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PETITIONER: BACHAN SINGH ETC. ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB ETC. ETC.

DATE OF JUDGMENT16/08/1982

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. CHANDRACHUD, Y.V. ((CJ) SARKARIA, RANJIT SINGH GUPTA, A.C. UNTWALIA, N.L.

CITATION:  1982 AIR 1325            1983 SCR  (1) 145  1982 SCC  (3)  24        1982 SCALE  (1)713  CITATOR INFO :  E          1983 SC1155  (3,4,5,6,8,9,12,13,23,27,28,29  RF         1989 SC 653  (17)  E&D        1989 SC1335  (10)  R          1989 SC2299  (2,3)  RF         1991 SC 345  (6,11)

ACT:      (A) Death  Penalty, whether  constitutionally valid  ?- Right to  live, whether the provisions of section 302, Penal Code, offends  Article 19  of  the  Constitution-Distinction between "Public  order" and  "Law and Order"-Whether section 302, Penal Code, violates Article 21, the basic structure of the Constitution  and  Article  6(1)  of  the  International Covenant on  Civil and  Political Rights  as adopted  by the General Assembly of the United Nations and reiterated in the Stockholm Declaration.      (B) Code of Criminal Procedure, 1973, section 354(3)-If section 302,  Penal Code,  is  constitutional,  whether  the sentencing procedure  provided in section 354(3) of the Code of  Criminal   Procedure,  1973   (Act  II   of   1974)   is unconstitutional on the ground that it invests with unguided and untrammelled  discretion and allows death sentence to be arbitrarily or  freakishly imposed  on a person found guilty of murder  or any other capital offence punishable under the Indian Penal  Code with  death or,  in the  alternative with imprisonment for life.      (C) Powers  of the  Supreme Court to lay down standards or norms restricting the area of imposition of death penalty to a narrow category of murders.

HEADNOTE:      Upholding the  constitutionality of  section 302, Penal Code, and  section 354 (3) of the Code of Criminal Procedure Code. the Court. ^      HELD: Per majority.      Sarkaria, J.  [On behalf  of  Chandrachud,  C.J.,  A.C. Gupta, N.L. Untwalia, JJ. and on his own behalf].      The right to life is not one of the rights mentioned in

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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

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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

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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.

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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

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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

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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

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sense, to  kill is to be cruel and therefore all murders are cruel.  But   such  cruelty   may  vary  in  its  degree  of culpability. And it is only when the culpability assumes the proportion of  extreme depravity  that "special reasons" can legitimately be said to exist.                                           [251 G-H, 252 A-C]      Rajendra Prasad  v. State  of U.P.  [1979] 3 SCR p. 78, Bishnu Deo  Shaw v.  State of  West Bengal,  [1979] 3 SCR p. 355, overruled.      13. There  are numerous  other circumstances justifying the  passing   of  the   lighter  sentence,   as  there  are countervailing  circumstances  of  aggravation.  "We  cannot obviously feed  into a judicial computer all such situations since they  are astrological  imponderables in  an imperfect and undulating  society." Nonetheless,  it  cannot  be  over emphasised that  the scope and concept of mitigating factors in the  area of  death penalty  must receive  a liberal  and expansive construction  by the  courts in  accord  with  the sentencing policy  writ large  in section  354  (3).  Judges should never  be blood-thirsty.  Hanging  of  murderers  has never been  too good  for them.  Facts and  figures,  albeit incomplete, furnished  by the  Union of  India, show that in the past,  Courts have  inflicted the  extreme penalty  with extreme infrequency-a  fact which attests to the caution and compassion which  they have  always brought  to bear  on the exercise of  their  sentencing  discretion  in  so  grave  a matter. It  is, therefore,  imperative to  voice the concern that Courts,  aided by  the  broad  illustrative  guidelines indicated by  the Supreme  Court, will discharge the onerous function with  evermore scrupulous  care and humane concern, directed along  the highroad  of legislative policy outlined in section  354 (3),  viz., that  for persons  convicted  of murder life  imprisonment is  the rule and death sentence an exception. A  real and  abiding concern  for the  dignity of human life  postulates resistance  to taking  a life through law’s instrumentality. That ought Lot to be done save in the rarest  of   rare  cases  when  the  alternative  option  is unquestionably foreclosed. [255 E-H, 256 A-C]      Per Bhagwati J. (Dissenting)      1:1. Ordinarily,  on the  principle of  stare  decisis, Judges would  hold themselves  bound by the view taken in an earlier case  and resist  any attempt  at reconsideration of the  same   issue.  But,   for  several  weighty  and  given considerations, the  Court can depart from this precedential rule in any particular case.                                                    [258 A-B]      1:2. The rule of adherence to precedence is not a rigid and inflexible  rule of  law, but  it is  a rule of practice adopted by the Courts for the purpose of ensuring uniformity and stability  in  the  law.  Otherwise  there  will  be  no certainty and  predictability in  the law,  leading to chaos and confusion and in the process 153 destroying the  rule of  law, and  increasing the  labour of judges. But  this rule  of adherence to precedents; though a necessary tool  "in the  legal smithy,"  is  only  a  useful servant and  can not  be allowed  to turn  into a  tyrannous master. If  the rule  of stare decisis were followed blindly and mechanically,  it would dwarf and stultify the growth of the law  and affect  its capacity  to adjust  itself to  the changing needs of the society. [258 B-C, D,E,F]      1:3 There  are certain issues which transcend technical considerations of  stare decisis  and if  such an  issue  is brought before  the Court,  it would  be  nothing  short  of abdication of  its constitutional  duty  for  the  Court  to

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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

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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

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arbitrary or  irrational and  if it  is, it would be clearly invalid, whether  under Article  14 or Article 19 or Article 21, whichever be applicable. [275 E-H. 276 A-B]      Minerva Mill’s  case [1981]  1 SCR 206; Maneka Gandhi’s case [1978]  2 SCR  621; Airport  Authority of  India’s case [1979] 3 SCR 1014; A.K. Gopalan’s case [1950] 3 SCR 88; F.C. Mullen’s case [1981] 2 SCR 516 referred to.      2:7.  The  Constitution  does  not  in  so  many  terms prohibit capital  punishment. In  fact, it  recognises death sentence as  one of  the penalties  which may  be imposed by law. Apart  from Article  21, Clause  (C) of Article 72 also recognises the  possibility of  a sentence  of  death  being imposed on  a person  convicted of an offence inasmuch as it provides that the President shall have the power to suspend, remit or commute the sentence of any person who is convicted of  an  offence  and  sentenced  to  death.  Therefore,  the imposition of death sentence for conviction of an offence is not in  all cases  forbidden by  the Constitution.  But that does not  mean that  the  infliction  of  death  penalty  is blessed by the Constitution or that it has the imprimatur or seal of  approval of  the Constitution.  The Constitution is not a  transient document  but it  is meant  to endure for a long time  to come and during its life, situations may arise where death  penalty may  be found to serve a social purpose and its  prescription may  not be  liable to  be regarded as arbitrary  or   unreasonable  and  therefore  to  meet  such situations, the  Constitution had  to make  a provision  and this it  did in  Article 21  and clause (c) of Article 72 so that, even  where death penalty is prescribed by any law and it is  otherwise not  unconstitutional, it must still comply with the  requirement of  Article 21 and it would be subject to the  clemency power  of the President under clause (c) of Article 72. [276 D-H, 277 A-B]      2:8. From  the  legislative  history  of  the  relevant provisions of the Indian Penal Code and the Code of Criminal Procedure, it  is clear that in our country there has been a gradual shift  against the imposition of death penalty. Life sentence is  now the  rule and  it is  only  in  exceptional cases, for  special reasons,  that  death  sentence  can  be imposed. The  legislature has however not indicated what are the special reasons for which departure can be made from the normal  rule   and  death  penalty  may  be  inflicted.  The legislature has  not given any guidance as to what are those exceptional cases in which, deviating from the normal 156 rule, death  sentence may  be imposed. This is left entirely to the  unguided discretion  of the  court, a feature, which has lethal  consequences so  far as the constitutionality of death penalty is concerned. [277 C-D, 278 E-G]      Rajendra Prasad  v. State  of U.P. [1979] 3 S.C.R. 646, referred to.      2:9. The  problem of  constitutional validity  of death penalty cannot  be appreciated  in  its  proper  perspective without an  adequate understanding  of the  true  nature  of death penalty and what it involves in terms of human anguish and  suffering.   In  the  first  place,  death  penalty  is irrevocable; it  cannot be  recalled.  It  extinguishes  the flame of  life for  ever and  is plainly  destructive of the right to  life, the  most precious  right of  all,  a  right without which enjoyment of no other rights is possible. If a person is sentenced to imprisonment, even if it be for life, and subsequently  it is  found that  he was innocent and was wrongly convicted,  he can  be  set  free.  Of  course,  the imprisonment that he has suffered till then cannot be undone and the time he has spent in the prison cannot be given back

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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

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imprisonment is  wholly unfounded.  Even the various studies carried  out  clearly  establish  beyond  doubt  that  death penalty does  not have  any special  deterrent effect  which life sentence  does not  possess and that in any event there is no  evidence at all to suggest that death penalty has any such special deterrent effect. [316 A, 321 G-H]      2:14. Death  penalty as  provided under  section 302 of the Indian  Penal Code read with section 354 sub-section (3) of the  Code of  Criminal Procedure, 1973 does not sub-serve any legitimate  end of  punishment,  since  by  killing  the murderer it  totally rejects  the reformation purpose and it has no  additional deterrent effect which life sentence does not possess  and  it  is  therefore  not  justified  by  the deterrence  theory  of  punishment.  Though  retribution  or denunciation  is  regarded  by  some  as  a  proper  end  of punishment, it  cannot  have  any  legitimate  place  in  an enlightened  philosophy   of  punishment.  Therefore,  death penalty has  no  rational  penological  purpose  and  it  is arbitrary and  irrational and hence violative of Articles 14 and 21 of the Constitution.                                                    [340 D-F]      2:15. On  a plain  reading of section 302 of the Indian Penal Code  which  provides  death  penalty  as  alternative punishment of  murder it is clear that it leaves it entirely to the  discretion of  the Court  whether  to  impose  death sentence or  to award  only life  imprisonment to an accused convicted of the offence of murder. Section 302 does not lay down any  standards or principles to guide the discretion of the Court  in the matter of imposition of death penalty. The critical choice  between physical  liquidation and life long incarceration is  left to the discretion of the Court and no legislative light is shed as to how this 158 deadly discretion is to be exercised. The court is left free to navigate  in an  unchartered sea  without any  compass or directional guidance. [341 A-C]      2:16.  Actually   section  354   (3)  of  the  Criminal Procedure  Code   makes  the  exercise  of  discretion  more difficult and uncertain. It is left to the Judge to grope in the dark for himself and in the exercise of his unguided and unfettered discretion  decide what reasons may be considered as ’special  reasons’ justifying  award of death penalty and whether in a given case any such special reasons exist which should persuade the Court to depart from the normal rule and inflict  death  penalty  on  the  accused.  There  being  no legislative policy  or  principle  to  guide  the  Court  in exercising its  discretion in  this delicate  and  sensitive area of  life and  death, the  exercise of discretion of the Court is  bound to vary from judge to judge. What may appear as special reasons to one judge may not so appear to another and the decision in a given case whether to impose the death sentence  or   to  let  off  the  offender  only  with  life imprisonment would,  to a  large extent,  depend upon who is the judge  called upon  to make the decision. The reason for his uncertainty  in  the  sentencing  process  is  two-fold. Firstly, the  nature of  the sentencing process is such that it involves  a highly  delicate task  calling for skills and talents very  much different  from those ordinarily expected of lawyers.  Even  if  considerations  relevant  to  capital sentencing were  provided by  the legislature, it would be a difficult exercise  for the  judges  to  decide  whether  to impose the  death penalty or to award the life sentence. But without any  such guidelines  given by  the legislature, the task of  the judges  becomes much  more  arbitrary  and  the sentencing decision  is  bound  to  vary  with  each  judge.

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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

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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

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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]

JUDGMENT:      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)

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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

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(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

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    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

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    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

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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

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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

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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

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         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

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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

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         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

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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

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    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).

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    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

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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

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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

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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

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    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

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    (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

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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 avilable 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

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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.

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    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

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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

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    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

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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

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    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

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    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

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    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

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    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  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

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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:

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    (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

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    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

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    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 retribu- 211 tion, 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

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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

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    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

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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

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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

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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);

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    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

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    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  Encyclopaedia Britannica  Year Book 1979, in 1978  also penologists  were seriously  divided in  their views about  the end  of punishment. Some penologists argued that  "It   is   not   possible   to   punish   and   reform simultaneously":  while   "others  would   prefer  to  strip punishment of  its moral overtones", "While many Legislators and most  penologists have  supported the  idea that  reform ought to  take priority  in  dealing  with  offenders,  many Judges especially  in Britain  and the  United States, where rising crime  rates are  the source  of much  public concern have expressed  grave doubts  about the wisdom of this view. They have  argued that  the courts  must  reflect  a  public abhorrence of  crime and  that  justice  demands  that  some attempt be made to impose punishment fitting to the crime".      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,

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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

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    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

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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.

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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

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         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,

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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

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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

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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

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              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

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              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

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    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 muder 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

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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

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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 alter 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.

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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

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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

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    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

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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

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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

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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

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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

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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

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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

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         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.

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    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

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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

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    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

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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,

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    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

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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: 264      3.   "Everyone has  the  right  to  life,  liberty  and           security of person."      5.   "No one shall be subjected to torture or to cruel,           inhuman or degrading treatment or punishment. The United  Nations’  position  on  the  question  of  death penalty was  expected to  be stated more specifically in the International Covenant  on Civil  and Political  Rights, the drafting of which had been under way since the first session of the Commission on Human Rights in 1947. But during the 11 year period  of drafting  of the  relevant provision  of the Covenant, two  main  approaches  to  the  issue  of  capital punishment became evident: one stressed the need for barring the  death   penalty  and  the  second  placed  emphasis  on resstricting  its   application  to   certain   cases.   The proponents of  the first position suggested either the total abolition of  the death  penalty or its abolition in time of peace or  for political  offences. This approach was however regarded as  unfeasible,  since  many  countries,  including abolitionist ones,  felt that  the provision for an outright ban on  the death  penalty would  prevent some  States  from ratifying the  Covenant,  but  at  the  same  time,  it  was insisted by  many countries  that the  Covenant  should  not create the  impression of  supporting or  perpetuating death penalty and  hence a  provision to  this  effect  should  be included. The  result was that the second approach stressing everyone’s right  to  life  and  emphasizing  the  need  for restricting the  application of  capital punishment  with  a view to eventual abolition of the death penalty, won greater support and  Article 6 of the Covenant as finally adopted by the General  Assembly in  its  resolution  2000(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

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         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

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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

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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

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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.

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    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

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    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

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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

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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

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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 :

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         "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 sen- __________________      (1) [1979] 3 SCC 646. 278 tence 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

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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

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    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 for ever and  is plainly  destructive of  the right to life, the most precious  right of all, a right without which enjoyment of no  other rights  is possible.  It silences  for  ever  a living  being  and  despatches  him  to  that  ’undiscovered country from whose bourn no traveller returns’ nor, 282 once executed,  ’can stored urn or animated bust back to its mansion call  the fleeting  breath’. It  is by reason of its

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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.

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    Howsoever careful  may  be  the  procedural  safeguards erected by  the law  before death penalty can be imposed, it is impossible  to eliminate the chance of judicial error. No possible judicial  safeguards can  prevent conviction of the innocent. Students  of the  criminal process have identified several reasons  why innocent men may be convicted of crime. In the  first place,  our methods of investigation are crude and archaic.  We are,  by  and  large,  ignorant  of  modern methods   of   investigation   based   on   scientific   and technological advances. Our convictions are based largely on oral  evidence   of  witnesses.   Often,  witnesses  perjure themselves as  they are  motivated by  caste,  communal  and factional considerations. Some times they are even got up by the police  to prove  what the  police believes to be a true case.  Sometimes   there  is   also  mistaken   eye  witness identification and  this evidence is almost always difficult to shake  in  cross-examination.  Then  there  is  also  the possibility of  a frame up of innocent men by their enemies. There are  also cases  where an  over zealous prosecutor may fail to  disclose evidence of innocence known to him but not known to  the defence.  The possibility of error in judgment cannot  therefore   be  ruled   out   on   any   theoretical considerations. It  is indeed a very live possibility and it is not at all unlikely that so long as death penalty remains a constitutionally valid alternative, the court or the State acting through  the instrumentality of the court may have on its conscience the blood of an innocent man. 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

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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

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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

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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

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can be  shown to  one who  did not show any mercy to others. But, as  I shall  presently point  out,  this  justificatory reason  cannot  commend  itself  to  any  civilised  society because  it  is  based  on  the  theory  of  retribution  or retaliation and  at the  bottom of it lies the desire of the society to avenge itself against the wrong doer. That is not a permissible penological goal.      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 argu- 290 ment 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

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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)

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    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

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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

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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 righ  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

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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 constitu- 297 tionality  "is   the  rationale  of  judicial  restraint,  a recognition of  the limits of judicial review, a respect for the boundaries of legislative and judicial functions and the judicial responsibility to guard the tresspass from one side or the other." The learned Judge with a belief firmly rooted in the  tenets of  mechanical jurisprudence,  has taken  the view  that  "the  primary  function  of  the  Courts  is  to interpret and  apply the laws according to the will of those who made  them and  not to  transgress into  the legislative domain of  policy making." Now there can be no doubt that in adjudicating upon  the constitutional validity of a statute, the Judge  should show deference to the legislative judgment and should  not be  anxious to strike it down as invalid. He does owe  to the  legislature a  margin of  tolerance and he must constantly  bear in  mind that he is not the legislator nor is  the court  a representative body. But I do not agree with Sarkaria, J. when he seems to suggest that the judicial role is,  as it  was for  Francis Bacon, ’jus dicere and not jus dare; to interpret law and not to make law or give law.’ The function  of the  Court undoubtedly  is to interpret the law  but  the  interpretative  process  is  highly  creative function and  in this  process, the Judge, as pointed out by Justice Holmes, does and must legislate. Lord Reid ridiculed as ’a  fairytale’ the  theory that in some Aladdin’s cave is hidden the  key to  correct judicial  interpretation of  the law’s demands  and even  Lord Diplock acknowledged that "The court may  describe what  it is  doing  in  tax  appeals  as interpretation. So  did the priestess of the Delphic Oracle.

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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

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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

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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 nota 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

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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

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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 per - sonality  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 alonggwith 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

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    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. More over,  it is  difficult to see bow death penalty can be regarded as pro- 305 portionate 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 ?

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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 justi- 307 fications traditionally advanced in support of punishment in general, namely,  (1) reformation;  (2) denunciation  by the community or  retribution and  (3) deterrence. These are the three ends  of punishment, its three penological goals, with reference to  which any punishment prescribed by law must be justified. If  it cannot  be justified with reference to one or the  other of  these three penological purposes, it would have to  be condemned  as arbitrary and irrational, for in a civilised society governed by the rule of law, no punishment can be  inflicted on  an individual  unless it  serves  some social  purpose.   It  is  a  condition  of  legality  of  a punishment that  it  should  serve  a  rational  legislative purpose or  in other  words, it  should  have  a  measurable social  effect.  Let  us  therefore  examine  whether  death penalty for  the offence of murder serves any legitimate and of punishment.      It would be convenient first to examine the examine the constutionality of  death  penalty  with  reference  to  the

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reform  tory  end  of  punishment.  The  civilised  goal  of criminal justice  is the  reformation of  the  criminal  and death penalty  means abandonment  of this goal for those who suffer  it.   Obviously  death   penalty  cannot  serve  the reformatory goal  because it  extinguishes life  and puts an end to  any possibility  of reformation. In fact, it defeats the reformatory  end of  punishment. But the answer given by the protagonists  of death  penalty to this argument is that though there  may be a few murderers whom it may be possible to reform  and rehabilitate,  what about  those killers  who cannot be  reformed and rehabilitated ? Why should the death penalty be  not awarded to them ? But even in their cases, I am afraid, the argument cannot be sustained. There is no way of accurately predicting or knowing with any degree of moral certainty that  a  murderer  will  not  be  reformed  or  is incapable of  reformation. All  we know  is that  there have been many  many successes  even with  the  most  vicious  of cases. Was 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 before hand 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

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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

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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

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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 lang  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 consti- 312 tutional value  advanced by doing so. I have already pointed out that  death penalty  runs  counter  to  the  reformatory theory of  punishment and  I  shall  presently  discuss  the deterrent aspect  of  death  penalty  and  show  that  death penalty  has   not  greater   deterrent  effect   than  life imprisonment. The only ground on which the death penalty may therefore be  sought to be justified is reprobation which as already pointed  out, is  nothing but  a different  name for revenge and  retaliation. But  in a  civilised society which believes in the dignity and worth of the human person, which acknowledges and  protects the  right to  life as  the  most precious  possession   of  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

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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

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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:

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         "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  com mission  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 sorrounding 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

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terror for  the criminal  which acts  as a deterrent against the commission  of the  crime. Even  an eminent  judge  like Justice Frank  Furter 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

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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

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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

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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.

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    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

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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

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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  ed  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 328 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

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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

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    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 so severe as to destroy the future of any one  subjected to them, the crime would not be committed by a  rational man  unless he  thinks that  there is  little chance of  detection. What  would weigh  with him  in such a case  is   the  uncertainty   of  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

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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 suggestio falsi and      once this  is detected  its cogency  as an  argument in      favour of  the death   penalty  for murder vanishes for      there is  really no parallel between the situation of a      convicted  murderer   over  the   alternative  of  life      imprisonment in  the shadow  of  the  gallows  and  the      situation of  the murderer contemplating his crime. The      certainty of  death is  one thing,  perhaps for  normal      people  nothing  can  be  compared  with  it.  But  the      existence of  the death  penalty does  not mean for the      murderer certainty of death now. It means not very high      probability of  death in  the future. And, futurity and      uncertainty,  the   hope  of  an  escape,  rational  or      irrational, vastly  diminishes the  difference  between      death and  imprisonment as , deterrent and may diminish      to vanishing  point... The  way in  which the convicted      murderer may view the immediate prospect of 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 being what it is and the criminal  law of  our country having a tilt in favour of the accused,  the killer  and look  forward to  a chance  of acquittal at  the trial. Secondly, even if the trial results in a  conviction, it  would  not,  in  all  probability,  be followed 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

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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 infinitesingly small  number of  cases, only  29 out  of  an aggregate number of approximately 85,000 cases of murder, in which death  sentence was  executed. Of  course, the figures supplied by the 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

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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 empiri- 334 cal 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 Dot 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

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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

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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 under  going  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.

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    (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 death 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 they Law Commission that death as a penalty stands  on  a  totally  different  level  from  life imprisonment and  the difference  between  them  is  one  of quality and not merely of degree, but I fail to see how from this circumstance  an inference  can necessarily follow that death penalty  has a  uniquely deterrent  effect. Clause (c) sets out  that those  who are specially qualified to express an opinion  on the  subject have  in their  replies  to  the questionnaire stated  their definite view that the deterrent effect of  capital punishment  is achieved in a fair measure in India.  It may be that a large number of persons who sent replies to  the questionnaire  issued by  the Law Commission might have expressed the view that death penalty does act as a deterrent  in our  country, but mere expression of opinion in reply  to  the  questionnaire,  unsupported  by  reasons, cannot have  any evidenciary value. There are quite a number of  people   in  this   country  who   still   nurture   the superstitions and  irrational  belief,  ingrained  in  their minds by  a century  old practice  of imposition  of capital punishment and  fostered, though  not  consciously,  by  the instinct for  retribution, that  death penalty alone can act as an  effective deterrent  against the  crime of  murder. I have already  demonstrated how  this belief  entertained  by lawyers, judges,  legislators and  police officers is a myth and it  has no  basis in  logic  or  reason.  In  fact,  the statistical research  to which  I have  referred  completely falsifies this  belief. Then,  there are  the  arguments  in clauses (d)  and (e)  but these  arguments even according to the  Law  Commission  itself  are  inconclusive  and  it  is difficult to  see how they can be relied upon to support the thesis that  capital punishment acts as a deterrent. The Law Commission states  in clause  (f) that  statistics of  other countries are inconclusive on the subject. I do not agree. I have already  dealt with  this argument  and shown  that the statistical studies  carried  out  by  various  jurists  and criminologists clearly disclose That there is no evidence at all to suggest that death penalty acts as a deterrent and it must therefore  be  held  on  the  basis  of  the  available material that death penalty does not act as a deterrent. But even if  we accept  the  proposition  that  the  statistical studies are  inconclusive and  they cannot  be  regarded  as proving that  death penalty  has no  deterrent effect, it is clear that  at the same time they also do not establish that death penalty  has a  uniquely deterrent  effect and in this situation, the burden of establishing that death penalty has an additional  deterrent effect which life sentence does not have and therefore serves a penological purpose 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

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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

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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 life long 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

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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 be      come 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 depen- ding 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

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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- 344      theless, we can never see them with any eyes except our own." It may  be noted that the human mind, even at infancy, is no blank sheet  of paper.  We are  born with predisposition and the process  of education, formal and informal, and, our own subjective experiences  create attitudes  which effect us in judging situations  and coming  to decisions.  Jerome  Frank says  in  his  book;  "Law  and  the  Modern  Mind",  in  an observation with which I find myself in entire agreement:           "Without acquired  ’slants’  preconceptions,  life      could  not  go  on.  Every  habit  constitutes  a  pre-      judgment; were those pre-judgments which we call habits      absent in  any person,  were he  obliged to treat every      event as  an unprecedented  crisis presenting  a wholly      new problem,  he would  go mad.  Interests,  points  of      view, preferences,  are the  essence  of  living.  Only      death  yields   complete  dispassionateness,  for  such      dispassionateness  signifies  utter  indifference..  An      ’open mind’  in the  sense of a mind containing no pre-      conceptions whatever,  would be  a  mind  incapable  of      learning anything, would be that of an utterly emotion-      less human being." It must  be remembered  that "a  Judge  does  not  shed  the attributes of  common humanity  when be 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

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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

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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

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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

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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  upto 1976 in terms of the reasons given by the court  for awarding or refusing to award death sentence. The  analysis   made  by   him  is   quite   rewarding   and illuminating.      (i)  one of the reasons given by the courts in a number           of cases  for imposing  death penalty  is that the           murder is  "brutal", "cold blooded", "deliberate",           "unprovoked",   "fatal",   "gruesome",   "wicked",           "callous", "heinous"  or "violent". But the use of           these labels  for describing  the  nature  of  the           murder is  indicative only  of the  degree of  the           court’s aversion  for the  nature or the manner of           commission of  the crime  and it  is possible that           different judges  may react  differently to  these

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         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 establi-           shed 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. Sate 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

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         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 im-      portance should  be given to the factor of delay and if      so to  what extent are matters entirely within the dis-      cretion 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 despatch,  engineered  or           natural, then  the accused may escape the gallows,           subject of course to the judicial vagaries arising           from  other  causes.  In  other  words,  the  more           efficient the  proceeding, the  more  certain  the           death sentence and vice-versa.      (v)  The embroilment  of  the  accused  in  an  immoral           relationship has  been  condoned  and  in  effect,           treated as an extenuating factor in Raghubir Singh           v. State of Haryana (supra) and Basant Laxman More           v. State of Maharashtra(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

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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 354 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 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

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    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      calculas. 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 McNaghten rules, because of the insane      fury -  of the slaughter. A big margin of subjectivism,      a preference  for old  English precedents,  theories of      modern  penology,   behavioral   emphasis   or   social      antecedents,   judicial    hubris   or   human   rights      perspectives, criminological  literacy -.  or fanatical      reverence for  outworn social  philosophers burried  in      the debris  of time  except as  part of  history-this 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

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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  no 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

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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  im- prisonment. 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

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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,

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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

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    case.           "True,  our  Constitution  has  no  ’due  process’      clause or  the VIII  Amendment; but,  in this branch of      law, after  Cooper.. and  Maneka Gandhi...........  the      consequence  is   the  same.  For  what  is  punitively      outrageous,   scandalizing    unusual   or   cruel   or      rehabilitatively  counter   productive  is   unarguably      unreasonable and  arbitrary and is shot down by Article      14 and 19 " 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

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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

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main  problem   which  stems   from  lack  of  standards  or principles  to   guide  the   exercise  of   the  sentencing discretion. Stewart, J. pointed out in Gregg’s case (supra), "...the concerns  expressed in  Furman that  the penalty  of death not  be imposed  in an  arbitrary or capricious manner can be  met by a carefully drafted statute that ensures that the sentencing  authority is  given adequate information and guidance. As  a general  proposition these concerns are best met by a system that provides for a bifurcated proceeding at which  the   sentencing  authority   is  apprised   of   the information relevant  to  the  imposition  of  sentence  and provided  with   standards  to   guide  its   use   of   the information." The  first requirement  that there should be a bifurcated proceeding  at which  the sentencing authority is apprised of  the information  relevant to  the imposition of sentence is  met by the enactment of section 235 sub-section (2),  but   the  second   requirement  that  the  sentencing authority should be provided with standards to guide its use of the  information is  not satisfied  and the imposition of death penalty  under section  302 of  the Indian  Penal "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

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    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

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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,  some times  described as ’form and object  test’ or  ’pith and  substance rule’  evolved by Kania, C.J.  and Fazal  Ali, J.  in A.K.  Gopalan’s case and that the  ’pith and  substance rule’  still remains  a valid

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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

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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. 372