicial behaviour in the imposition of death penalty and the
judicial practice does not disclose any coherent guidelines for ' the award of
capital punishment. The Judges have been awarding death penalty or refusing to
award it according to their own scale of values and social philosophy and it is
not possible to discern any consistent approach to the problem in the judicial
decisions. It is p apparent from a study of the judicial decisions that some
Judges are readily and regularly inclined to sustain death sentences, other are
.
similarly disinclined and the remaining waver
from case to case. Even in the Supreme Court there are divergent attitudes and
opinions in regard to the imposition of capital punishment. If a case comes
before one Bench consisting of Judges who believe in the social efficacy of
capital punishment, the death sentence would in all probability be confirmed
but if the same case comes before another Bench consisting of Judges who are
morally and ethically against the death penalty, the death sentence would most
likely be commuted to life imprisonment. The former would find and I say this
not in any derogatory or disparaging sense, but as a consequence of
psychological and attitudinal factors operating on the 346 minds of the Judges
constituting the Bench-'special reasons' in the case to justify award of death
penalty while the latter would reject any such reasons as special reasons. It
is also quite possible that one Bench may, having regard to its perceptions,
think that there are special reasons in the case for which death penalty should
be awarded while another Bench may bonafide and conscientiously take a
different view and hold that there are no special reasons and that only life
sentence should be imposed and it may not be possible to assert objectively and
logically as to who is right and who is wrong, because the exercise of
discretion in a case of this kind, where no broad standards or guidelines are
supplied by the legislature, is bound to be influenced by the subjective
attitude and approach of the Judges constituting the Bench, their value system,
individual tone of their mind, the colour of their experience and the character
and variety of their interests and their predispositions. This arbitrariness in
the imposition of death penalty is considerably accentuated by the fragmented
bench structure of our Courts where benches are inevitably formed with
different permutations and combinations from time to time and cases relating to
the offence of murder come up for hearing sometimes before one Bench, sometimes
before another sometimes before a third and so on. Prof. Blackshield has in his
Article on 'Capital Punishment in India' published in Volume 21 of the Journal
of the Indian Law Institute pointed out how the practice of bench formation
contributes to arbitrariness in the imposition of death penalty. It is
well-known that so far as the Supreme Court is concerned, while the number of
Judges has increased over the years, the number of Judges on Benches which hear
capital punishment cases has actually decreased. Most cases are now heard by
two judge Benches. Prof. Blackshield has abstracted 70 cases in which the
Supreme Court had to choose between life and death while sentencing an accused
for the offence of murder and analysing these 70 cases he has pointed out that
during the period 28th April 1972 to 8th March 1976 only eleven Judges of the
Supreme Court participated in 10% or more of the cases. He has listed these
eleven Judges in an ascending order of leniency based on the proportion for
each Judge of plus votes (i.e. votes for the death sentence) to total votes and
pointed out that these statistics show how the judicial response to the
question of life and death varies for judge to judge." It is significant
to note that out of 70 cases analysed by Prof.
Blackshield, 37 related to the period
subsequent to the coming into force of section 354 sub-section (3) of the Code
of Criminal Procedure 1973. If a similar 347 exercise is performed with
reference to cases decided by the Supreme A Court after 8th March 1976, that
being the date upto which the survey carried out by Prof. Blackshield was
limited, the analysis will x reveal the same pattern of incoherence and
arbitrariness, the decision to kill or not to kill being guided to a large
extent by the com position of the Bench. Take for example Rajendra Prasad's
case (supra) decided on 9th February 1979. In this case, the death sentence
imposed on Rajendra Prasad was commuted to life imprisonment by a majority
consisting of Krishna Iyer, J. and Desai, J.A.P. Sen, J. dissented and was of
the view that the death sentence should be confirmed. Similarly in one of the
cases before us, namely, Bachan Singh v. State of Punjab,(l) when it was first
heard by a Bench consisting of Kailasam and Sarkaria, JJ., Kailasam, J. was
definitely of the view that the majority decision in . Rajendra Prasad's case
was wrong and that is why 'he referred that case to the Constitution Bench. So
also in Dalbir Singh v. State of Punjab (supra), the majority consisting of
Krishna Iyer, J.
and Desai, J. took the view that the death
sentence imposed on Dalbir Singh should be commuted to life imprisonment while
A.P. Sen, J. struck to the original view taken by him in Rajendra Prasad's case
and was inclined to confirm the death sentence. It will thus be seen that the
exercise of discretion whether to inflict death penalty or not depends to a
considerable extent on the value system and social philosophy of the Judges
constituting the Bench.
The most striking example of freakishness in
imposition of death penalty is provided by a recent case which involved three
accused, namely, Jeeta Singh, Kashmira Singh and Harbans Singh. These three
persons were sentenced to death by the Allahabad High Court by a judgment and
order dated 20th October 1975 for playing an equal part in jointly murdering a
family of four persons. Each of these three persons preferred a separate
petition in the Supreme Court for special leave to appeal against the common
judgment sentencing them all to death penalty. The special leave petition of
Jeeta Singh came up for hearing before a bench consisting of Chandrachud, J. (as
he then was) Krishna Iyer, J. and N.L. Untwalia, J. and it was dismissed on
15th April 1976. Then came the special leave petition preferred by Kashmira
Singh from jail and this petition was placed for hearing before another bench
consisting of Fazal Ali, J. and myself. We granted leave to Kashmira Singh
limited to 348 the question of sentence and by an order dated 10th April 1977
we allowed his appeal and commuted his sentence of death into one of
imprisonment for life. The result was that while Kashmira Singh's death
sentence was commuted to life imprisonment by one Bench, - the death sentence
imposed on Jeeta Singh was confirmed by another bench and he was executed on
6th October 1981, though both had played equal part in the murder of the family
and there was nothing to distinguish the case of one from that of the other.
The special leave petition of Harbans Singh then came up for hearing and this
time, it was still another bench which heard his special leave petition. The
Bench consisted of Sarkaria and Singhal, JJ. and they rejected the special
leave petition of Harbans Singh on 1 6th October, 1978.
Harbans Singh applied for review of this
decision, but the review petition was dismissed by Sarkaria, J. and A.P. Sen,
J. On 9th May 1980. It appears that though the registry of this court had
mentioned in its office report that Kashmira Singh's death sentence was already
commuted, that fact was not brought to the notice of the court specifically
when the special leave petition of Harbans Singh and his review petition were
dismissed. Now since his special leave petition as also his review petition
were dismissed by this Court, Harbans Singh would have been executed on 6th
October 1981 along with Jeeta Singh, but fortunately for him he filed a writ
petition in this Court and on that writ petition, the court passed an order
staying the execution of his death sentence. When this writ petition came up
for hearing before a still another bench consisting of Chandrachud, C.J., D.A.
Desai and AN. Sen. JJ., it was pointed out to the court that the death sentence
imposed on Kashmira Singh had been commuted by a bench consisting of Fazal Ali,
J. and myself and when this fact was pointed out, the Bench directed that the
case be sent back to the President for reconsideration of the clemency petition
filed by Harbans Singh. This is a classic case which illustrates the judicial
vagaries in the imposition Of death penalty and demonstrates vividly, in all
its cruel and stark reality, how the infliction of death penalty is influenced
by the composition of the bench, even in cases governed by section 354
sub-section (3) of the Code of Criminal Procedure 1973.
The question may well be asked by the
accused: Am I to live or die depending upon the way in which the Benches are
constituted from time to time ? Is that not clearly violative of the
fundamental guarantees enshrined in Articles 14 and 21 ? 349 If we study the
judicial decisions given by the courts over a number of years, we find Judges
resorting to a wide variety of factors in justification of confirmation or
commutation of death sentence and these factors when analysed fail to reveal
any coherent pattern. This is the inevitable consequence of the failure of the
legislature to supply broad standards or guidelines which would structure and
channelise the discretion of the court in the matter of imposition of death
penalty. Of course, I may make it clear that when I say this I do not wish to
suggest that if broad standards or guidelines are supplied by the legislature,
they would necessarily cure death penalty of the vice of arbitrariness or
freakishness. Mr. Justice Harlan pointed out in Mc Gautha v. California(l) the
difficulty of formulating standards or guidelines for channelising or
regulating the discretion of the court in these words ":
"Those who have come to grips with the
hard task of actually attempting to draft means of channeling capital
sentencing discretion have confirmed the lesson taught by history...To identify
before the fact those characteristics of criminal homicides and their
perpetrators which call for the death penalty, and to express these
characteristics in language which can be fairly understood and applied by the
sentencing authority, appear to be tasks which are beyond present human
ability." But whether adequate standards or guidelines can be formulated
or not which would cure the aspects of arbitrariness and capriciousness, the
fact remains that no such standards or guidelines are provided by the
legislature in the present case, with the result that the court has unguided
and untrammelled discretion in choosing between death and life imprisonment as
penalty for the crime of murder and this has led to considerable arbitrariness
and uncertainty. This is evident from a study of the decided cases which clearly
shows that the reasons for confirmation or commutation of death sentence relied
upon by the court in different cases defy coherent analysis. Dr. Raizada has,
in his monumental doctoral study entitled "Trends in sentencing; a study
of the important penal statutes and judicial pronouncements of the High Courts
and the Supreme Court" identified a large number of decisions of this
Court where inconsis- 350 tent awards of punishment have been made and the
judges have frequently articulated their inability to prescribe or follow
consistently any standards or guidelines. He has classified cases up to 1976 in
terms of the reasons given by the court for awarding or refusing to award death
sentence.
The analysis made by him is quite rewarding
and illuminating.
(i) one of the reasons given by the courts in
a number of cases for imposing death penalty is that the murder is
"brutal", "cold blooded", "deliberate",
"unprovoked", "fatal", "gruesome", "wicked",
"callous", "heinous" or "violent". But the use of
these labels for describing the nature of the murder is indicative only of the
degree of the court's aversion for the nature or the manner of commission of
the crime and it is possible that different judges may react differently to
these situations and moreover, some judges may not regard this factor as having
any relevance to the imposition of death penalty and may therefore decline to
accord to it the status of "special reasons". In fact, there are
numerous cases, where despite the murder being one falling within these
categories, the court has refused to award death sentence. For example,
Janardharan whose appeal was decided along with the appeal of Rajendra Prasad
had killed his innocent wife and children in the secrecy of night and the
murder was deliberate and cold blooded, attended as it was with considerable
brutality, and yet the majority consisting of Krishna Iyer, J. and D.A. Desai,
J.
commuted his death sentence to life
imprisonment.
So also Dube had committed triple murder and
still his death sentence was commuted to life imprisonment by the same two
learned Judges, namely, Krishna Iyer, J. and D.A. Desai, J. It is therefore
clear that the epithets mentioned above do not indicate any clearcut well
defined categories but are merely expressive of the intensity of judicial
reaction to the murder, which may not be uniform in all Judges and even if the
murder falls within one of these categories, that factor has been regarded by
some judges as relevant and by others, as irrelevant and it has not been
uniformly applied as a salient factor in determining whether or not death
penalty should be imposed.
351 (ii) There have been cases where death
sentence has been A . . awarded on the basis of constructive or joint liability
arising under sections 34 and 149.
Vide: Babu v. State of U.P.,(1) Mukhtiar
Singh v. State of Punjab,(2) Masalt v. State of U.P.,(3) Gurcharan Singh v.
State - of Punjab.(4) But, there are equally a large number of cases whether
death sentence has not been awarded because the criminal liability of the
accused was only . under section 34 or Section 149. There are no established
criteria for awarding or refusing to award death sentence to an accused who
himself did not give the fatal blow but was involved in the commission of -
murder along with other assailants under section 34 or section 149.
(iii)The position as regards mitigating
factors also shows the same incoherence. One mitigating factor which -, has
often been relied upon for the purpose of com- muting the death sentence to
life imprisonment is the youth of the offender. But this too has been quite
arbitrarily applied by the Supreme Court. There are . cases such as State of
U.P. v. Suman Das,(5) Raghubir Singh v. State of Haryana(6) and Gurudas Singh
v. State of Rajasthan(7) where the Supreme Court took into account the young
age of the appellant and refused to award death sentence to him. Equally there
are - cases such as Bhagwan Swarup v. State of U.P.(') and Raghomani v. State
of U.P.(9) where the Supreme Court took the view that youth is no ground for
extenuation of sentence. Moreover there is also divergence of opinion as to
what should be the age at which an offender may be regarded as a young man
deserving i of commutation. The result is that as pointed out 352 by Dr.
Raizada, in some situations young offenders who have committed multiple murders
get reduction in life sentence whereas in others, "where neither the loss
of as many human lives nor of higher valued properly" is involved, the
accused are awarded death sentence.
(iv) one other mitigating factor which is
often taken into account is delay in final sentencing. This factor of delay
after sentence received great emphasis in Ediga Annamma v. State of Andhra
Pradesh,(1) Chawla v. State of Haryana,(2) Raghubir Singh v. State of Haryana
(supra) Bhur Singh v. State of Punjab,(3) State of Punjab v Hari Singh(4) and
Gurudas Singh v. State of Rajasthan(5) and in these cases delay was taken into
account for the purpose of awarding the lesser punishment of life imprisonment.
In fact, in Raghubir Singh v. State of Haryana (supra) the fact that for 20
months the spectre of death penalty must have been tormenting his soul was held
sufficient to entitle the accused to reduction in sentence. But equally there
are a large number of cases where death sentences have been confirmed, even
when two or more years were taken in finally disposing of the appeal; Vide:
Rishdeo v. State of U.P.,(6) Bharmal Mapa v. State of Bombay(7) and other cases
given by Dr. Raizada in foot-note 186 to chapter III. These decided cases show
that there is no way of predicting. the exact period of prolonged proceeding
which may favour an accused. Whether any importance should be given to the
factor of delay and if so to what extent are matters entirely within the discretion
of the court and it is not possible to assert with any definitiveness that a
particular period of delay after sentencing will earn for the accused immunity
353 from death penalty. It follows as a necessary corrolary from these vagaries
in sentencing arising from the factor of delay, that the imposition of capital
punishment becomes more or less a kind of cruel judicial lottery. If the case
of the accused is handled expeditiously by the prosecution, defence lawyer,
sessions court, High Court and the Supreme Court, then this mitigating factor
of delay is not available to him for reduction to life sentence. If, on the
other hand, there has been lack of dispatch, engineered or natural, then the
accused may escape the gallows, subject of course to the judicial vagaries
arising from other causes. In other words, the more efficient the proceeding,
the more certain the death sentence and vice-versa.
(v) The embroilment of the accused in an
immoral relationship has been condoned and in effect, treated as an extenuating
factor in Raghubir Singh v. State of Haryana (supra) and Basant Laxman More v.
State of Maharashtra(l) while in Lajar Masih v. State of U.P.,(2) it has been
condemed and in effect treated as an aggravating factor. There is thus no
uniformity l - of approach even so far as this factor is concerned.
All these facors singly and cumulatively
indicate not merely that there is an enormous potential of arbitrary award of .
Death penalty by the High Courts and the Supreme Court but that, .; in fact,
death sentences have been awarded arbitrarily and freakishly. Vide: Dr. Upendra
Baxi's note on "Arbitrariness of Judicial Imposition of Capital
Punishment.
Professor Blackshield has also in his article
on "Capital Punishment in India" commented on the arbitrary and
capricious nature of imposition of death penalty and demonstrated forcibly and
almost conclusively, that arbitrariness and uneven incidence are inherent and
inevitable in a system of capital punishment. He has taken the decision of this
Court in Ediga Anamma v. State of Andhra Pradesh (supra) as the dividing line
and examined the judicial decisions given by this Court subsequent to the
decision in Ediga Anamma's case, where this Court had to choose between life
and death under section 302 of the Indian Renal Code. The cases sub sequent to
the decision in Ediga Anamma's case have been chosen for study and analysis
presumbly because that was the decision in which the court for the first time
set down some working formula whereby a synthesis could be reached between
death sentence and life imprisonment and Krishna Iyer, J. speaking on behalf of
the court, formulated various grounds which in his opinion, might warrant death
sentence as an exceptional measure. But, despite this attempt made in Ediga
Anamma's case to evolve some broad standards or guidelines for imposition of
death penalty, the subsequent decisions, as pointed out by Professor
Blackshield, display the same pattern of confusion, contradictions and
aberrations as the decisions before that case. The learned author has taken 45
reported decisions given after Ediga Anamma's case and shown that it is not
possible to discern any coherent pattern in these decisions and they reveal con
tradictions and inconsistencies in the matter of imposition of death penalty.
This is how the learned author has summed up his conclusion after an
examination of these judicial decisions:
"But where life and death are at stake,
inconsistencies which are understandable may not be acceptable. The hard
evidence of the accompanying "kit of cases" compels the conclusion
that, at least in contemporary India, Mr. Justice Douglas' argument in Furman
v. Georgia is correct: that arbitrariness and uneven incidence are inherent and
inevitable in a system of capital punishment and that therefore-in Indian
constitutional terms, and in spite of Jagmohan Singh- the retention of such a
system necessarily violates Article 14's guarantee of "equality before the
law".
It is clear from a study of the decisions of
the higher courts on the life-or-death choice that judicial adhocism or
judicial impressionism dominates the sentencing exercise and the infliction of
death penalty suffers from the vice of arbitrariness and caprice.
I may point out that Krishna Iyer, J. has
also come to the same conclusion on the basis of his long experience of the
sentencing process. He has analysed the different factors which have prevailed
with the Judges from time to time in awarding or refusing 355 to award death
penalty and shown how some factors have weighed A with one Judge, some with
another, some with a third and so on, resulting in chaotic arbitrariness in the
imposition of death penalty. I can do no better than quote his own words in
Rajendra Prasad's case (supra):
"Law must be honest to itself. Is it not
true that some judges count the number of fatal wounds, some the nature of the
weapon used, others count the corpses or the degree of horror and yet others
look into the age or sex of the offendar and even the lapse of time between the
trial Court's award of death sentence and the final disposal? of the appeal ?
With some judges, motives, provocations, primary or constructive guilt, mental
disturbance and old feuds, the savagery of the murderous moment or the plan
which has preceded the killing; the social milieu, the sublimated class complex
and other odd factors enter the sentencing calculus. Stranger still, a good
sentence of death by the trial Court is sometimes upset by the Supreme Court -
I; because of law's delays. Courts have been directed execution of murderers
who are mental cases, who do not fall within the Mc Naghten rules, because of
the insane fury - of the slaughter. A big margin of subjectivism, a preference
for old English precedents, theories of modern penology, behavioral emphasis or
social antecedents, judicial hubris or human rights perspectives,
criminological literacy or fanatical reverence for outworn social philosophers
burried in the debris of time except as part of history-this h plurality of
forces plays a part in swinging the pendulum of sentencing justice
erratically." This passage from the judgment of the learned Judge exposes,
in language remarkable for its succinctness as well as eloquence, the vagarious
nature of the imposition of death penalty and highlights a few of the causes
responsible for its erratic operation. I find myself totally in agreement with
these observations of the learned - Judge.
But when it was contended that sentencing
discretion is inherent in our legal system, and, in fact, it is desirable,
because no two cases or criminals are identical and if no discretion is left to
the 356 court and sentencing is to be done according to a rigid predetermined
formula leaving no room for judicial discretion, the sentencing process would
cease to be judicial and would de-generate into a bed of procrustean cruelty.
The argument was that having regard to the nature of the sentencing process, it
is impossible to lay down any standards or guidelines which will provide for
the endless and often unforeseeable variations in fact situations and
sentencing discretion his necessarily to be left to the court and the vesting
of such discretion in the court, even if no standards or guidelines are
provided by the legislature for structuring or challenging such discretion,
cannot be regarded as arbitrary or unreasonable. This argument, plausible
though it may seem, is in my opinion not well a founded and must be rejected.
It is true that criminal cases do not fall into set behaviouristic patterns and
it is almost impossible to find two cases which are exactly identical. There
are, as pointed out by Sarkaria, J.
in the majority judgment, "countless
permutations and combinations which are beyond the anticipatory capacity of the
human calculus". Each case presents its own distinctive features, its
peculiar combinations of events and its unique configuration of facts. That is
why, in the interest of individualised justice, it is necessary to vest
sentencing discretion in the court so that appropriate sentence may be imposed
by the court in the exercise of its judicial discretion, having regard to the
peculiar facts and circumstances of a given case, or else the. sentencing
process would cease to be just and rational and justice would be sacrificed at
the altar of blind uniformity. But at the same time, the sentencing discretion
conferred upon the court cannot be altogether uncontrolled or unfettered. The
strategem which is therefore followed by the legislatures while creating and
defining offences is to prescribe the maximum punishment and in some cases,
even the minimum and leave it to the discretion of the court to decide upon the
actual term of imprisonment. This cannot be regarded as arbitrary or
unreasonable since the discretion that is left to the court is to choose an
appropriate term of punishment between the limits laid down by the legislature,
having regard to the distinctive features and the peculiar facts and
circumstances of the case. The conferment of such sentencing discretion is
plainly and indubitably essential for rendering individualised justice. But
where the discretion granted to the court is to choose between life and death
without any standards or guidelines provided by the legislature, the death
penalty does become arbitrary and unreasonable. The death penalty is 357 qualitatively
different from a sentence of imprisonment.
Whether Ia sentence of imprisonment is for
two years or five years or for life, it is qualitatively the same, namely, a
sentence of imprisonment, but the death penalty is totally different. It is irreversible;
it is beyond recall or reparation; it extinguishes life. It is the choice
between - life and death which the court is required to make and this is left
to its sole discretion unaided and unguided by any legislative yardstick to
determine the choice. The only yardstick which may be said to have been
provided by the legislature is that life sentence shall be the rule and it is
only in exceptional cases for special reasons that death penalty may be
awarded. but it is nowhere indicated by legislature as to what should be
regarded as f 'special reasons' justifying imposition of death penalty. The
awesome and fearful discretion whether to kill a man or to let him live is
vested in the court and the court is called upon to exercise . this discretion
guided only by its own perception of what may be regarded as 'special reasons'
without any light shed by the legislature. It is difficult to appreciate how a
law which confers such unguided discretion on the court without any standards
or guidelines on so vital an issue as the choice between life and death can be
regarded as constitutionally valid. If I may quote the words of Harlan, J.:
"our scheme of ordered liberty is based,
like the common law, on enlightened and uniformly applied legal principles, not
on ad hoc notions of what is right or wrong in a particular case" There
must be standards or principles to guide the court in making the choice between
life and death and it cannot be left to the court to decide upon the choice on
an ad hoc notion of what it conceives to be "special reasons' in a
particular case. That is exactly what we mean when we say that the government
should be of laws and not y of men and it makes any difference in the
application of this princi- ple, whether 'men' belong to the administration or
to the judiciary. It is a basic requirement of the equality clause contained in
Article 14 that the exercise of discretion must always be guided by standards
or norms so that it does not degenerate into arbitrariness and operate
unequally on persons similarly situate. Where unguided and unfettered
discretion is conferred on any authority, whether it be the executive or the
judiciary, it can be exercised arbitrarily or 358 capriciously by such
authority, because there would be no standards k or principles provided by the
legislature with reference to which the exercise of the discretion can be
tested. Every form of arbitrariness, whether it be executive waywardness or
judicial adhocism is anathema in our constitutional scheme. There can be no
equal protection without equal principles in exercise of discretion.
Therefore. the equality clause of the
Constitution obligate that whenever death sentence is imposed it must be a
principled sentence, a sentence based on some standard or principle and not
arbitrary or indignant capital punishment It has been said that 'a Judge
untethered by a text is a dangerous instrument, and I may well add that Judge
power, uncanalised by clear principles, may be equally dangerous when the
consequence of the exercise of discretion may result in the hanging of a human
being It is obvious that if judicial discretion is not guided by any standard
or norms, it would degenerate into judicial caprice, which, as is evident from
the foregoing discussion, has in fact happened and in such a situation,
unregulated and un-principled sentencing discretion in a highly sensitive area
involving a question of life and death would clearly be arbitrary and hence
violative of the equal protection clause contained in Article 14. It would also
militate against Article 21 as interpreted in Maneka Gandhi's case (supra)
because no procedure for depriving a person of his life can be regarded as
reasonable, fair and just, if it vests uncontrolled and unregulated discretion
in the court whether to award death sentence or to inflict only the punishment
of life imprisonment. The need for well recognised principles to govern the
'deadly' discretion is so interlaced with fair procedure that unregulated power
not structured or guided by any standards or principles would fall foul of
Article 21.
The respondents however contendent that the
absence of any standards or guidelines in the legislation did not affect the
constitutional validity of the death penalty, since the sentencing discretion
being vested in the court, standards or principles for regulating the exercise
of such discretion could always be evolved by the court and the court could by
a judicial fiat lay down standards or norms which would guide the Judge in
exercising his discretion to award the death penalty. Now it is true that there
are cases where the court lays down principles and standards for guidance in
the exercise of the discretion conferred upon it by a statute, but that is done
by the court only in those cases where 359 the principles or standards are
gatherable from the provisions of the statute Where a statute confers
discretion upon a court, the statute may lay down the broad standards or
principles which should guide the court in the exercise of such discretion or
such standards or principles may be discovered from the object and purpose of
the statute, its underlying policy and the scheme of its provisions and some
times, even from the surrounding circumstances. When the court lays down
standards or principles which should guide it in the exercise of its
discretion, the court does not evolve any new standards or principles of its
own but merely discovers them from the statute. The standards or principles
laid down by the court in such a case are not standards or principles created
or evolved by l' the court but they are standards or principles enunciated by
the Iegislature in the statute and are merely discovered by the court as a
matter of statutory interpretation. It is not legitimate for the court to
create or evolve any standards or principles which are not found in the
statute, because enunciation of such standards or principles is a legislative
function which belongs to the legislative and not to the judicial department.
Moreover, it is difficult to see how any standards or principles which would
adequately guide the - exercise of discretion in the matter of imposition of
death penalty can be evolved by the court. Sarkaria, J. himself has lamented
the impossibility of formulating standards or guidelines in this highly '
sensitive area and pointed out in the majority judgment:
".. there is little agreement among
penologists and jurists as to what information about the crime and criminal is
relevant and what is not relevant for fixing the dose of punishment for a
person convicted of a particular offence. According to Cessare Beccaria, who is
supposed to be the intellectual progenitor of today's fixed sentencing
movement, 'crime are only to be measured by the injury done to society.' But
the 20th Century sociologists do not wholly agree with this view. In the
opinion of Von Hirsch, the "seriousness of a crime depends both on the
harm done (or risked) by the act and degree of actor's culpability." But
how is the degree of that culpability to be measured. Can any thermometer be devised
to measure its degree? This passage from the majority judgment provides a most
complete and conclusive answer to the contention of the respon- 360 dents that
the court may evolve its own standards or principles for guiding the exercise
of its discretion. This is not a function which can be satisfactorily and
adequately performed by the court more particularly when the judicial
perception of what may be regarded as proper and relevant standards or
guidelines is bound to vary from judge having regards to his attitude and
approach, his predilections and prejudices and his scale of values and social
philosophy.
I am fortified in this view by the decision
of the Supreme Court of the United States in Furman v. Georgia (supra). The
question which was brought before the court for consideration in that Case was
whether the imposition and execution of death penalty constituted "cruel
and unusual punishment" within the meaning of the Eighth Amendment as
applied to the States by the Fourteenth. The court, by a majority of five
against four, held that the death penalty as then administered in the United
States was unconstitutional, because it was being used in an arbitrary manner
and such arbitrariness in capital punishment was a violation of the Eighth
Amendment prohibition against "cruel and unusual punishment" which
was made applicable to the States by the Fourteenth Amendment. Brennan J. and
Marshall, J. took the view that the death - penalty was per se unconstitutional
as violative of the prohibition of the Eighth Amendment. Brennan, J. held that
the death penalty constituted cruel and unusual punishment as it did not
comport with human dignity and it was a denial of human dignity for a State
arbitrarily to subject a person to an unusually severe punishment which society
indicated that it did not regard as acceptable and which could not be shown to
serve any penal purpose more effectively than a significantly less drastic
punishment. Marshall, J. stated that the death penalty violated the Eighth
Amendment because it was an excessive and unnecessary punishment and also
because it was morally unacceptable to the people of the United States. The
other three learned Judges namely, Douglas, J. Stewart, J. and White, J. did
not subscribe to the view that the death penalty was per se unconstitutional in
all circumstances but rested their judgment on the limited ground that the
death penalty as applied in the United States was unconstitutional. Douglas, J.
argued that "we deal with a system of law and of justice that leaves to
the uncontrolled discretion of judges or juries the determination whether
defendants committing these crimes should die or be imprisoned. Under these
laws no standards govern the selection of the penalty. People live or die
dependent on the whim of one man or of twelve," 361 Stewart, J. also
voiced his concern about the unguided and unregulated discretion in the
sentencing process and observed: "...the Eighth and Fourteenth Amendments
cannot tolerate the infliction of a sentence of death under legal systems that
permit this unique penalty to be so wantonly and so freakishly imposed."
The remaining four Judges, namely, Burger, C.J. Blackmun, J. Powell, J. and
Rehnquist, J. took the opposite view and upheld the constitutional validity of
the death penalty in its entirety. It will thus be seen that the view taken by
the majority decision in this case was that a law which gives uncontrolled and
unguided discretion to the Judge (or the jury) to choose arbitrarily between
death sentence and life imprisonment for a capital offence violates the Eighth
Amendment which inhibits cruel and unusual punishment. Now Sarkaria, J.
speaking on behalf of the majority, has brushed aside this decision as
inapplicable in India on the ground that we "do not have in our
Constitution any provision like the Eighth Amendment nor are we at liberty to
apply the test of reasonableness with the freedom with which the Judges of the
Supreme Court of America are accustomed to apply the 'due process'
clause." I am unable to agree with this reasoning put forward in the
majority judgment. I have already pointed out that though there is no explicit
provision in our Constitution prohibiting cruel and unusual punishment, this
Court has in Francis Mullin's case (supra) held that immunity against torture or
cruel and unusual punishment or treatment is implicit in Article 21 and
therefore, if any punishment is cruel and unusual, it would be violative of
basic human dignity which is guaranteed under Article 21. Moreover, in Maneka
Gandhi's case (supra) this court has by a process of judicial interpretation
brought in the procedural due process clause of the American Constitution by
reading in Article 21 the requirement that the procedure by which a person may
be deprived of his life or personal liberty must be reasonable, fair and just.
Douglas, J. has also pointed out in Furman's case (supra) that "there is
increasing recognition of the fact that the basic theme of equal protection is
implicit in 'cruel and unusual' punishment. A penalty ....should be considered
'unusually' imposed. if it is administered arbitrarily or
discriminatorily" and thus brought in the equal protection clause for
invalidating the death penalty. It is also significant to note that despite the
absence of provisions like the American Due Process Clause and the Eighth
Amendment, this Court speaking through Desai, J. said in 362 Sunil Batra v.
Delhi Administration.(1) "Treatment of a human being which offends human
dignity, imposes avoidable torture and reduces the man to the level of a beast
would certainly be arbitrary and can be questioned under Article 14.. ."
Krishna Iyer, J. was more emphatic and he observed in the same case.
"True, our Constitution has no 'due
process' clause or the VIII Amendment; but, in this branch of law, after Cooper..
and Maneka Gandhi........... the consequence is the same. For what is
punitively outrageous, scandalizing unusual or cruel or rehabilitatively counterproductive
is unarguably unreasonable and arbitrary and is shot down by Article 14 and 19
" It should be clear from these observations in Sunil Batra's case to
which Cbandrachud, C.J. was also a party, that Sarkaria, J. speaking on behalf
of the majority Judges, was in error in relying on the absence of the American
due process clause and the Eighth Amendment for distinguishing the decision in
Furman's case (supra) and upholding death penalty. The decision in Furman's
case cannot, therefore, be rejected as inapplicable in India. This decision
clearly supports the view that where uncontrolled and unregulated discretion is
conferred on the court without any standards or guidelines provided by the
legislature, so as to permit arbitrary and uneven imposition of death penalty,
it would be violative of both Articles 14 and 21.
It may be pointed out that subsequent to the
decision in Furman's case (supra) and as a reaction to it the legislatures of
several States in the United States passed statutes limiting or controlling the
exercise of discretion by means of explicit standards to be followed in the
sentencing process. These 'guided discretion' statutes provided standards
typically in the form of specific aggravating and mitigating circumstances that
must be taken into account before death sentence can be handed down. They also
provided for separate phases of the trial to determine guilt and punishment (I)
A.l.R. 1978 SC 1675.
363 and for automatic appellate review of
death sentences. The constitutional validity of some of these 'guided
discretion' statutes was challenged in Gregg v. Georgia (supra) and companion
cases and the Supreme Court of the United States upheld these statutes on the
ground that providing specific sentencing guidelines to be followed in a
separate post conviction phase of the trial would free the sentencing decision
of arbitrariness and discrimination. There is considerable doubt expressed by
leading jurists in the United States in regard to correctness of this decision,
because in their view the guide lines provided by these statutes in the form of
specific aggravating and/or mitigating circumstances are too broad and too
vague to serve as an effective guide to discretion. In fact, while dealing with
the challenge to the constitutional validity of a 'guided discretion' statute
enacted by the Legislature of Massachusettes, the Supreme Court of
Massachusettes by a majority held in District Attorney for the Suffolk District
v. Watson (1) that the statute providing for imposition of death penalty was
unconstitutional on the ground that it was violative of Article 26 of the
Declaration of Rights of the Massachusettes Constitution which prohibits
infliction of cruel or unusual punishment. Henneseey, C.J. pointed out that in
enacting the impugned statute the Legislature of Massachusettes had clearly
attempted to follow the mandate of the Furman opinion and its progeny by
promulgating a law of guided and channelled jury discretion, but even so it
transgressed the prohibition of Article 26 of the Declaration of Rights of the
State Constitution. The learned Chief Justice observed: " .. it follows that
we accept the wisdom of Furman that arbitrary and capricious infliction of
death penalty is unconstitutional. However, we add that such arbitrariness and
discrimination, which inevitably persists even under a statute which meets the
demands of Furman, offends Article 26 of the Massachusettes Declaration of
Rights." But we are not concerned here with the question as to whether the
decision in Gregg's case represents the correct law or the decision of the
Massachusettes Supreme Court in Watson's case. That controversy does not arise
here because admittedly neither the Indian Penal Code nor any other provision
of law sets out any aggravating or mitigating circumstance or any other
considerations which must be taken into account in determining whether death
sentence should be 364 awarded or not. Here the sentencing discretion conferred
upon the court is totally uncontrolled and unregulated or if I may borrow an
expression from Furman's decision, it is 'standardless' and unprincipled'.
It is true that there are certain safeguards
provided in the Code of Criminal Procedure, 1973 which are designed to obviate
errors in the exercise of judicial discretion in the matter of imposition of
death penalty. Section 235 sub section (2) bifurcates the trial by providing
two hearings one at the pre-conviction stage and another at the pre- sentence
stage so that at the second stage following upon conviction, the court can
gather relevant information bearing on the question of punishment and decide,
on the basis of such information, what would be the appropriate punishment to
be imposed on the offender. Section 366 sub- section (1) requires the court
passing a sentence of death to submit the proceedings to the High Court and
when such reference is made to the High Court for confirmation of the death
sentence, the High Court may under section 367 direct further inquiry to be
made or additional evidence to be taken and under section 368, confirm the
sentence of death or pass any other sentence warranted by law or annual or
alter the conviction or order a new trial or acquit the accused. Section 369
enjoins that in every reference so made, the confirmation of the sentence or
any new sentence or order passed by the High Court, shall, when such court
consists of two or more judges, be made, passed and signed by at least two of
them. Then there is also a proviso in section 379 which says that when the High
Court on appeal reverses an order of acquittal and convicts the accused and
sentences him to death, the accused shall have a right to appeal to the Supreme
Court. Lastly there is an over-riding power conferred on the Supreme Court
under Article 136 to grant, in its discretion, special leave to appeal to an
accused who has been sentenced to death. These are undoubtedly some safeguards
provided by the legislature, but in the absence of any standards or principles
provided by the legislature to guide the exercise of the sentencing discretion
and in view of the fragmented bench structure of the High Courts and the
Supreme Court, these safeguards cannot be of any help in eliminating
arbitrariness and freakishness in imposition of death penalty. Judicial ad
hocism or waywardliness would continue to characterise the exercise of
sentencing discretion whether the Bench be of two judges of the High Court or
of two or three judges of the Supreme Court and arbitrary and uneven incidence
of death 365 penalty would continue to afflict the sentencing process despite
these procedural safeguards. The reason is that these safeguards are merely
peripheral and do not attack the main problem which stems from lack of
standards or principles to guide the exercise of the sentencing discretion.
Stewart, J. pointed out in Gregg's case (supra), "...the concerns
expressed in Furman that the penalty of death not be imposed in an arbitrary or
capricious manner can be met by a carefully drafted statute that ensures that
the sentencing authority is given adequate information and guidance. As a
general proposition these concerns are best met by a system that provides for a
bifurcated proceeding at which the sentencing authority is appraised of the
information relevant to the imposition of sentence and provided with standards
to guide its use of the information." The first requirement that there
should be a bifurcated proceeding at which the sentencing authority is apprised
of the information relevant to the imposition of sentence is met by the
enactment of section 235 sub-section (2), but the second requirement that the
sentencing authority should be provided with standards to guide its use of the
information is not satisfied and the imposition of death penalty under section
302 of the Indian Penal "ode read with section 354 sub-section (3) of the
Code of Criminal Procedure, 1973 must therefore be held to be arbitrary and capricious
and hence violative of Articles 14 and 21.
There is also one other characteristic of
death penalty that is revealed by a study of the decided cases and it is that
death sentence has a certain class complexion or class bias in as much as it is
largely the poor and the down-trodden who are the victims of this extreme
penalty. We would hardly find a rich or affluent person going to the gallows.
Capital punishment, as pointed out by Warden Duffy is "a privilege of the
poor." Justice Douglas also observed in a famous death penalty case
"Former Attorney Pamsey Clark has said: 'it is the poor, the sick, the
ignorant, the powerless and the hated who are executed'. "So also Governor
Disalle of Ohio State speaking from his personal experience with the death
penalty said:
"During my experience as Governor of
Ohio, I found the men in death row had one thing in common; they were
penniless. There were other common denominators, low mental capacity, little or
no education, few friends, broken 366 homes-but the fact that they had no money
was a principal factor in their being condemned to death..." The same
point was stressed by Krishna Iyer, J. in Rajendra Prasad's case (supra) with
his usual punch and vigour and in hard hitting language distinctive of his
inimitable style:
"Who, by and large, are the men whom the
gallows swallow. The white-collar criminals and the corporate criminals whose
wilful economic and environmental crimes inflict mass deaths or who hire
assassins and murder by remote control? Rarely. With a few exceptions, they
hardly fear the halter. The feuding villager, heady with country liquor, the
striking workers desperate with defeat, the political dissenter and sacrificing
liberator intent on changing the social order from satanic misrule, the waifs
and strays whom society has hardened by neglect into street toughs, or the poor
householder-husband or wife-driven by dire necessity or burst of tantrums-it is
this person who is the morning meal of the macabre executioner."
"Historically speaking, capital sentence perhaps has a class bias and
colour bar, even as criminal law barks at both but bites the proletariat to
defend the proprietariat a reason which, incidentally, explains why corporate
criminals including top executives whom by subtle processes, account for slow
or sudden killing of large members by adulteration, smuggling, cornering,
pollution and other invisible operations, are not on the wanted list and their
offending operations which directly derive profit from mafia and white-collar
crimes are not visited with death penalty, while relatively lesser
delinquencies have, in statutory and forensic rhetoric, deserved the extreme
penalty." There can be no doubt that death penalty in its actual operation
is discriminatory, for it strikes mostly against the poor and deprived sections
of the community and the rich and the affluent usually escape from its
clutches. This circumstance also adds to the arbitrary and capricious nature of
the death penalty and renders it unconstitutional as being violative of Articles
14 and 21.
367 Before I part with this topic I may point
out that only way in which the vice of arbitrariness in the imposition of death
penalty can be removed is by the law providing that in every case where the
death sentence is confirmed by the High Court there shall be an automatic
review of the death sentence by the Supreme Court sitting as a whole and the
death sentence shall not be affirmed or imposed by the Supreme Court unless it
is approved unanimously by the entire court sitting enbanc and the only
exceptional cases in which death sentence may be affirmed or imposed should be
legislatively limited to those where the offender is found to be so depraved
that it is not possible to reform him by any curative or rehabilitative therapy
and even after his release he would be a serious menace to the society and
therefore in the interest of the society he is required to be eliminated. Of
course, for reasons I have already discussed such exceptional cases would be
practically nil because it is almost impossible to predicate of any person that
he is beyond reformation or redemption and therefore, from a practical point of
view death penalty would be almost nor-existent But theoretically it may be
possible to say that if the State is in a position to establish positively that
the offender is such a social monster that even after suffering life
imprisonment and undergoing reformative and rehabilitative therapy, he can
never be reclaimed for the society, then he may be awarded death penalty. If
this test is legislatively adopted and applied by following the procedure
mentioned above, the imposition of death penalty may be rescued from the vice
of arbitrariness and caprice.
But that is not so under the law as it stands
to-day.
This view taken by me in regard to the
constitutional validity of the death penalty under Articles 14 and 21 renders
it unnecessary for me to consider the challenge under Article 19 and I do not
therefore propose to express any opinion on that question. But since certain
observations have been made in the majority judgment of Sarkaria, J.
which seem to run counter to the decisions of
this Court in R.C Cooper v. Union of India (1) and Maneka Gandhi's case
(supra). I am constrained to add a few words voicing my respectful dissent from
those observations. Sarkaria, J.
speaking on behalf of the majority judges has
observed in the present case that the 'form and object test or 'pith and
substance rule' adopted by 368 Kania, C.J. and Fazal Ali, J. in A.K.. Gopalan
v. State of Madras (supra) is the same as the 'test of direct and inevitable
effect' enunciated in R.C. Cooper's case and Maneka Gandhi's case and it has
not been discarded or jettisoned by these two decisions. I cannot look with
equimanity on this attempt to resucitate the obsolute 'form and object test' or
'pith and substance rule' which was evolved in A.R. Gopalan's case and which
for a considerable number of years dwarfed the growth and development of
fundamental rights and cut down their operational amplitude.
This view proceeded on the assumption that
certain articles in the Constitution exclusively deal with specific matters and
where the requirement of an Article dealing with a particular matter in
question is satisfied and there is no infringement of the fundamental right guaranteed
by that Article, no recourse can be had to a fundamental right conferred by
another Article and furthermore, in order to determine which is the fundamental
right violated, the court must consider the pith and substance of the
legislation and ask the question: what is the object of the legislature in
enacting the legislation; what is the subject matter of the legislation and to
which fundamental right does it relate.
But this doctrine of exclusivity of
fundamental rights was clearly and unequivocally over-ruled in R.C. Cooper's
case by a majority of the Full Court, Ray, J. alone dissenting and so was the
'object and form test' or 'pith and substance rule' laid down in A.K. Gopalan's
case. Shah, J. speaking on behalf of the majority Judges said in R.C. Copper's
case (supra) ".. it is not the object of the authority making the law
impairing the right of a citizen, nor the form of action that determines the
protection he can claim;
it is the effect of the law and of the action
upon the right which attract the jurisdiction of the Court to grant relief. If
this be the true view, and we think it is, in determining the impact of State
action upon constitutional guarantees which are fundamental, it follows that
the extent of protection against impairment of a fundamental right is
determined not by the object of the Legislature nor by the form of the action,
but by its direct operation upon the individual's rights." "We are of
the view that the theory that the object and form of the State action determine
the extent of pro- 369 tection which the aggrieved party may claim is not
consistent with the constitutional scheme...." "In our judgment, the
assumption in A.K Gopalan's case that certain articles in the Constitution
exclusively deal with specific matters and in determining whether there is
infringement of the individual's guaranteed rights, the object and the form of
the State action alone need be considered and effect of the laws on fundamental
rights of the individuals in general will be ignored cannot be accepted as
correct." This view taken in R.C. Cooper's case has since then been
consistently followed in several decisions of which I may mention only a few,
namely, Shambhu Nath Sarkar v. State of West Bengal (1); Haradhan Saha v. State
of West Bengal;(2) Khudiram Das v. State of West Bengal (3) and Maneka Gandhi's
case (supra). I cannot therefore assent to the proposition in the majority
judgment that R.C. Cooper's case and Maneka Gandhi's case have not given a
complete go by to the test of direct and indirect effect, sometimes described
as 'form and object test' or 'pith and substance rule' evolved by Kania, C.J.
and Fazal Ali, J. in A.K. Gopalan's case and that the 'pith and substance rule'
still remains a valid rule for resolving the question of the constitutionality
of a law assailed on the ground of its being violative of a fundamental right.
Nor can I agree with the majority judgment when it says that it is Article 21
which deals with the right to life and not Article 19 and section 302 of the
Indian Penal Code is therefore not required to be tested on the touchstone of
any one or more of the clauses of Article
19. This approach of the majority judgment
not only runs counter to the decision in R.C. Cooper's case and other
subsequent decisions of this Court including Maneka Gandhi's case but is also
fraught with grave danger inasmuch as it seeks to put the clock back and
reverse the direction in which the law is moving towards realisation of the
full potential of fundamental rights as laid down in R.C. Cooper's ease and
Maneka Gandhi's case. It is significant to note that the doctrine of exclusi-
370 vity enunciated in A.K. Gopalan's case led to the property rights under
Article 19(1)(f) and 31 being treated as distinct and different rights
traversing separate grounds, but this view was over turned in Kochune's case
(1) where this Court by a majority held that a law seeking to deprive a person
of his property under Article 31 must be a valid law and it must therefore meet
the challenge of other fundamental rights including Article 19(1)(f). This
Court over ruled the proposition laid down in State of Bombay v. Bhanji
Munji(2) that Article 19(1)(f) read with clause (5) postulates the existence of
property which can be enjoyed and therefore if the owner is deprived of his
property by a valid law under Article 31, there can be no question of
exercising any rights' under Article 19(1)(f) in respect of such property. The
court ruled that even io a law seeks to deprive a person of his property under
Article 31, it must still, in order to be valid, satisfy the requirement of
Article 19 (1)(f) read with clause (5). If this be the true position in regard
to the inter-relation between Article 19 (1) (f) and Article 31, it is
difficult to see why a law authorising deprivation of the right to life under
Article 21 should not have to meet the test of other fundamental rights
including those set out in the different clauses of Article 19. But even if
section 302 in so far as it provides for imposition of death penalty as alternative
punishment has to meet the challenge of Article 19. The question would still
remain whether the 'direct and inevitable consequence' of that provision is to
affect any of the rights guaranteed under the Article. That is a question on
which I do not wish to express any definite opinion. It is sufficient for me to
state that the 'object and form test' or the 'pith and substance rule' has been
completely discarded by the decision in R.C. Cooper's case and Maneka Gandhi's
case and it is now settled law that in order to locate the fundamental right
violated by a statute, the court must consider what is the direct and
inevitable consequence of the statute. The impugned statute may in its direct
and inevitable effect invade more than one fundamental right and merely because
it satisfies the requirement of one fundamental right, it is not freed from the
obligation to meet the challenge of another applicable fundamental right.
These are the reasons for which I made my
order dated May 9, 1980 declaring the death penalty provided under section 302
of the 371 Indian Penal Code read with section 354 sub-section (3) of the Code
of Criminal Procedure, 1973 is unconstitutional and void as being 5 violative
of Articles 14 and 21. I must express my profound regret at the long delay in
delivering this judgment but. the reason is that there was a considerable mass
of material which had to be collected from various sources and then examined
and analysed and this took a large amount of time. B S.R. Appeal dismissed.
Back
