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TMI Blog1983 (9) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... the CrPC provides that: When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. The petitioners challenge the constitutional validity of this provision on the ground that hanging a convict by rope is a cruel and barbarous method of executing a death sentence, which is violative of Article 21 of the Constitution That article provides that : No person shall be deprived of his life or personal liberty except according to procedure established by law. 3. The validity of death sentence which Section 302 prescribes for the offence of murder was upheld by this Court in Bachan Singh. 1980CriLJ636. The ratio of that decision is that the normal sentence for murder is life imprisonment and that the sentence of death can be imposed in a very exceptional class of cases, described in that judgment as the 'rarest of rare cases'. Which kind of cases would precisely fall within that category is in the very nature of things difficult to define and even to describe. But, all the same, a studied attempt was made by this Court in Machhi Singh 1983CriLJ1457 to identify, though not to crystalize, the area of those rarest of rare cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutionally permissible to prescribe the sentence of death. It is urged on behalf of the petitioners that the question as regards the validity of Section 354(5) of the CrPC was neither argued in Bachan Singh nor considered by the Court. 6. The objection taken by the learned Solicitor General is not without substance but for reasons which we will presently indicate, we do not propose to accept it. At page 196 of the Report in Bachan Singh,(1) the main arguments of the 'Abolitionists' which were, "substantially adopted" by counsel for the petitioners therein are reproduced in Clauses (a), (b) and (c). Under Clause (c), the argument is reproduced thus : "Execution by whatever means and for whatever offence is cruel, inhuman and degrading punishment", by which is obviously meant 'execution of death sentence'. The argument mentioned in Clause (a) to the effect that the death penalty is unconstitutional because it is irreversible is considered at pages 196 and 197 of the Report. The argument mentioned in Clause (b) as to whether death penalty serves any penological purpose at all is considered at page 197. Though the arguments mentioned in Clauses (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olves is also no less cruel and inhuman. In India, the method of execution followed is hanging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the Royal Commission on Capital Punishment 1949-53 found that hanging is the most humane method of execution and so also in Ichikawa v. Japan, the Japanese Supreme Court held that execution by hanging does not correspond to cruel punishment inhibited by Article 36 of the Japanese Constitution. But whether amongst all the methods of execution, hanging is the most humane or in view of the Japanese Supreme Court, hanging is not cruel punishment within the meaning of Article 36, one thing is clear that hanging is undoubtedly unaccompanied by intense physical torture and pain." (emphasis ours). Thereafter, the learned Judge refers to the description of the method of hanging given by warden Duffy of San Quentin, a high security prison in America and the description given in 1927 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a decision it would not be right to say that the question as regards the constitutional validity of Section 354(5) of the Code was either directly put in issue in that case or was argued upon or was considered by the Court as an independent reason bearing upon the validity of the death sentence. The question which the petitioners have raised in these writ petitions is important not only from the legal and constitutional point of view but also from the sociological point of view. It will not be proper to side-track that question and refuse to examine it fully because of the incidental consideration which it received in Bachan Singh. Accordingly, we reject the preliminary objection raised by the learned Solicitor General and proceed to examine the question raised by the petitioners on its own merits, on the basis that the question is still open to argument. 10. The petitioners, who have been sentenced to death for acts of outrageous brutality, have presented their case with an air of injured innocence. Their claim is that no matter what pain and suffering they may have inflicted upon their victims and their families, no pain or suffering whatsoever shall be caused to them while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the demand for civilized, humane and painless treatment is made by those who have been found guilty of subjecting their victims to uncivilized and inhuman acts involving great torture and suffering. The retribution involved in the theory Tooth for tooth' and 'an eye for eye' has no place in the scheme of civilized jurisprudence and we cannot turn a deaf ear to the petitioners' claim for justice on the ground that the enormity of their crimes has resulted in grave injustice to the victims of these crime. We are concerned to ensure due compliance with constitutional mandates, no matter the occasion. If it were not so, smugglers who are detained under the laws of detention shall have to be denied the protection of Article 22 of the Constitution on the ground that they are guilty of acts which sabotage the economy of the country. Justice has to be done dispassionately in accordance, with the constitutional attitudes whether it is a murderer or a smuggler who asks for it. Law cannot demand its pound of flesh. 11. At one stage we were inclined to decide the main question argued by the petitioners without considering the rival contentions as to the burden of proof. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to onus, no hard and fast rule of universal application in all situations, can be deduced from the decided cases In some decisions such as Saghir Ahmedv. State of Uttar Pradesh [1955]1SCR707 and Khyerbari Tea Co. v. State of Assam and Ors. [1964]5SCR975 it was laid down by this Court that if ,the writ petitioner succeeds in showing that the impugned law ex facie abridges or transgresses the rights coming under any of the sub-clause of Clause (1) of Article 19, the onus shifts on the respondent State to show that the legislation comes within the permissible limits imposed by any of the Clauses (2) to (6) as may be applicable to the case, and, also to place material before ,the court in support of that contention. If the State does nothing in that respect, it is not for the petitioner to prove negatively that it is not covered by any of the permissive clauses. A contrary trend, however, is discernible in the recent decisions of this Court, which start with the initial presumption in favour of the constitutionality of the statute and throw the burden of rebutting that presumption on the party who challenges its constitutionality on the ground of Art 19. As an instance of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionality of a statute and the onus to prove its invalidity lies on the party which assails the same. In the case of Mohd. Hanif Quareshi v. The State of Bihar [1959]1SCR629 , while adverting to this aspect Das, C J., as he then was, speaking for the Court observed as follows: The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The Courts, it is accepted, must presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. As we have said at the outset, these decisions have been discussed in the majority and minority judgments in Bachan Singh. 14. The decision of a Bench of seven Judges on which Shri Jethmalani has placed strong reliance is the one reported in Madhu Limaye. The question which arose for consideration in that case was whether the provisions of Section 144 and Chapter VIII of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Anita Pan. It may bear repetition to say that according to the learned Chief Justice, "there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles" and that, "it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds." The concluding words of the second of these two principles show that the said principle is limited in its application to cases arising under Article 14. The question of discrimination arises under Article 14 and not under Article 19 of the Constitution. Any case, even a locus classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of the decision which is cited as a precedent Human mind, trained even in the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in matters of this nature, the petitioner has to plead and prove that there are others who are situated similarly as him and that he is singled out and subjected to unfavourable treatment. As observed by Shah. J. in Western U.P. Electric Power and Supply Co. Ltd. v. State of U.P. [1969]3SCR865 : Article 14 of the Constitution ensures equality among equals : its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation, to the object sought to be achieved by the law. Whether there are other persons who are situated similarly as the petitioner is a question of fact. And whether the petitioner is subjected to hostile discrimination is also a question of fact. That is why the burden to establish the existence of these facts rests on the petitioner. To cast the burden of proof in such cases on the State is really to ask it to prove the negative that no other persons are situated sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is undoubtedly a presumption in favour of the constitutionality of a legislation. But when the enactment on the face of it is found to violate a fundamental right guaranteed under Article 19(1)(g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in Clause (6) of the article, If the respondents do not place any material before the Court to establish that the legislation comes within the permissible limits of Clause (6), it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community. (Page 726) 19. When the enactment on the face of it is in violation of a fundamental right guaranteed by Article 19, the petitioner is absolved even of that modicum of an obligation to show that a right guaranteed to him by Article 19 is violated. When the face of the law is not so clear, the petitioner does have to discharge the obligation of proving the fact of deprivation. But, that only and nothing more. 20. A similar question arose in Khyerbari Tea Co. Ltd. v. The State of Assam, where the Assam Taxation (on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amental right under Article 19(1) is proved, the State must justify its case under Clause (6) which is in the nature of an exception to the main provisions contained in Article 19(1). The position with regard to the onus would be the same in dealing with the law passed under Article 304(b). In fact, in the case of such a law, the position is some what stronger in favour of the citizen, because the very fact that a law is passed under Article 304(b) means clearly that it purports to restrict the freedom of trade. That being so, we think that as soon as it is shown that the Act invades the right of freedom of trade, it is necessary to enquire whether the State has proved that the restrictions imposed by way of taxation are reasonable and in the public interest within the meaning of Article 304(b). This enquiry would be of a similar character in regard to Clause (6) of Article 19". (pp 1003-4). (emphasis supplied). 21. The observations made by Gajendragadkar J., in regard to the position arising under Article 304(b) are apposite to cases under article 21. Article 304(b) provides that, notwithstanding anything in article 301 or article 303, the Legislature of a State may by law & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urden of proving that the procedure established by law for such deprivation is just, fair and reasonable lies heavily upon the State. 23. This discussion will be incomplete without a close examination of the decisions of this Court in B.Banerjeev. Anita Pan and Pathummav. State of Kerala, which have been referred to by Sarkaria, J., in Bachan Singh as evidencing a "contrary trend" according to which, even in regard to cases under Article 19, there is an initial presumption in favour of the constitutionality of the statute and the burden of rebutting that presumption lies on the person who asserts that the statute is unconstitutional. In B. Banerjee, a three-Judge Bench of this Court had to consider the question whether Sub-section (3A) which was introduced in Section 13 of the West Bengal Premises Tenancy Act, 1956 was violative of Article 19(1)(f) of the Constitution. By the newly introduced sub-section, the transferee of a property cannot file an eviction suit against his tenant for a period of three years from the date of transfer, on the grounds mentioned in Clauses (f) and (ff) of Section 13(1) of the Act. We have already extracted the relevant passage from the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ali, J., who spoke four out of the seven learned Judges, refers at the outset of the judgment to the "approach which a Court has to make and the principles by which it has to be guided in such matters". After stating that the Courts must interpret the Constitution : against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of the society, the increasing needs of the nation, the burning problems of the day and the complex issues facing the people which the legislature in its wisdom, through beneficial legislation, seeks to solve the learned Judge observes that since that the legislature is in the best position to understand and appreciate the needs of the people, the Courts have recognised that there , is "always" a presumption in favour of constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same. In support of this proposition, the learned Judge relied upon the decision of this Court in Mohd Hanif Quareshi v. The State of Bihar, in which Das, C.J., restated the two propositions which were enunciated in Ram Krishna Dalmia. 25. We find it d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three States violated the provisions of Article 25(1) of the Constitution. After rejecting that contention also, the Court took up for consideration the argument of the petitioners as regards "the denial of the equal protection of the law" to them. The petitioners' argument was that the impugned Acts prejudicially affected only the Muslim Kasais who kill cattle but not others who kill goats and sheep and therefore those Acts were violative of Article 14 of the Constitution. It is while dealing with this contention that the learned Chief Justice made observations which have been extracted by Fazal Ali, J. The observations made by the learned Chief Justice regarding the presumption of constitutionality and the burden being upon the person who attacks it are specifically made in the context of Article 14 as in Ram Krishna Dalima. We are therefore of the opinion that the principles stated by Fazal Ali, J. on the question of burden of proof in Pathumma may apply to cases arising under Article 14 but not to those arising under Articles 19 and 21 of the Constitution. In fact, in Laxmi Khandsari v. State of U.P. [1981]3SCR92 Fazal Ali, J., sitting with Kaushal, J., said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Contention was that the CrPC is a pre Constitution Law and therefore the State must justify the constitutionality of that law. That argument was rejected with the observation that "we cannot start with the presumption that a pre Constitution law is unconstitutional therefore the burden lies upon the State to establish its validity". The specific observation on the question of burden to the effect that the burden lies on those who challenge the constitutionality of a law, is also made expressly in regard to the provisions of Article 13(1) of the Constitution which provides that the laws which were in force before the commencement of the Constitution shall, in so far as they are inconsistent with the provisions of Part III, be void to the extent of such inconsistency. Shri Jethmalani is right that Madhu Limaye was not noticed in Bachan Singh, but we are unable to accept his contention that the decision is an authority for the proposition that the same rule of burden of proof must apply to all constitutional challenges, whether under Article 14, 19 or 21 of the Constitution, 29. We must hark back to Bachan Singh with which we began the discussion of the question as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners. The State must establish that the procedure prescribed by Section 354(5) of the Code for executing the death sentence is just, fair and reasonable. That burden includes the obligation to prove that the said procedure is not harsh, cruel or degrading. 31. Has the State discharged this heavy onus ? We have already set out the grounds on which the petitioners challenge the constitutionality of Section 354(5) of the CrPC which provides that "When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead",. Stated briefly, the contention of the petitioners is that Section 354(5) of the Code is bad because : 1. It is impermissible to take human life even under the decree of a Court since it is inhuman to take life under any circumstances ; 2. By reason of the provision contained in Article 21, it is impermissible to cause pain or suffering of any kind whatsoever in the execution of any sentence, much more while executing a death sentence; 3. The method of hanging prescribed by Section 354(5) for executing the death sentence is barbarous, inhuman and degrading; and 4. It is the constitutional obligation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensions were added to these arguments by the other learned Counsel. For example, Shri Salman Khurshid advocated that instead of putting out life for ever by executing the death sentence, persons sentenced to death should be deprived of their eye sight by blinding them so that, if and when they are reformed, they could be given back their sight by transplantation or by whatever method medicine may discover for restoring the eye sight. In the meanwhile, says counsel, justice shall have been done. 35. First, as to Shri Jethmalani's argument that we should leave to the legislative wisdom the question as to how best the death Sentence should be executed and that we should not project our subjective views into the decision of that question. We find it impossible to accept this argument. Matters of policy are certainly for the legislature to consider and therefore, by What mode or method the death sentence should be executed, is for the legislature to decide. As stated in Grega v. Georgia 49 L.Ed. 859, in a democratic society legislatures, not Courts, are constituted to respond to the moral values of the people. But the function of the legislature ends with providing what it consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction or shooting or guillotine and the like. Nor can we direct, as canvassed by Shri Khurshid, that the petitioners be temporarily blinded. That would be legislating. To pronounce upon the constitutionality of a law is not legislating, even if such pronouncement involves the consideration of the evolving standards of the society. 'Cruelty' and 'torture' are not static concepts. That is why, the chopping off of limbs which was not considered cruel centuries ago or is not considered cruel in some other parts of the world to-day, is impossible to conceive as a punishment by applying the contemporary standards of the Indian society. What might not have been regarded as degrading or inhuman in days by gone may be revolting to the new sensitivities which emerge as civilization advances. The impact and influence of the awareness of such sensitivities on the decision of the law's validity is an inseparable constituent of the judicial function. 36. This Court is not a third Chamber of the legislature. It has no such extra-territorial ambitions and it does not aspire to do the job of out-riders', to use an expression Lord Devlin. It is simply the highest Court of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere were also other untoward occurrences : Occasionally, a man might be given too short a drop and die slowly of strangulation, or too long a drop and be decapitated. A Committee was therefore appointed in U.K. in 1886 to report on the best way of ensuring "that all executions may be carried out in a becoming manner without risk of failure or miscarriage in any respect". This Committee made recommendations about the length of drop, improvements in the apparatus and preliminary tests and precautions which were designed to ensure speedy and painless death by dislocation of the vertebrae without decapitation. The improved system of hanging now in vogue came into being as a result of the recommendations of this Committee. The Home Office informed the Commission that "There is no record during the present century of any failure or mishap in connection with an execution, and, as now carried out, execution by hanging can be regarded as speedy and certain". 40. In paragraph 704 of the Report, the Commission says that it was "on the score of humanity" that execution by hanging was defended by witness after witness. The Prison Officers held the system of hangin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in France and Belgium; Hanging in England, Scotland, the Commonwealth countries and 10 States of U.S.A.; and lethal gas in 8 States of U.S.A. Shooting was in vogue in the State of Utah in America which allowed a choice between hanging and shooting. Besides, shooting was used in almost every country as a method of execution of persons sentenced to death for offences against the Military Code. 44. Rejecting Guillotine and shooting as methods for executing the death sentence for the reason that the former produces mutilation and the latter is inefficient, uncertain and unacceptable as a standard method of civil executions, the Commission examined the mechanics of hanging in paragraphs 711 to 716 of its Report. Paragraph 714, which is relevant for our purpose,, shows that a valuable memorandum was submitted to the Commission by the Coroner for the Northern District of London, at whose instance many post-mortem examinations following upon hanging were made by the late. Sir Bernard Spilsbury, a distinguished man of medicine who had figured as a witness in many important trials, and other highly qualified pathologists. The Coroner, Mr. Bentley Purchase, had access to the records of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed piece of mechanism while the electric chair depends for its efficacy upon the supply of electricity which is usually taken from commercial sources. In fact, in the United States, executions by electrocutions were occasionally delayed by failure of the power. The Commission recorded its conclusion by saying that neither electrocution nor lethal chamber had any advantage over hanging, in so far as the requirement of "certainty" is concerned. 48. In paragraph 732, the Commission deals with the third aspect, namely, "Decency" in execution of the death Sentence. It says that while considering this aspect it had kept two things in mind: Firstly, the obligation which obviously rests on every civilised State to conduct its judicial executions with decorum, and, secondly, that judicial execution should be performed without brutality; that it should avoid gross physical violence and should not mutilate or distort the body. The Commission records its conclusion by saying that in so far as the requirement of decency is concerned, the other two methods have an advantage over hanging though, all the three methods were now used with all the decency possible in the circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inclined to agree with this view and do not recommend any change in the present method of execution by judicial hanging in the present state of scientific knowledge. Paragraph 16 of the counter-affidavit says that the D.G.H.S. held to the same view as recently as in February 1982. 51. The 35th Report of the Law Commission of India on Capital Punishment, dated September 30, 1967 deals with "Execution of "Sentences" in Chapter XV. The Commission observes in paragraph 1097 of the Report that though hanging continued to be the most prevalent method for executing the death sentence, the course of events showed that it was being slowly abandoned. Thus, while, in 1930, 17 States in U.S.A. used to employ that method, only 6 retained it in 1967. Again, while it was In force in Yugoslavia before 1950, it was replaced by the firing squad in that year. 52. In paragraph 1098, the Law Commission deals briefly with the Report of the Royal Commission of England while in paragraph 1099, it discusses the Report of the Canadian Committee on the same subject. It would appear from what the Law Commission has stated in this paragraph that the Canadian Committee considered four differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o other method was shown to be more satisfactory. 54. In February 1978, Dr, Hira Singh, Prison Adviser to the National Institute of Social Defence, submitted his opinion to the Ministry of Home Affairs, Government of India, as follows : In ancient days the execution of death sentence was often attended by cruel forms of torture and suffering inflicted on the offender. With the passage of time, however, the methods of execution have undergone various changes. The old practices such as beheading, drawing, stoning, impaling, precipitation from a height, etc., have been gradually replaced in all civilised countries by new methods of hanging, electrocution, gas chamber and shooting. These changes have occurred mainly on the premise that death penalty means simply the deprivation of life and as such should be made as quicker and less painful as possible. The old methods were considered inhuman. According to the study on Capital Punishment published by the United Nations in 1962, hanging remains the most frequent method of execution in various countries including the United Kingdom and generally throughout the Commonwealth. In the United States it is no doubt losing ground in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Oto-rhino-Laryngology and the degree of M.D. in Forensic Medicine arid Toxicology. It appears that he has also done a three-year degree course of LL.B. from the Allahabad University., He is presently working as a Lecturer in the Department of Forensic Medicine of the Institute, in which capacity he is required to conduct Medico-legal autopsies. He claims that he has conducted approximately 1100 medico-legal autopsies uptill now. According to him, hanging is the best method for executing the death sentence since by that method, death ensues instantaneously due to a combination of shock, asphyxia and crushing of Spinal Medulla. He says that there are misconceived notions about judicial hanging due to improvised and faulty mechanism of the process involved in suicidal hangings and due to lack of knowledge of the anatomical structure of the neck and human body, Dr. Chandrakant describes the human anatomy and says that in hanging, whenever there is injury to Medulla, to Pons or Medulla oblongata, all the, three vital centers called as "Tripod of life" are affected which causes instantaneous death. Dr. Chandrakant has given a brief description of about 15 different methods wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul". The same paragraph mentions that hanging has generally been abandoned in the United States. According to the issue of 'Time' magazine dated January 24, 1983, only four States of America still prescribe hanging as a method for executing the death sentence. Paragraph 59 of U.N. publication says that "Hanging remains the most frequent method in use". It lists over 25 countries of the world in which the method of hanging is used for executing the death sentence. 60. In so far as the judicial exposition of this subject is concerned, attention may be drawn to the latest decision of this Court in Bachan Singh in which the majority said that under the successive Criminal Procedure Codes which have been in force in India for about 100 years, the sentence of death is to be carried out by the method of hanging. The founding fathers of the Constitution, some of whom were distinguished jurists (in the proper sense of that term), cannot be assumed to be ignorant of the provision contained in Section 354(5) of the Code. And, despite the fact that the death Sentence has to be carried out by the mode prescribed in that section, they recognised the existence and validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeded to this judgment, on a careful consideration of the diverse submissions made before us. 63. Dr. Ghatate, who began the arguments on behalf of the petitioners, contended that the method of hanging involves pain, degradation and suffering wherefore that method violates Article 21 and cannot be used for executing the death sentence. In support of this argument, he drew our attention to certain passages in the dissenting judgment of Bhagwati, J., in Bachan Singh. At page 285 of the Report, the learned Judge has extracted a passage from a decision of the California Supreme Court in which it is said that, "Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture". In the absence of citation, we are unable to trace the decision or to see the context in which the California Supreme Court made the particular observation. We do not know who these "Penologists and medical experts" are and where they have expressed agreed opinions attributed to them. It is not even clear whether the California Court was dealing with the validity of death p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er too. But evidence before us shows that the mechanics of the method of hanging has undergone significant improvement over the years and if the expression is not inapt in the context, hanging has been almost perfected into a science. The chances of a mishap are minimal now though, the chances of an accident can never be eliminated totally, If that could be done, the word "accident" will not appear in the dictionary of wise men. In regard to the improvements effected in the method of hanging, we will only draw attention to the findings of the Royal Commission and the opinion expressed by other experts to which we have already referred. 65. Finally, Dr. Ghatate relies upon an account given in 1927 by a Surgeon who witnessed a double execution, which has been extracted in the judgment of Bhagwati, J., at page 288 of the Report. It appears from the Surgeon's account that 'one of the supposed corpses' gave a gasp which the Surgeon was, very naturally, horrified to hear. Two bodies not completely dead were then raised to the scaffold again. In his account the Surgeon has stated that though dislocation of the neck is the ideal aimed at in hanging, that had proved r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese alternative methods "of execution which are canvassed by the learned Counsel and some of which are in vogue in some other parts of the world. If the method prescribed by Section 354(5) of the Code is violative of Article 21, the matter must rest there because, as contended by Dr. Ghatate himself, the Court cannot substitute any other method of execution for the method prescribed by law and which alone is permissible under the law. However, an understanding of the process involved in the competing methods used for executing the death sentence and their comparative assessment is not altogether pointless. If it can be demonstrated clearly that some other method has a real and definite advantage over the method of hanging, the question will naturally arise as to why the State does not adopt that method. An arbitrary rejection of a method proved to be simpler, quicker and more humane than hanging may not answer the constitutional prescription . 69. The Royal Commission mentions in paragraph 717 of its Report that during their visit to America, they inspected the electric chairs in the Sing Sing Prison, New York and the District of Columbia Jail, Washington, and that they recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in some of the States in America. The cover story, "An Eye for an eye", gives the following description of electrocution at page 12 of the issue : The chair is bolted to the floor near the back of a 12 ft. by 18ft. room. You sit on a seat of cracked rubber secured by rows of copper tacks. Your ankles are strapped into half-moon-shaped foot cuffs lined with canvas. A 2-in-wide greasy leather belt with 28 buckle holes and worn grooves where it has been pulled very tight many times is secured around your waist just above the hips. A cool metal cone encircles your head. You are now only moments away from death. But you still have a few seconds left. Time becomes stretched to the outermost limits. To your right you see the mahogany floor divider that separates four brown church-type pews from the rest of the room. They look odd in this beige Zen-like chamber. There is another door at the back through which the witnesses arrive and sit in the pews. You stare up at two groups of fluorescent lights on the ceiling. They are on. The paint on the ceiling is peeling. You fit in neat and snug. Behind the chair's back leg on your right is a cable wrapped in gray tape. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner for several eastern States, who officiated at 387 executions maintains that electrocution is painless. 73. Power seldom fails in countries like America, U.S.S.R., and Japan. Even then, the failure of electrical energy supplied by commercial undertakings has been considered in America as an impediment in the use of the electric chair. With frequent failures of electrical power in our country, the electric chair will become an instrument of torture. One can well imagine the consequences of the use of the electric chair in the city of Calcutta or, for the matter of that, in the capital City of Delhi. For technical reasons, even the Supreme Court complex is not spared from frequent load-shedding during working hours. Lawyers, litigants and Judges have now trained themselves to suffer the inconvenience arising from failure of electricity. But, it would be most unfair to expect a prisoner condemned to death to get into the electric chair twice or thrice, for the reason that the electric current failed during the process of electrocution. It is not our intention to blame anyone for the power crisis because it would seem that it is partly due to natural causes and is not man-made. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to the Commission, it seems to be now generally agreed that unconsciousness ensues very rapidly in the gas chamber method. 75. Clinton Duffy, warden of San Quentin Prison, California, says that the operation of the gas chamber execution includes "funnels, rubber gloves, graduates, towels soap, pliers, scissors, fuses and a mop : in addition, sodium cyanide eggs, sulphuric acid, distilled water, and ammonia. From his series of articles, San, Quentin Is My Home", Saturday Evening Post, March 25-May 13, 1950. This series was later published in book form as The San Quentin Story (New York): Doubleday, 1950. 76. Coming to the method of shooting by a firing squad, we have already extracted an-opinion which shows that there are chances of bungling in that method. But a more serious objection to which this method is open is that it is the favourite past-time of military regimes which trample upon human rights with impunity. They shoot their citizens for sport. Shooting is an uncivilised method of extinguishing life and it is enough to say in order to reject in that the particular method is most recklessly and want only used for liquidating opposition and smothering dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned electrocution ' and gas chamber methods may be applied as the patient's sense would have been dulled by the drug injection". This system certainly has the merit of naivete and novelty but, on the face of it, the system is impracticable and would appear to involve complications and torture to an uncommon degree. We may in this behalf draw attention to an article "The Death Penalty : Moral argument and capricious practice" by Andrew Rutherford, a senior Lecturer in Law at the Southampton University, which appeared in 'The Listener' of July 7, 1983, published by the British Broadcasting Corporation. In that article, the writer refers to an incident to the effect that in 1982 December, a prisoner was put to death in Texas by means of an injection of sodium pentothal . The incident led the American Medical Association to declare : "The use of a lethal injection as a means of terminating the life of a convict is not the practice of medicine". The writer proceeds to say that there is not likely to be any great enthusiasm for the method of electrocution as well, since in April 1983, it took three 30-seconds shots of 1,900 volts before a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that would unnecessarily sharpen the poignancy of the prisoner's apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. The system of hanging, as now used, avoids to the full extent "the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop. The system is consistent with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation of brutality of any kind. 83. At the moment of final impact when life becomes extinct, some physical pain would be implicit in the very process of the ebbing out of life. But, the act of hanging causes the least pain imaginable on account of the fact that death supervenes instantaneously. 'Imaginable', because in the very nature of? thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Garg said is directed at showing the invalidity of Section 302 of the Penal Code rather than the invalidity of Section 354(5) of the CrPC. We are unable to appreciate how it is unlawful, in the abstract and in the absolute, to execute a lawful order. If it is lawful to impose the sentence of death in appropriate cases, it would be lawful to execute that sentence in an appropriate manner. Article 21, undoubtedly, Has as much relevance on the passing of a sentence, as on the manner of executing it. therefore, a two-fold consideration has to be kept in mind in the area of sentencing. Substantively, the sentence has to meet the constitutional prescription contained, especially, in Articles 14 and 21. Procedurally, the method by which the sentence is required by law to be executed has to meet the mandate of Article 21. The mandate of Article 21 is not that the death sentence shall not be executed but that it shall not be executed in a cruel, barbarous or degrading manner. 87. If we were to accept the argument of Shri Garg, the imposition of death sentence would become an exercise in futility : pass the sentence of death if you may but, it shall not be executed in any manner, under any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishments concerned itself with unusual cruelty only, the emphasis being upon "unnecessary cruelty and pain". In Kemmler, death by electrocution was held not necessarily cruel. In O'Neil v. Vermont [1892] 144 U.S. 323 Justice Field, in his dissenting opinion, enlarged the concept of unusual punishment to cover penalties "which shock the sense of justice". In Trop v. Duties [1958] 356 U.S. 86 a sharply divided Court held that divestiture of citizenship was constitutionally forbidden. Chief Justice Warren, speaking for three Justices, observed that the content of the Eighth Amendment was not static and that it "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society". According to the learned Chief Justice, the Eighth Amendment whose "basic concept is nothing less than the dignity of man", ensures "the principle of civilized treatment". After the decision in Trop, the American Supreme Court has formulated a sophisticated definition of the Eighth Amendment clause in a series of important cases called the "18 Key cases". A resume of those cases can be found in 'Substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng as a mode of execution is not relentless in its severity. As Judges we ought not to assume that we are endowed with a divine insight into the needs of a society. On the contrary, we should heed the warning given by Justice Frankfurter : "As history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements [1949] 335 U.S. 538, American Sash & Door Co.'s case ". 94. For these reasons the challenge to the constitutionality of Section 354(5) of the CrPC fails and the writ petitions are dismissed. Orders whereby the executions of death sentence were stayed are hereby vacated except in W.P. (Crl.) No. 503 of 1983 which will be listed on 27th September, 1983, for being heard on merits. SLP (Crl.) No. 196 of 1983 is dismissed. Sabyasachi Mukherjee, J. 95. I respectfully agree with the conclusions of my learned brother, the Chief Justice. I would like, however, to state that in the judgment, my learned brother has observed: therefore, as soon as it is shown that the Act invades a right guaranteed by Article 21, it is necessary to enquire whether the State has proved that the person has been depri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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