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TMI Blog1982 (8) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... N. Shroff (Gujarat & Maharashtra), Altaf Ahmed (Jammu & Kashmir), S. K. Gambhir (Madhya Pradesh), R. S. Sodhi and Hardev Singh (Punjab) G. B. Patnaik and R. K. Mehta (Orissa), A. V. Rangam (Tamil Nadu), Sukumar Ghosh and G. S. Chatterjee (West Bengal) JUDGMENT Ranjit Singh Sarkaria, J. This reference to the Constitution Bench raises a question in regard to the constitutional validity of death penalty for murder provided in Section 302, Penal Code, and the sentencing procedure embodied in sub-section (3) of Section 354 of the Code of Criminal Procedure, 1973. The reference has arisen in these circumstances: Bachan Singh, appellant in Criminal Appeal No. 273 of 1979, was tried and convicted and sentenced to death under Section 302, Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions Judge. The High Court confirmed his death sentence and dismissed his appeal. Bachan Singh's appeal by special leave, came up for hearing before a Bench of this Court (consisting of Sarkaria and Kailasam, JJ.). The only question for consideration in the appeal was, whether the facts found by the Courts below would be "special reasons" for awarding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e corrected by superior Courts... The exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguard for the accused." In Rajendra Prasad, the majority decision characterised the above observations in Jagmohan as: "incidental observations without concentration on the sentencing criteria", and said that they are not the ratio of the decision, adding. "Judgments are not Bible for every line to be venerated." (iii) In Rajendra Prasad, the plurality observed: "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)." This view again, according to Kailasam, J., is inconsistent with the law laid down by the Constitution Bench in Jagmohan, wherein it was held that deprivation of life is constitutionally permissible if that is done according to "procedure established by law". (iv) In Rajendra Prasad, the majority has further opined: "The only correct approach is to read into Section 302. I.P.C. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fered 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted 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-petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;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 anyone 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 freedom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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. In A.K. Gopalan v. The State of Madras, 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. 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, (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 reduction ad absurdum of that provision. If imprisonment were to be regarded as a 'restriction' of the right mentioned in article 19 (1) (d), it would equally be a restriction on the rights mentioned by the other sub-clauses of clause (1), with the result that all penal laws providing for imprisonment as a mode of punishment would have to run the gauntlet of clauses (2) to (6) before their validity could be accepted. For instance, the law which imprisons for theft would on that view, fall to be justified under clause (2) as a law sanctioning restriction of freedom of speech and expression." (Page 192). "Article 19 confers the rights therein specified only on the citizens of India, while article 21 extends the protection of life and personal l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations (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 attempt to find an explanation for meeting the argument that any conviction by a Court of law must necessarily infringe article 19 (1) (a). There can be no getting away from the fact that a detention as a result of a conviction impairs the freedom of speech for beyond what is permissible under clause (2) of article 19. Likewise, a detention on lawful conviction impairs each of the other personal rights mentioned in sub-clauses (3) to (6). The argument that every section of the Indian Penal Code irrespective of whether it has any reference to any of the rights referred to in sub- clauses (b) to (e) and (g) is a law imposing reasonable restriction on those several rights has not even the merit of plausibility. There can be no doubt that a detention as a result of lawful conviction must necessarily impair the fundamental personal rights guaranteed by article 19 (1) far b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if it consists in imprisonment, there is a restriction on movement. This restraint is imposed not under a law imposing restrictions on movement but under a law defining crime and making it punishable. The punishment is correlated with the violation of some other person's right and not with the right of movement possessed by the offender himself. In my opinion, therefore, the Indian Penal Code does not come within the ambit of the words "law imposing restriction on the right to move freely." (Pages 145-146). In applying the above test, which was the same as adopted by Kania, C.J., Fazal Ali, J. reached a conclusion contrary to that reached by the Chief Justice, on the following reasoning ; "Punitive detention is however essentially different from preventive detention. A person is punitively detained only after trial for committing a crime and after his guilt has been established in a competent court of justice. A person so convicted can take his case to the State High Court and sometimes bring it to this Court also; and he can in the course of the proceedings connected with his trial take all pleas available to him including the plea of want of jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 murders is not in the general public interest. It may be noted that general public interest is not specified as a head in clauses (2) to (4) on which restriction on the rights mentioned in clause (1) of the Article may be justified. It is true, as was pointed out by Hidayatullah, J. (as he then was) in Dr. Ram Manohar Lohia's [1966] 1 S.C.R. 709 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, gravi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the basic canon that a construction which would lead to absurdity, should be eschewed. In R.C. Cooper v. Union of India (popularly known as Bank Nationalization case), the majority adopted the two- fold test for determining as to when a law violated fundamental rights, namely: "(1) It is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim. (2) It is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. The direct operation of the act upon the rights forms the real test." In Maneka Gandhi v. Union of India (ibid), Bhagwati, J. explained the scope of the same test by saying that a law or and order made thereunder will be hit by article 19, if the direct and inevitable consequence of such law or order is to abridge or take away any one or more of the freedoms guaranteed by Article 19(1). If the effect and operation of the statute by itself, upon a person's fundamental rights is remote or dependent upon "factors which may or may not come into play", then such statute is not ultra-vires on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lists (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 speec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 expression guaranteed in Article 19 (1) (a), therefore, it could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how 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 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 and submitted its 35th Report in 1967 to the Government. After examining, a wealth of evidential material and considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arkaria, J.) was a party, refused to grant special leave and summarily dismissed the petition with these observations : "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 butchery 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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." 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 det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resources to apprehend, convict and execute offenders than do states with lower rates. Specifically, variations in the legal or practical status of the death penalty occasionally may be the result of, rather than the cause for, changes in the murder rate, and thus may give rise to an apparent positive association between these two variables. The same general point applies in connection with the identification of the effect of any other variable which is a product of law enforcement activity or private protection against crime. For these reasons, the true deterrent effect of a sanction such as the death penalty cannot be readily inferred from simple comparisons of the sort performed by Sellin." The learned author then (at page 33) arrives at this conclusion : "If investigations indicate that probability and length of imprisonment do impart significant deterrent effects, then failure of the research to demonstrate specifically the deterrent efficacy of capital punishment may be taken more as evidence for shortcomings in the research design and methodology or in the measures of the theoretically relevant variables used than as a reflection on the validity of the deterren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 destruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission of India in its 35th Report, after carefully sifting all the materials collected by them, recorded their views regarding the deterrent effect of capital punishment as follows: "In our view capital punishment does act as a deterrent. We have already discussed in detail several aspects of this topic. We state below, very briefly, the main points that have weighed with us in arriving at this conclusion: (a) Basically, every human being dreads death. (b) Death, as a penalty, stands on a totally different level from imprisonment for life or any other punishment. The difference is one of quality, and not merely of degree. (c) Those who are specifically qualified to express an opinion on the subject, including particularly the majority of the replies received from State Governments, Judges, Members of Parliament and Legislatures and Members of the Bar and police officers-are definitely of the view that the deterrent object of capital punishment is achieved in a fair measure in India. (d) As to conduct of prisoners released from jail (after undergoing imprisonment for life), it would be difficult to come to a conclusion, without studies extending over a long period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 channelling 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cious thoughts of individuals tempted to commit murder, but also by building up in the community, over a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... housands 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 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),"( Raspberry, Death Sentence, the Washington Post, March 12, 1976, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thoughts of the underworld, we may easily tip the scales in favour of the anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard 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 appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 Amendments. Brennan and Marshall, JJ. (differing from the plurality) went to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empts have been made in other countries, also to reintroduce death penalty. In Britain, in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesty 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 Boo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 these attempts 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 petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed 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. 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 Crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endent Central Jail, Tihar, New Delhi ([1979] 1 S.C.R. 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 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 (b) permits imposition of death penalty in an arbitrary and whimsical manner in as much as it does not lay down any rational principles or criteria for invoking this extreme sanction. (Reliance has been placed on Furman v. Georgia (ibid). (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the Court wanted to depart from this rule, it had to give reasons for doing so. This requirement was embodied in subsection (5) of Section 367, which, as it then stood, was as follows: "If the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed. The Law Commission in its 35th Report (Vol. I), made the following comments on this provision: "...a considerable body of opinion is in favour of a provision requiring the court to state its reasons for imposing the punishment either of death or of imprisonment for life. Further, this would be good safeguard to ensure that the lower courts examine the case as elaborately from the point of view of sentence as from the point of view of guilt...It would increase the confidence of the people, in the courts, by showing that the discretion is judicially exercised. It would also facilitate the task of the High Court in appeal or in proceedings for confirmation in respect of the sentence (where the sentence awarded is that of death) or in proceedings in revision for enhancement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Section 354 (3) of the Code of Criminal Procedure, 1973, marks a significant shift in the legislative policy underlying the Code of 1898, as in force immediately before Apr. 1, 1974, according to which both the alternative sentences of death or imprisonment for life provided for murder and for certain other capital offences under the Penal Code, were normal sentences. Now, according to this changed legislative policy which is patent on the face of Section 354 (3), the normal punishment for murder and six other capital offences under the Penal Code, is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception. The Joint Committee of Parliament in its Report, stated the object and reason of making this change, as follows: "A sentence of death is the extreme penalty of law and it is but fair that when a Court awards that sentence in a case where the alternative sentence of imprisonment for life is also ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing on the question of sentence. "Of course", as was pointed out by this Court in Santa Singh v. State of Punjab, A.I.R. 1976 SC. 2286 "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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, A.I.R. 1975 S.C. 1665 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 Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular 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 A.I.R.1976 SC 231=[1976] 2 SCR 684, wherein the interpretation of Section 354(3) first came up for consideration. After surveying the legislative background, one of us (Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence. The soundness or application of the other propositions in Jagmohan, and the premises on which they rest, are not affected in any way by the legislative changes since effected. On the contrary these changes reinforce the reasons given in Jagmohan, for holding that the impugned provisions of the Penal Code and the Criminal Procedure Code do not offend Articles 14 and 21 of the Constitution. Now, Parliament has in Section 354(3) given a broad and clear g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 beforehand according to the degrees of its culpability and all the aggravating and mitigating circumstances should be exhaustively and rigidly enumerated so as to exclude all free-play of discretion, the argument merits rejection. As pointed out in Jagmohan, such "standardisation" is well-nigh impossible. Firstly, there is little agreement among penolo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isation 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), the Court would not by over-leaping its bounds rush to do what Parliament, in its wisdom, verily did not do. We must leave upto the Legislature, the things that are Legislature's. "The highest judicial duty is to recognise the limits on judicial power and to permit the democratic processes to deal with matters falling outside of those limits". As Judges, we have to resist the temptation to substitute our own value choices for the will of the people. Since substituted judicial 'made-to-order' standards, howsoever painstakingly made, do not bear the peoples imprimatur, they may not have the same authenticity and efficacy as the silent zones and green belts designedly marked out and left open by Parliament in its legislative planning for fair-play of judicial discretion to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn L.C. said in Hyman and Anr. v. Rose ([1912] A.C. 623). "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 hazardous to the lives of more than one person. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violated the prohibition against the infliction of cruel and unusual punishment under the Eighth and Fourteenth Amendments. Likewise in the companion case Proffitt v. Florida (428 US 242, 49 L. Ed 2d 913 (1976)), 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pitiless crime which is unnecessarily tortuous to the victim". 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, loosened 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty, pre-planned murder for monetary gain, or by an assassin hired for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng judgment in State of Washington v. Dawson and company, 264 US 646 : 68 Lawyers Edu. 219 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 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 emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, [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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 "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 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res but also by some retentionist countries. The Ancel report alongwith the Report of the ad hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders which examined it in January 1963 was presented to the Economic and Social Council at its 35th Session when its Resolution 934 (XXXV) of 9th April 1963 was adopted. By this Resolution the Economic and Social Council urged member governments inter alia to keep under review the efficacy of capital punishment as a deterrent to crime in their countries and to conduct research into the subject and to remove this punishment from the criminal law concerning any crime to which it is, in fact, not applied or to which there is no intention to apply it. This Resolution clearly shows that there was no evidence supporting the supposed deterrent effect of the death penalty and that is why the Economic and Social Council suggested further research on the topic. Moreover, the urging of the de facto abolitionist countries by this Resolution to translate the position into de jure terms constituted an implicit acceptance of the principle of abolition. The same year, by Resolution 1918 (XVIII) of 5th December 1963, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly 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". (Emphasis supplied) In 1973 the Secretary General submitted to the Economic and Social Council at its 54th session his third report on capital punishment as requested by the Council and at this session, the Council adopted Resolution 1745 (LIV) in which, inter alia, it invited the Secretary General to submit to it periodic updated reports on capital punishment at five-year intervals starting from 1975. A fourth report on capital punishment was accordingly submitted in 1975 and a fifth one in 1980. Meanwhile the General Assembly at its 32nd Session adopted Resolution 32/61 on 8th December 1977 and this Resolution re-affirmed "the desirability of abolishing this" that is capital "punishment" in all countries. It will thus be seen that the United Nations has gradually shifted from the position o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l development would be Meaningless and ineffectual unless there is rule of law to invest them with life and force. Now if we look at the various constitutional provisions including the Chapters on Fundamental Rights and Directive Principles of State Policy, it is clear that the rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic features. The rule of law excludes arbitrariness; its postulate is 'intelligence without passion' and 'reason freed from desire'. Wherever we find arbitrariness or unreasonableness there is denial of the rule of law. That is why Aristotle preferred a government of laws rather than of men. 'Law', in the context of the rule of law, does not mean any law enacted by the legislative authority, howsoever arbitrary or despotic it may be. Otherwise even under a dictatorship it would be possible to say that there is rule of law, because every law made by the dictator howsoever arbitrary and unreasonable has to be obeyed and every action has to be taken in conformity with such law. In such a case too even where the political set up is dictatorial, it is law that governs the relationship between men an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be based on intelligible differentia having rational relationship to the object sought to be achieved by the law. But the court pointed out in Maneka Gandhi's case that Article 14 was not to be equated with the principle of classification. It was primarily a guarantee against arbitrariness in State action and the doctrine of classification was evolved only as a subsidiary rule for testing or determining whether a particular State action was arbitrary or not. The Court said "Equality is antithetical to arbitrariness. In fact, equality and arbitrariness are sworn enemies. One belongs to the rule of law while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14." The Court thus laid down that every State action must be non-arbitrary and reasonable; if it is not, the court would strike it down as invalid. This view was reaffirmed by the Court in another outstanding decision in Ramana Dayaram Shetty International Airport Authority of India & Ors. There tenders were invited by the Airport Authority f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw 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": "There has been a certain lack of candor in much of the discussion of the theme, or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations... if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute in order to save the law from the challenge of Article 14 which would inevitably result in striking down of the law if the discretion conferred were unguided and unfettered. But where after the utmost effort and intense search, no policy or principle to guide the exercise of discretion can be found, the discretion conferred by the law would be unguided and unstructured, like a tumultuous river overflowing its banks and that would render the law open to attack on ground of arbitrariness under Article 14. So also Article 19 strikes against arbitrary legislation in so far as such legislation is violative of one or the other provision of clause (1) of that Article. Sub-clauses (a) to (g) of clause (1) of Article 19 enact various Fundamental freedoms; sub-clause (1) guarantees freedom of speech and expression, sub-clause (b), freedom to assemble peacefully and without arms; sub-clause (c), freedom to form associations or unions; sub-clause (d), freedom to move freely throughout the territory of India; sub-clause (e) to reside and settle in any part of the territory of India and sub-clause (g), freedom to practise any profession or to carry on any occupation, trade or business. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [1950] SCR 88 the law provided that the Bishop of Rochester be boiled in old, it would be valid under Article 21. But in Maneka Gandhi's case (supra) which marks a watershed in the history of development of constitutional law in our country, this Court for the first time took the view that Article 21 affords protection not only against executive action but also against legislation and any law which deprives a person of his life or personal liberty would be invalid unless it prescribes a procedure for such deprivation which is reasonable fair and just. The concept of reasonableness, it was held, runs through the entire fabric of the Constitution and it is not enough for the law merely to provide some semblance of a procedure but the procedure for depriving a person of his life or personal liberty must be reasonable, fair and just. It is for the court to determine whether in a particular case the procedure is reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usted with power but tie him down from making mischief by the chains of the Constitution"; and lastly there must be an independent judicially to protect the citizen against excesses of executive and legislative power. Fortunately, whatever uncharitable and irresponsible critics might say when they find a decision of the court going against the view held by them, we can confidently assert that we have in our country all these three elements essential to the rule of law. It is plain and indisputable that under our Constitution law cannot be arbitrary or irrational and if it is, it would be clearly invalid, whether under Article 14 or Article 19 or Article 21 whichever be applicable. It is in the light of these constitutional provisions that I must consider whether death penalty provided under Section 302 of the Indian Penal Code read with section 354 sub-section (3) of the Code of Criminal Procedure is constitutionally valid. Now one thing is certain that the Constitution does not in so many terms prohibit capital punishment. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State of U.P., [1979] 3 SCC 646 "serve to indicate whether the people's consciousness has been protected towards narrowing or widening the scope for infliction of death penalty." If we look at the legislative history of the relevant provisions of the Indian Penal Code and the Code of Criminal Procedure we find that in our country there has been a gradual shift against the imposition of death penalty. "The legislative development, through several successive amendments had shifted the punitive centre of gravity from life taking to life sentence." Sub-section (5) of section 367 of the Code of Criminal Procedure 1898 as it stood prior to its amendment by Act 26 of 1955 provided : "If the accused is convicted of an offence punishable with death, and the court sentences to any punishment other than death, the court shall in its judgment state the reasons why sentence of death was not passed." This provision laid down that if an accused was convicted of an offence punishable with death, the imposition of death sentence was the rule and the awarding of a lesser sentence was an exception and the court had to state the reasons for not passing the senten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any essential deterrent effect on potential offenders. I am convinced that the contrary is true-that savagery begets only savagery...I am convinced that society as a whole and each of its members individually, not just the person who comes before the courts, bears a responsibility for the occurrence of a crime. I believe that the death penalty has no moral or practical justification and represents a survival of barbaric customs of revenge. Blood thirsty and calculated revenge with no temporary insanity on the part of the judges, and therefore, shameful and disgusting." (emphasis added) Tolstoy also protested against death sentence in an article "I Cannot be Silent": "Twelve of those by whose labour we live, the very men whom we have depraved and are still depraving by every means in our power-from the poison of vodka to the terrible falsehood of a creed we impose on them with all our might, but do not ourselves believe in- twelve of those men strangled with cords by those whom we feed and clothe and house, and who have depraved and still continue to deprave them. Twelve husbands, fathers, and sons, from among those upon whose kindness, industry and simplic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e procedural safeguards erected by the law before death penalty can be imposed, it is impossible to eliminate the chance of judicial error. No possible judicial safeguards can prevent conviction of the innocent. Students of the criminal process have identified several reasons why innocent men may be convicted of crime. In the first place, our methods of investigation are crude and archaic. We are, by and large, ignorant of modern methods of investigation based on scientific and technological advances. Our convictions are based largely on oral evidence of witnesses. Often, witnesses perjure themselves as they are motivated by caste, communal and factional considerations. Sometimes they are even got up by the police to prove what the police believes to be a true case. Sometimes there is also mistaken eye witness identification and this evidence is almost always difficult to shake in cross-examination. Then there is also the possibility of a frame up of innocent men by their enemies. There are also cases where an overzealous prosecutor may fail to disclose evidence of innocence known to him but not known to the defence. The possibility of error in judgment cannot therefore be ruled ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 (408 US 238) 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 &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess 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 considerable struggling in an effort to breathe." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am leaving aside for the moment challenge to death penalty under Article 19 and confining myself only to the challenge under Article 14 and 21. So far as this challenge is concerned the learned counsel appearing on behalf of the petitioner contended that the imposition of death penalty under section 302 of the Indian Penal Code read with section 354 sub-section (3) of the Code of Criminal Procedure was arbitrary and unreasonable, firstly because it was cruel and inhuman, disproportionate and excessive, secondly because it was totally unnecessary and did not serve any social purpose or advance any constitutional value and lastly because the discretion conferred on the court to award death penalty was not guided by any policy or principle laid down by the legislature but was wholly arbitrary. The Union of India as also the States supporting it sought to counter this argument of the petitioners by submitting first that death penalty is neither cruel nor inhuman, neither disproportionate nor excessive, secondly, that it does serve a social purpose inasmuch as it fulfils two penological goals namely, denunciation by the community and deterrence and lastly, that the judicial discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, [1957] SCR 874 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutionality 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 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even personal liberty, because personal liberty too postulates a sentient human being who can enjoy it. Where therefore a law authorises deprivation of the right to life the reasonableness, fairness and justness of the procedure prescribed by it for such deprivation must be established by the State. Such a law would be 'suspect' in the eyes of the court just as certain kinds of classification are regarded as 'suspect' in the United States of America. Throwing the burden of proof of reasonableness, fairness and justness on the State in such a case is a homage which the Constitution and the courts must pay to the right to life. It is significant to point out that even in case of State action depriving a person of his personal liberty, this Court has always cast the burden of proving the validity of such action on the State, when it has been challenged on behalf of the person deprived of his personal liberty. It has been consistently held by this Court that when detention of a person is challenged in a habeas corpus petition, the burden of proving the legality of the detention always rests on the State and it is for the State to justify the legality of the detention. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (supra) and several other subsequent decisions of the Court have clearly laid down that there is a presumption in favour of constitutionality of a statute and the burden of showing that it is arbitrary or discriminary lies upon the petitioner, because it must be presumed "that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds." Sarkaria, J. has pointed out in the majority judgment that underlying this presumption of constitutionality "is the rationale of judicial restraint, a recognition of the limits of judicial review, a respect for the boundaries of legislative and judicial functions and the judicial responsibility to guard the 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly or subconsciously, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 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 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 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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 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 inva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. When we turn to our Constitution, we find that it is a humane document which respects the dignity of the individual and The worth of the human person and directs every organ of the State to strive for the fullest development of the personality of every individual. Undoubtedly, as already pointed out above, our Constitution does contemplate death penalty, and at the time when the Constitution came to be enacted, death penalty for the offence of murder was on the statute book, but the entire thrust of the Constitution is in the direction of development of the full potential of every citizen and the right to life along with basic human dignity is highly prized and cherished and torture and cruel or in-human treatment or punishment which would be degrading and destructive of human dignity are constitutionally forbidden. Moreover, apart from the humanistic quintessence of the Constitution, the thoughts, deeds and words of the great men of this country provide the clearest indication of the prevailing standards of human 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost terrible and gruesome murders but who, having escaped the gallows, became decent and productive human beings. These and many other examples clearly show that it is not possible to know before hand with any degree of certainty 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 extent 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 prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forts 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 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 perfectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the individual who suffers 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that 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. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 abolit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icitor 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a strange irony of fate that Prime Minister Bhandarnaike who suspended the death penalty in Sri Lanka was himself murdered by a fanatic and in the panic that ensued death penalty was reintroduced in Sri Lanka. The evidence on whether the threat of death penalty has a deterrent effect beyond the threat of life sentence is therefore overwhelmingly on one side. Whatever be the measurement yardstick adopted and howsoever sharpened may be the analytical instruments they have not been able to discover any special deterrent effect. Even regression analysis, the most sophisticated of these instruments after careful application by the scholarly community, has failed to detect special deterrent effect in death penalty which is not to be found in life imprisonment. One answer which the protagonists of capital punishment try to offer to combat the inference arising from these studies is that one cannot prove that capital punishment does not deter murder because people who are deterred by it do not report good news to their police departments. They argue that there are potential murderers in our midst who would be deterred from killing by the death penalty, but would not be deterred by lif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t merely an unreasoned belief which is entertained by some people including a few penologists, judges, jurists and legislators that death penalty has a uniquely deterrent effect. When you ask these persons as to what is the reason why they entertain this belief, they will not be able to give any convincing answer beyond stating that basically every human being dreads death and therefore death would naturally act as a greater deterrent than life imprisonment. That is the same argument advanced by Sir James Fitz James Stephen, the draftsman of the Indian Penal Code in support of the deterrent effect of capital punishment. That great Judge and author said in his Essay on Capital Punishment: "No other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositions which it is difficult to prove simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 deterrent. The Advisory Council on the Treatment of offenders appointed by the Government of G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 special leave, and, barring the case of Ranga and Billa, I do not think there is a single case in which death penalty has been affirmed by this Court. There have been numerous cases where even after special leave petitions against sentence of death were dismissed, review petitions have been entertained and death sentence commuted by this Court. Then there is also the clemency power of the President under Article 72 and of the Governor under Article 161 of the Constitution and in exercise of this power, death sentence has been commuted by the President or the Governor, as the case may be, in a number of cases. The chances of imposition of death sentence following upon a conviction for the offence of murder are therefore extremely slender. This is also evident from the figures supplied to a us by the Government of India for the years 1974 to 1978 pursuant to the inquiry made by us. During the course of the hearing, we called upon the Government of India to furnish us statistica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident of India under Article 72 or by the Governor under Article 161 of the Constitution in exercise of the power of clemency. The possibility of execution pursuant to a sentence of death is therefore almost negligible, particularly after the enactment of section 354 sub-section (3) of the Code of Criminal Procedure 1973 and it is difficult to see how in these circumstances death penalty can ever act as a deterrent. The knowledge that . death penalty is rarely imposed and almost certainly, it will not be imposed takes away whatever deterrent value death penalty might otherwise have. The expectation, bordering almost on certainty, that death sentence is, extremely unlikely to be imposed is a factor that would condition the behaviour of the offender and death penalty cannot in such a situation have any deterrent effect. The risk of death penalty being remote and improvable, it cannot operate as a greater deterrent than the threat of life imprisonment. Justice Brennan and Justice White have also expressed the same view in Furman v. Georgia (supra), namely, that, when infrequently and arbitrarily imposed, death penalty is not a greater deterrent to murder than is life imprisonment. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that death penalty has a uniquely deterrent effect. It would be doing grave injustice to him and to the ideology for which he stands. In fact, the entire basis of the judgment of Krishna Iyer, J. in Rajendra Prasad's is that death penalty has not deterrent value and that is only where the killer is found to be a social monster or a beast incapable of reformation that he can be liquidated out of existence. Chinnappa Reddy, J. has also in Bishnu Deo Shaw's case (supra) taken the view that "there is no positive indication that the death penalty has been deterrent" or in other words, "the efficacy of the death penalty as a deterrent is unproven." Then reliance has been placed by Sarkaria, J. speaking on behalf of the majority on the observations of Stewart, J. in Furman v. Georgia (supra) where the learned Judge took the view that death penalty serves a deterrent as well as retributive purpose. In his view, certain criminal conduct is so atrocious that society's interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator and that, despite the on conclusive empirical evidence, only penalty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 sub-serves a penological goal and is therefore in public interest, the court must shut its eyes in respectful deference to the views expressed by these scholars and refuse to examine whether their views are correct or not. It is difficult to understand how the court, when called upon to determine a vital issue of fact, can surrender its judgment to the views of a few lawyers, judges and jurists and hold that because such eminent persons have expressed these views, there must be some substance in what they say and the provision of death penalty as an alternative punishment for murder cannot therefore be regarded as arbitrary and unreasonable. It is to my mind inconceivable that a properly informed judiciary concerned to uphold Fundamental Rights should decline to come to its own determination of a factual dispute relevant to the issue whether death penalty serves a legitimate penological purpose and rest its decision only on the circumstance that there a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a totally different level from imprisonment for life or any other punishment. The difference is one of quality, and not merely of degree. (c) Those who are specifically qualified to express an opinion on the subject, including particularly the majority of the replies received from State Governments, Judges, Members of Parliament and legislatures and Members of the Bar and police officers-are definitely of the view that the deterrent object of capital punishment is achieved in a fair measure in India. (d) As to conduct of prisoners released from jail (after undergoing imprisonment for life), it would be difficult to come to a conclusion, without studies extending over a long period of years. (e) Whether any other punishment can possess all the advantages of capital punishment is a matter of doubt. (f) Statistics of other countries are inconclusive on the subject. If they are not regarded as proving the deterrent effect, neither can they be regarded as conclusively disproving it. So far as the first argument set out in clause (a) is concerned, I have already shown that the circumstance that every human being dreads death cannot lead to the inference that death penalty act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 being on the State, it must held that the State has failed to discharge the burden which rests upon it and death penalty must therefore be held to be arbitrary and unreasonable. There was also one other argument put forward by the Law Commission in its 35th Report and that argument was that having regard to the conditions in India to the variety of social up-bringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount Deed to maintain law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment. This argument does not commend itself to me as it is based more on fear psychosis than on reason. It is difficult to see how any of the factors refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncrease in the rate of homicide. The figures which were placed before us on behalf of the Union clearly show that there was no increase in the rate of homicide even though death sentence was made awardable only in exceptional cases under section 354 sub-section (3) of the new Code of Criminal Procedure 1973. I must therefore express my respectful dissent from the view taken by the Law Commission that the experiment of abolition of capital punishment, would involve a certain element of risk to the law and order situation. It will thus be seen that death penalty as provided under section 302 of the Indian Penal Code read with section 354 sub-section (3) of the Code of Criminal Procedure, 1973 does not subserve any legitimate end of punishment, since by killing the murderer it totally rejects the reformative purpose and it has no additional deterrent effect which life sentence does not possess and it is therefore not justified by the deterrence theory of punishment. Though retribution or denunciation is regarded by some as a proper end of punishment. I do not think, for reasons I have already discussed, that it can have any legitimate place in an enlightened philosophy of punishment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge to grope in the dark for himself and in the exercise of his unguided and unfettered discretion decide what reasons may be considered as 'special reasons' justifying award of death penalty and whether in a given case any such special reasons exist which should persuade the court to depart from the normal rule and inflict death penalty on the accused. There being no legislative policy or principle to guide the court in exercising its discretion in this delicate and sensitive area of life and death, the exercise of discretion of the Court is bound to vary from judge to judge. What may appear as special reasons to one judge may not so appear to another and the decision in a given case whether to impose the death sentence or to let off the offender only with life imprisonment would, to a large extent, depend upon who is the judge called upon to make the decision. The reason for this uncertainty in the sentencing process is two-fold. Firstly, the nature of the sentencing process is such that it involves a highly delicate task calling for skills and talents very much different from those ordinarily expected of lawyers. This was pointed out clearly and emphatically by Mr. Justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appeal to another, and secondly, because reasons can always be found for a conclusion that the judge instinctively wishes to reach and the judge can bonafide and conscientiously find such reason to be 'special reasons'. It is now recognised on all hands that judicial conscience is not a fixed conscience; it varies from judge to judge depending upon his attitudes and approaches, his predilections and prejudices, his habits of mind and thought and in short all that goes with the expression "social philosophy". We lawyers and judges like to cling to the myth that every decision which we make in the exercise of our judicial discretion is guided exclusively by legal principles and we refuse to admit the subjective element in judicial decision making. But that myth now stands exploded and it is acknowledged by jurists that the social philosophy of the judge plays a not inconsiderable part in moulding his judicial decision and particularly the exercise of judicial discretion. There is nothing like complete objectivity in the decision making process and especially so, when this process involves making of decision in the exercise of judicial discretion. Every judgment ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 and transformed by love and it is immoral and unethical to kill him, while another Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not in any derogatory or disparaging sense, but as a consequence of psychological and attitudinal factors operating on the minds of the Judges constituting the Bench-'special reasons' in the case to justify award of death penalty while the latter would reject any such reasons as special reasons. It is also quite possible that one Bench may, having regard to its perceptions, think that there are special reasons in the case for which death penalty should be awarded while another Bench may bonafide and conscientiously take a different view and hold that there are no special reasons and that only life sentence should be imposed and it may not be possible to assert objectively and logically as to who is right and who is wrong, because the exercise of discretion in a case of this kind, where no broad standards or guidelines are supplied by the legislature, is bound to be influenced by the subjective attitude and approach of the Judges constituting the Bench, their value system, individual tone of their mind, the colour of their experience and the character and variety of their interests and their predispositions. This arbitrariness in the imposition of death penalty is conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similarly in one of the cases before us, namely, Bachan Singh v. State of Punjab, when it was first heard by a Bench consisting of Kailasam and Sarkaria, JJ., Kailasam, J. was definitely of the view that the majority decision in . Rajendra Prasad's case was wrong and that is why 'he referred that case to the Constitution Bench. So also in Dalbir Singh v. State of Punjab (supra), the majority consisting of Krishna Iyer, J. and Desai, J. took the view that the death sentence imposed on Dalbir Singh should be commuted to life imprisonment while A.P. Sen, J. struck to the original view taken by him in Rajendra Prasad's case and was inclined to confirm the death sentence. It will thus be seen that the exercise of discretion whether to inflict death penalty or not depends to a considerable extent on the value system and social philosophy of the Judges constituting the Bench. The most striking example of freakishness in imposition of death penalty is provided by a recent case which involved three accused, namely, Jeeta Singh, Kashmira Singh and Harbans Singh. These three persons were sentenced to death by the Allahabad High Court by a judgment and order dated 20th October 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as pointed out to the court that the death sentence imposed on Kashmira Singh had been commuted by a bench consisting of Fazal Ali, J. and myself and when this fact was pointed out, the Bench directed that the case be sent back to the President for reconsideration of the clemency petition filed by Harbans Singh. This is a classic case which illustrates the judicial vagaries in the imposition Of death penalty and demonstrates vividly, in all its cruel and stark reality, how the infliction of death penalty is influenced by the composition of the bench, even in cases governed by section 354 sub-section (3) of the Code of Criminal Procedure 1973. The question may well be asked by the accused: Am I to live or die depending upon the way in which the Benches are constituted from time to time ? Is that not clearly violative of the fundamental guarantees enshrined in Articles 14 and 21 ? 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) one of the reasons given by the courts in a number of cases for imposing death penalty is that the murder is "brutal", "cold blooded", "deliberate", "unprovoked", "fatal", "gruesome", "wicked", "callous", "heinous" or "violent". But the use of these labels for describing the nature of the murder is indicative only of the degree of the court's aversion for the nature or the manner of commission of the crime and it is possible that different judges may react differently to these situations and moreover, some judges may not regard this factor as having any relevance to the imposition of death penalty and may therefore decline to accord to it the status of "special reasons". In fact, there are numerous cases, where despite the murder being one falling within these categories, the court has refused to award death sentence. For example, Janardharan whose appeal was decided along with the appeal of Rajendra Prasad had killed his innocent wife and children in the secrecy of night and the murder was deliberate and cold blooded, attended as it was with considerable brutali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. The result is that as pointed out 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, Chawla v. State of Haryana, Raghubir Singh v. State of Haryana (supra) Bhur Singh v. State of Punjab, State of Punjab v Hari Singh and Gurudas Singh v. State of Rajasthan 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken the decision of this Court in Ediga Anamma v. State of Andhra Pradesh (supra) as the dividing line and examined the judicial decisions given by this Court subsequent to the decision in Ediga Anamma's case, where this Court had to choose between life and death under section 302 of the Indian Renal Code. The cases sub sequent to the decision in Ediga Anamma's case have been chosen for study and analysis presumbly because that was the decision in which the court for the first time set down some working formula whereby a synthesis could be reached between death sentence and life imprisonment and Krishna Iyer, J. speaking on behalf of the court, formulated various grounds which in his opinion, might warrant death sentence as an exceptional measure. But, despite this attempt made in Ediga Anamma's case to evolve some broad standards or guidelines for imposition of death penalty, the subsequent decisions, as pointed out by Professor Blackshield, display the same pattern of confusion, contradictions and aberrations as the decisions before that case. The learned author has taken 45 reported decisions given after Ediga Anamma's case and shown that it is not possible to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 court and sentencing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear principles, may be equally dangerous when the consequence of the exercise of discretion may result in the hanging of a human being It is obvious that if judicial discretion is not guided by any standard or norms, it would degenerate into judicial caprice, which, as is evident from the foregoing discussion, has in fact happened and in such a situation, unregulated and un-principled sentencing discretion in a highly sensitive area involving a question of life and death would clearly be arbitrary and hence violative of the equal protection clause contained in Article 14. It would also militate against Article 21 as interpreted in Maneka Gandhi's case (supra) because no procedure for depriving a person of his life can be regarded as reasonable, fair and just, if it vests uncontrolled and unregulated discretion in the court whether to award death sentence or to inflict only the punishment of life imprisonment. The need for well recognised principles to govern the 'deadly' discretion is so interlaced with fair procedure that unregulated power not structured or guided by any standards or principles would fall foul of Article 21. The respondents however contendent that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respondents 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot;...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 jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rman'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 and for automatic appellate review of death sentences. The constitutional validity of some of these 'guided discretion' statutes was challenged in Gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entencing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng violative of Articles 14 and 21. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 in 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 Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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