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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 ..... ovides 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 in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionally 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) and (b) at page 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by a surgeon who witnesses a double execution and records his con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 executing the death sentence. It is urged on their behalf by Shri R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We thought that whether the burden lies on the petitioners to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 contrary trend, Sarkaria, J., has cited, the judgment of Kri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidity 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 the CrPC could be said to be in the interests o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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 strict discipline of law, is not averse to taking the easy course of relying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 similarly as the petitioner and that, the treatment meted out to the petitioner is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Goods carried by road or on Inland Waterways) Act, 1961 was challenged on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 impose such reasonable restrictions on the freedom of trade, commerce or intercour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 judgment of Krishna Iyer, J., who spoke for the Court in that case. The learned Judge said that presumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 difficult to read the observations made by Fazal Ali, J., on behalf of the four learned Judges as an authority on the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 It is no doubt well-established that when a citizen complains of the violation of a fundamental right conferred by Article 19, the onus is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervation 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 regards the burden of proof. Sarkaria, J. observed in the majority judgment that with regard to the onus, no hard and fast rule of universal application in all situations could be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the State to provide for humane and dignified, method for executing the death sentence, which does not involve torture of any kind. If the method prescribed by Section 354(5) does not meet this requirement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 considers to be the best method of executing the death sentence. Where the function of the legislature ends, the function of the judiciary begins. It is for the Courts to decide upon the constitutionality of the metho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 law and justice in a country governed by a written Constitution, which, it is its primary and exclusive function to interpret. The care which we must take is that while interpreting the laws and the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hanging to be as humane as circumstances permit, while the Prison Medical Officers said We cannot conceive any other method which could be more humane, efficient of expeditious than judicial hanging The Prison Chaplains called it simple, humane and expeditious . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ethod 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 such post-mortem examinations. The memorandum showed that the effective cause of death in 58 executions at two prisons was . fracture dislocation of cervical vertebrae with laceration or crushing of the cord and that any such dislocation causes immediate unconsciousness, there being no chance of later reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 circumstances. 49. The Commission records its final conclusion in paragraph 734 of the Report by saying that after weighing all the factors carefully and bearing in mind that the onus of proof was on the advocates of change, it could not recommend that either electrocution or gas chamber should replace hanging as a method of judicial execution : In the matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital 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 different methods of execution, namely, hanging, electrocution, gas-chamber and lethal injection. The last mentioned method was believed to ensure instantaneous and painless death, but it could only be accomplished by an intravenous injection requiring skill and the Canadian Committee considered that it would not be reasonable to expect a medical doctor to per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of electrocution and lethal gas. The modern method of hanging differs from its traditional form as it involves an abrupt and immediate severance of the cervical vertebrae. The whole process is carried out with care and skill so as to avoid any bungling and untoward incident. The State Jail Manuals contain elaborate instructions on the arrangement for executio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims 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 which have been followed at one time or the other for executing the death sentence. 56. In a book called Hanging through the ages (History of Capital Punishment) by George R. Scott (Torchstream Books, London), the entire history of the technique of hanging has been traced. The author says at page 211 that the introduction of an improved technique of hanging h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of that sentence. The majority accepted the proposition that by reason of the provision contained in Article 21, no person can be deprived of his life or personal liberty except in accordance with fair, just and reasonable procedure established by law. Applying that postulate, it observed that the framers of the Constitution did not consider that either the death sentence or the traditional, mode of its execution prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 penalty or with the methods of executing that penalty and, if the latter, whether it has condemned every method of the execution and not the method of hanging only. The purport of the passage seems to indicate that the question under inquiry was that death sentence is a 'cruel unusual punishment'. As we have shown, the expert evidence before the Royal Commission of U.K. was quite to the contrary, especially in regard to the improved tech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 rather an exception in his own post-mortem findings which showed that in the majority of instances, the cause of death was strangulation and asphyxia. Relying on this account Bhagwati, J., concludes: These passages clearly establish beyond doubt that the execution of sentence of death by hanging does involve intense physical pain and suffering, though it may be regarded by some as more humane than electrocution or application of lethal gas. With great respect, our difficulty is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 received evidence about the use of the electric chair in other States. The Commission has given the following account of the method of electrocution based primarily on the information obtained by them in Washington : The execution takes place at 10 a.m. At midnight on the preceding night the condemned man is taken from the condemned cell block to a cell adjoining the electrocution chamber. About 5.30 a.m., the top of his head and the calf of one leg are shaved to afford direct contact with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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. It will sluice the electrical current to three other wires : two going to each of your feet, and the third to the cone on top of your head. The room is very quiet. During your brief walk here, you looked over shoulder and saw early morning light creeping over the Berkshire Hills, Then into this silent tomb. The air vent above your head in the ceiling begins to hum. This means the executioner has turned on the fan to suck up the smell of burning flesh. There is little time left. On your righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. But facts are facts and facts must be faced. 74. Execution by lethal gas is discussed by the Royal Commission in paragraphs 719 to 722 of its Report. The Commission says in paragraph 719 that they did not inspect any lethal gas chamber during their visit to America, but they were supplied with written evidence about execution by lethal gas. They also had the advantage of hearing evidence from one Mr. Philip Allen, the then Deputy Chairman of the Prison Commission and of receiving a report fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 dissent in countries which do not respect the rule of law. Lastly, murders by shooting are becoming a serious menace to law and order in our country. Shooting by the State in order to kill for executing the order of a Court of law will unwittingly confer respectability on the 'shoot to kill tactics which are alarmingly growing in proportion. 77. What remains now to consider is the system of lethal injection. The Royal Commission has discussed that method in paragraphs 735 to 749 of its Report Lethal inject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, 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 man in Alabama was pronounced dead. 79. It is clear from this narrative that neither electrocution, nor lethal gas, nor shooting, nor even the lethal injection has any distinct or demonstrable advantage over the system of hanging. therefore, it is impossible to record the conclusion with any degree of certainty that the method of hanging should be replaced by any of these methods. 80. But, for due compliance with the mandate of Article 21, it is not enough to find that none of the other methods of execution has a real advantage ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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? things, there are no survivors who can give first-hand evidence of the pain involved in the execution of a death sentence. Dead men tell no tales. The question as regards the factor of pain has therefore to be judged on the basis of scientific investigations and by applying the test of reason. The conclusion that the system of hanging is as painless as is possible in the circumstances, that it causes no greater pain than any other known method of executing the death sentence and that it involves no barbarity, torture or degradation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration 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 circumstances. A Constitution so carefully conceived as ours cannot be construed to produce such a startling result. Indeed, the argument, if carried to its logical conclusion will make it impossible to execute any sentence whatsoever, particularly of imprisonment, because every sentence of imprisonment necessarily involves pain and suffering to a lesser or greater degree. Painless punishment is a contradiction in terms. 88. The constraints of Bachan Singh deserve to be preserved but that means that it is only a rare de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree 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 'Substantive Criminal Law' by Prof. M. Cherif Bassiouni (Ed. 1978, pp. 44-45). It shows that even a second electrocution after the failure of the first attempt, provided it is not an intentional effort to inflict unnecessary suffering, was held not violative of the Eighth Amendment Louisiana v. Resweber [1949] 329 U.S. 459. It was observed in that case that: the cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. No one can deny that so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutions 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 deprived of his life or persona] liberty according to procedure established by law, that is to say, by a procedure which is just, fair and reasonable. I respectfully agree that as soon as it is shown that a Statute or Act in question invades a right guaranteed by Article 21, it is necessary to enquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law. I, however, respectfully at present would not express my opinion whether in all such cases, the State has a further initial burden to prove that the procedure establ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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