“Liberty has, therefore, to be limited in order to be effectively possessed.”- Justice Patanjali Sastri

The question of the constitutional validity of Death Penalty given under Section 302 of Indian Penal Code, came before the Supreme Court in the case of ‘Bachan Singh v. State of Punjab (1980)’.

Read also– The Debate on Death Penalty- Abolitionists and Retentionists

The Facts of the Case

Bachan Singh, 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, then filed a special leave petition to Supreme Court which was heard by division bench consisting of Justice Sarkaria and Justice Kailasam.

The only question for consideration in the appeal was, whether the facts found by the courts below would be “special reasons” for awarding, the death sentence as required under Section 354(3) of the CrPC, 1973.

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 CrPC, 1973, Sarkaria, J., in agreement with Kailasam, J., directed the records of the case to be submitted to the Hon’ble the Chief Justice, for constituting a large Bench to resolve the doubts, difficulties and inconsistencies.

Petitions from other death penalties convicts

In the meanwhile, several persons convicted of murders and sentenced to death, filed writ petitions under Article 32 of the Constitution directly challenging the constitutional validity of the death penalty provided in Section 302 of the Indian Penal Code for the offence of murder, and the sentencing procedure provided in Section 354(3) of the CrPC, 1974.

Reconsideration of Jagmohan Case

In the case before division bench, the petitioner’s counsel had placed reliance on Rajendra Prasad v. State of U. P. (1979) 3 SCR 646 which, according to the counsel, was on facts very similar, if not identical, to that case.

Kailasam, J. was of opinion that the majority view in Rajendra Prasad taken by V.R. Krishna Iyer, J., who spoke for himself and D.A. Desai, J., was contrary to the judgment of the Constitution Bench in Jagmohan Singh v. State of Uttar Pradesh (1972).

In Rajendra Prasad case, Justice Krishna Iyer had adopted the human right approach while interpreting the law on death penalty. For instance, In Rajendra Prasad, the plurality observed:

“It is constitutionally permissible to swing a criminal out of corporal 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, according to Kailasam, J., was 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”.

In Rajendra Prasad, the majority has further opined:

“The only correct approach is to read into Section 302, I. P. C. and Section 354(3), Criminal P. C., the human rights and humane trends in the Constitution. So examined, the right to life and the fundamental freedoms is deprived when he is hanged to death, his dignity is defiled when his neck is noosed and strangled.”

Against the above, Kailasam, J. commented: “The only change after the Constitution Bench delivered its judgment is the introduction of Section 354(3) which requires special reasons to be given if the court is to award the death sentence. If without the restriction of stating sufficient reasons death sentence could be constitutionally awarded under the I. P. C. and Criminal P. C. as it stood before the amendment, it is difficult to perceive how by requiring special reasons to be given the amended section would be unconstitutional unless the “sentencing sector is made restrictive and least vagarious”.”

Before the larger bench, the Petitioner’s counsel R.K. Garg emphasised that Jagmohan’s case needs reconsideration by a larger Bench if not by the Full Court. Reconsideration of Jagmohan, according to the Counsel, was necessitated because of subsequent events and changes in law-

Changes Circumstances

• Firstly, it was pointed out that when Jagmohan was decided in 1972, the then extant CrPC, 1898 left the choice between death and life imprisonment as punishment for murder entirely to the discretion of the Court. This position has since undergone a complete change and under Section 354(3) of the CrPC, 1973, death sentence has ceased to be the normal penalty for murder.

• Secondly, it was argued, the seven-Judge decision of Supreme Court in Maneka Gandhi v. Union of India has given a new interpretative dimension of the provisions of Articles 21, 19 and 14 and their inter-relationship, and according to this new interpretation every law of punitive detention both in its procedural and substantive aspects must pass the test of all the three Articles.

• Thirdly, it is submitted that India has since acceded to the International Covenant of Civil and Political Rights adopted by the General Assembly of the United Nations, which came into force on December 16, 1976. By virtue of this Covenant, India and other countries who are a party to it, stand committed to a policy for abolition of the ‘death penalty’.

The questions for consideration before the court

The principal questions that fall to be considered in this case were:

(i) Whether death penalty provided for the offence of murder in Section 302, Penal Code is unconstitutional.

(ii) If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Sec, 354(3) of the CrPC, 1973 is unconstitutional on the ground that it invests the Court with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life.

[354(3) -When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.]

Ist Question- Death Penalty is unconstitutional or constitutional?

Counsel’s submission

The first contention of Petitioner’s counsel R.K Garg was that the provision of death penalty in Section 302, Penal Code offends Article 19 of the Constitution. It was submitted that the right to live is basic to the enjoyment of all the six freedoms guaranteed in Clauses (a) to (e) and (g) of Article 19(1) of the Constitution and death penalty puts an end to all these freedoms;

that since death penalty serves no social purpose and its value as a deterrent remains unproven and it defiles the dignity of the individual so solemnly vouchsafed in the Preamble of the Constitution, its imposition must be regarded as an ‘unreasonable restriction’ amounting to total prohibition, on the six freedoms guaranteed in Article 19(1).

Court’s answer

The six fundamental freedoms guaranteed under Article 19(1) are not absolute rights.

Firstly, they are subject to inherent restraints stemming from the reciprocal obligation of one member of a civil society to so use his rights as not to infringe or injure similar rights of another. This is on the principle sic uteri tuo ut alienum non laedas.

Secondly, under Cls. (2) to (6) these rights have been expressly made subject to the power of the State to impose reasonable restrictions, which may even extend to prohibition, on the exercise of those rights.

Whether it violates Article 19?

The court first considered the question whether Article 19 is at all applicable for judging the validity of the impugned provision in Section 302, Penal Code.

Answering that question, the court said that argument that the provisions of the Penal Code, prescribing death sentence as an alternative penalty for murder have to be tested on the ground of Article 19, appears to proceed on the fallacy that the freedoms guaranteed by Article 19(1) are absolute freedoms and they cannot be curtailed by law imposing reasonable restrictions, which may amount to total prohibition.

The court referred the decision of ‘A.K.Gopalan v. State of Madras (1950)’ where justice Patanjali Shastri opined that lawful deprivation of personal liberty on conviction and sentence for committing a crime, or by a lawful order of preventive detention is “not within the purview of Article 19 at all, but is dealt with by the succeeding Articles 20 and 21.”

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 Cls. (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.”

After referring other cases also, the court held that even if a law does not, in its pith and substance, deal with any of the fundamental rights conferred by Article 19(1), if the direct and inevitable effect of the law is such as to abridge or abrogate any of those rights, Article 19(1) shall have been attracted. It would then become necessary to test the validity of even a penal law on the touchstone of that Article.

The court further opined that the deprivation of freedom consequent upon an order of conviction and sentence is not a direct and inevitable consequence of the penal law but is merely incidental to the order of conviction and sentence which may or may not come into play, that is to say, which may or may not be passed. Considering therefore the test formulated by the court in its dual aspect, the court concluded that Section 302 of the Penal Code does not have to stand the test of Article 19(1) of the Constitution.

Supreme Court on Death Penalty

In this case, the Apex court considered the question in great detail. We can sum up the court’s observations and answers to the questions which were posed in this case, as follows-

• The question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views.

• 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 petitioner’s argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose.

• If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people’s representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world,

if the framers of the Indian Constitution were fully aware of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent Reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it by the CrPC, 1973,

it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302, Penal Code is unreasonable and not in the public interest. The court therefore, concluded that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19.

Whether it violates Article 21?

The court answered that,

• “Article 21 clearly brings out the implication, that the Founding Fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. There are several other indications, also, in the Constitution which show that the Constitution makers were fully cognizant of the existence of death penalty for murder and certain other offences in the Indian Penal Code.

• Entries 1 and 2 in List in – Concurrent List – of the Seventh Schedule, specifically refer to the Indian Penal Code and the CrPC as in force at the commencement of the Constitution. Article 72(1)(c) specifically invests the President with power to suspend, remit as commute the sentence of any person convicted of any offence, and also “in all cases where the sentence is a sentence of death”.

Likewise, under Article 161, the Governor of a State has been given power to suspend, remit or commute, inter alia, the sentence of death of any person convicted of murder or other capital offence relating to a matter to which the executive power of the State extends.

Article 134, in terms, gives a right of appeal to the Supreme Court to a person who, on appeal, is sentenced to death by the High Court, after reversal of his acquittal by the trial Court Under the successive Criminal Procedure Codes which have been in force for about 100 years, a sentence of death is to be carried out by hanging.

In view of the aforesaid constitutional postulates, by no stretch of imagination can it be said that death penalty under Section 302, Penal Code, either per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment.

By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile “the dignity of the individual” within the contemplation of the Preamble to the Constitution.

On parity of reasoning, it cannot be said that death penalty for the offence of murder violates the basic structure of the Constitution.”

Whether this Court can lay down standards or norms restricting the area of the imposition of death penalty to a narrow category of murders?

Answering the issue, the court said that If by “laying down standards”, it is meant that ‘murder’ should be categorised beforehand according to the degree 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.

The court further said,

• Criminal cases do not fall into set-behaviouristic patterns. Even within a single-category offence there are Infinite, unpredictable and unforeseeable variations. No two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. Each case presents its own distinctive features, its peculiar combinations of events and its unique configuration of facts.

• A standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single-offence category ceases to be Judicial. It tends to sacrifice justice at the altar of blind uniformity.

• 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 is encompassed 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, warily did not do. The court must leave unto the legislature, the things that are Legislature’s.

• The perception of ‘community’ standards or ethics may vary from Judge to Judge. In this sensitive, highly controversial area of death penalty, with all its complexity, vast implications and manifold ramifications, even all the Judges sitting cloistered in this Court and acting unanimously, cannot assume the role which properly belongs to the chosen representatives of the people in Parliament, particularly when Judges have no divining rod to divine accurately the will of the people.

• Over-standardisation of the sentencing process tends to defeat its very purpose, and may actually produce opposite results. It is not impossible to lay down broad guidelines as distinguished from iron cased standards, which will minimise the risk of arbitrary imposition of death penalty for murder and some other offences under the Penal Code.

• In Jagmohan (supra), the Court had held that this sentencing discretion is to be exercised judicially on well-recognised principles, after balancing all the aggravating and mitigating circumstances of the crime-

(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 offender also.

Pre-planned, calculated, cold blooded murder has always been regarded as one of an aggravated kind. In Jagmohan, it was reiterated by this Court that if a murder is “diabolically conceived and cruelly executed”, it would justify the imposition of the death penalty on the murderer.

The weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence.

• Making the choice of punishment or for ascertaining the existence or absence of “special reasons” in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because ‘style is the ‘man’.

• In 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.

• Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency – a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter.

It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception.

A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

Reference

Bachan Singh v. UOI (1980)