CHAPTER III

CONSTITUTIONAL VALIDITY OF DEATH PENALTY

I. Introduction

IL Whether death penalty serves any penological purpose : Views of Legal

Luminaries

Justice Sarkaria

Justice Palekar

Justice Krishna Iyer

Justice Chinnappa Reddy

III. Dircretionary Death Sentence

Pre Maneka Period (Jagmohan Singh Case)

Post Monika Period (Rajendra Prasad Bachan Singh)

IV. Mandatory Death Sentence

Mithu Vs. State of Punjab

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 CHAPTER III

CONSTITUTIONAL VALIDITY OF DEATH PENALTY

I. INTRODUCTION
The legal system of many nations of the world contain a written constitution
which guarantees fundamental rights against the excesses and the apathy of the
legislature and the executive. Such constitution after recognize the act to life, equal
protection of law and due process of law. They prohibit cruel and unusual
punishment and degrading treatment or punishment. The constitutional validity of
capital punishment is an issue which has troubled the constitutional courts of the
world. It is a question the answer to which provide a litmus test of the spirit in which
a supreme court perform its duties. The cases in which the legality of the death
penalty has been impugned raise for judicial review a state practice of dubious moral
propriety one impinging on the fundamental right to life of the weakest members of
society an issue in which the standards of liberals are in conflict with the standards of
conservatives and often with those of the man in the street.

Indian constitution is an amalgam of many constitutions, i.e. the constitution

of America, Britain and Japan. It should not surprise anyone, therefore, that the main
provisions of the constitution of India guaranteeing the right to life has been lifted
from the America n and the Japanese constitution. It may be added here that what we
have borrowed in the form or style of expression and not the right itself. The right to
life is not the something that constitutions create or even confer. The constitution
only recongises this inalienable and indispensable right.

It is an indisputable fact that there is nothing in the constitution of India which

expressly holds capital punishment as unconstitutional, though there are provisions
that suggests that the constitutional scheme accepts the possibility of capital
punishment. However, there are several provisions in the constitution such as the
preamble, the Fundamental Rights and directive principle which can be relied upon
for challenging the constitutionality of capital punishment. It is clear that only a
limited category of serious offender visited with capital punishment. The crux of the
whole issue is that each one of us has an inherent right to life and none of us can

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divest any one from this precious right, and if he does so, it has to be at the cost of his
own life.

II) WHETHER DEATH PENALTY SERVES ANY

PENOLOGICAL PURPOSE : VIEWS OF LEGAL
LUMINARIES
The dispute between the proponents of the exclusive deterrent effect of capital
punishment and those who deny any such effect is not one in which the judiciary is
keen to participate or take sides in the course of constitutional adjudication. Justice
Sarkaria has emphasized, for the Indian supreme Court that:

The question whether or not death penalty serves any

penological purpose, is a difficult complex and intractable
issue. It has evoked strong, divergent views. For the
purpose of testing the constitutionality of the impugned
provision as to death penalty. It is not necessary for us to
express any categorical, one way, or the other, as to which
of these antithetical views, held by the abolitionist and
Retentionist, is correct. It is sufficient to say that the very
fact that persons of reason, learning and light are rationally
and deeply divided in their opinion on this issue is a
grounds among other, for rejecting the petitioners
arguments that retention of the death penalty in the
impugned provisions is totally devoid of reason and
purpose.1

If the deterrent effect of the death penalty has not been challenged by the
courts, the comment of Justice Paliker in the Indian S upreme Court that there is large
volume of evidence compiled in the west by kindly social reformers and research
workers to confound those who want to retain the capital punishment, is unique in
appearing to challenge the bonafide of those who have denied such a deterrent effect.

1 Bachan Singh Vs. State of Punjab 1980 2 SCC 685,729.

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 The Honble Mr. Justice Krishna Iyer has challenged the deterrent effect
claimed for capital punishment, According to him

The solution for explosive tension and returns to

tranquility (us not the death penalty but) curing the inner
man through technology, elimination of social provocation
and economic, injustice and of addiction to inebriants
which dement the consumer2

Among the other Indian judges, only Justice Chinnapa Reddy has expressed
any degree of support for Justice Krishna Iyers approach. He has accepted that

The most reasonable conclusion is that there is no positive

indication that the death penalty has been deterrent. In other
words, the efficacy of the death penalty as a deterrent is
unproven.3 Nor have the vast majority of the judges
exercising judicial review been prepared to accept that
retribution is a for bidden penological objective, or that it is
a penal purpose to which capital punishment has nothing
unique to contribute4.

Justice Chinnapa Reddy (with whom Krishna Iyer J agreed) asserted that The
retributive theory is incongruous is an era of enlightenment.5 The incapacitative
function of capital punishment, its indisputably unique ability to ensure that accused
does not repeat the capital offence (or any other offence) who has received rather less
judicial attention than the rationales of deterrence and retribution.

The Indian Supreme Court has appreciated the difficulty of predicting

dangerousness, and the error of assuming that a man convicted a accused of capital
crime is prone to future criminal acts. It was for that reason that the court held it
unconstitutional under Article 21 of the Indian constitution (and under other Articles)
to subject a condemned man to solitary confinement, and to keep in chains a prisoner

2 Dalbir Singh & others Vs State of Punjab Supra at p 1066

3 Bishnu deo Shaw Vs west Bengal 1979 3 SCR 355, 365
4 Gregg Vs Georgia, Bachan Singh Vs State of Punjab
5 Bishnu Deo Shaw Vs West Bengal Supra at p 360

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on remand unless, is either ease, there was strong evidence of violent propensities.
The reformation of the individual offender is usually regarded as an important
function of punishment. But it can have no application where the death penalty is
exacted. In India, Justice Chinnapa Reddy has, consequently, found a ............
grievous injury which the death penalty inflicts on the administration of Criminal
justice6. It rejects reformations and rehabilitation of offenders as among the most
important objectives of Criminal justice 1. For similar reasons Justice Krishna Iyer has
argued that death penalty is permissible only where reformation within a reasonable
range is impossible.7

Because due process of law and the rule of do not express support for any
particular penal theory, Supreme Court have denied that the death penalty is per se
unconstitutional.

The punishment of a Criminal can be looked upon as a retributive or

retaliatory social reaction to the evil he has caused. Capital punishment, wrote
Montesquieu, represent is kind of retaliation by which society withdraws protection
form a citizen who has sought to destroy another citizen. This punishment is derived
from the nature of the crime, drawn from the fund of reason and the Springs of Good
and Evil. A citizen deserves death, when he has violated the security of another and
has gone so far as to kill him or attempt to kill him. The death penalty this employed
may be described as the medicine for a social malady.

In India, Justice Krishna Iyer has not denied the per se constitutionality of
capital punishment. Indeed, he has emphasized that ........... to sublimate Savagely in
individual or society is a long experiment in spiritual chemistry where moral values,
Socio economic conditions and legislative judgment have a role. Judicial Activism
can only be a sign post, a weather vane, no more8. But the extent to which Justice
Krishna Iyer has restricted the circumstances in which the death penalty can be

6 Bishnu Deo Shaw Vs State west Bengal Supra p.54

7 Rajindra Prasad Vs State of UP
8 Ediga Anamna Vs State of Andhra Pradesh

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imposed has led. Justice Sen to complain that Krishna Iyer Justices opinion have
brought about a virtual abolition of the death sentence.9

If the death penalty is not per se unconstitutional as a denial of due process of

law and the rule of law, it is unlawful as a breach of fundamental rights when it.........
makes no measurable contribution to acceptable goals of punishment and hence is
nothing more than the purposeless and needless imposition of pain and suffering10.

DISCRETIONARY DEATH SENTENCE: WHETHER IT IS

CONSTITUTIONALLY VALID OR INVALID.

In MC Gautha Vs California, Justice Harlon for the majority of the United

States Supreme Court held that Despite the undeniable surface appeal of proposition,
unstructured jury discretion in deciding when to award the death sentence for an
offence for which it is a permissible penalty is not a denial of due process of law,
Those who have come to grips with the hard task of actually attempting to draft
means of channeling capital sentencing discretion have, he said.

In Furman Vs Georgia, the court impliedly overruled its earlier decision in

MC Gautha Vs California. In nine Separate opinions the justices struck down by a
majority of 5-4, the death penalty statutes at issue as cruel and unusual and hence as a
denial of the due process of law guaranteed by the 14th Amendment. Of the judges in
the majority, Justice Marshall and Breman said that the death penalty is per se
unconstitutional, Justice Stewart, Douglas and White found that the jury discretion in
sentencing authorized by the statutes was instructed arbitrarily, imposed and therefore
a denial of fundamental rights.

The decision in Furman Vs Georgia provoked many American States to

amend their death penalty laws. Other states attempted to structure judge and jury
discretion in awarding the death sentence by specifying aggravating and mitigating
factors. The constitutionality of those statutes was considered by Supreme Court in a

9 Dalbir Singh & others Vs State of Punjab

10 Coke Vs Georgia 433 Vs 584(1977)

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series of cases in 1976: Gregg Vs Georgian, Profit Vs Florida12 and Furek Vs
Texas13. The three statutes at issue invoked different types of legislative guidelines to
the sentence. But in all three cases the Court held by a majority of 7-2 that the statutes
satisfied the demand of Furman Vs George that in death penalty statutes discretion
must be suitably directed and limited so as to minimize the risk of wholly arbitrary
and capricious action.

The expression discretionary death has been used to distinguish it from the
cases of mandatory death penalty. In brief, the discretionary death penalty means that
if the offence, for which it is prescribed is proved, the court has a discretion to award
either death sentence of the lesser sentence which is prescribed by law for that
offence. Under the Indian Penal Code, death penalty has generally been prescribed as
the maximum limit of full range of punitive measures. The only exception was
Section 303 which provides for the mandatory death penalty.14

Under the Indian Penal Code, discretionary death penalty is prescribed in

two patterns. Under the first pattern very wide discretion is vested in the courts to
choose from the death sentence and a wide range of other lesser sentence. This pattern
is followed in Section 132,194,305,307 and 396. Under the Second pattern, only a
limited discretion is available to the court to choose from the sentence of death and
single alternative like imprisonment. This pattern is followed in Section 121 and 302.
However in all cases, where the law provides for discretionary death sentence the
courts have to exercise the discretion judiciously after balancing all the aggravating
and mitigating circumstances attending a particular case.

All the challenges to the constitutional validity of discretionary death penalty

have been made mainly on the basis of the fundamental rights guaranteed by Article
14,19,21 of the constitution.

It is well known that judicial interpretation of these Articles is guided by the

Maneka Gandhi case. But even before the pronouncement of this leading

11 4 28 US. 153 (1876) The case of Troy Gregg is the subject of Waiting for It: The Ordeal of a Man on
Death Row (1980) by Christopher Davis.
12 428 Vs 242 (1976)
13 428 Vs 262 (1976)
14 This provision has been struck dawn as unconstitutional by the Supreme Court in Mithu Vs State of
Punjab AIR 1983 SC 473

95
constitutional decision of pervasive influence the constitutional validity of death
penalty had been challenged on this ground. Therefore, it becomes necessary to study
the challenges and judicial approach to the constitutional validity of death penalty in
two periods.

a. Pre Maneka Period.

b. Post Maneka Period.

PRE MANEKA PERIOD

This period may also be described as Gopalan Period as the constitutional

interpretation of the fundamental rights guaranteed by Article 19, 21 and 22 was
governed by A.K. Gopalan Vs State of Madras15. This case in beyond the scope of
the present discussion. Therefore a brief reference may be made to illustrate its
impact. In it, the Supreme Court laid down that Article 19 and 21 were not
supplemented to each other but were mutually exclusive. It was also held that the
procedure established by the law in Article 21 meant procedures provided by the law
of the state that is noted law. It did not include what was known as procedural due
process in America, nor were the principle of natural justice included in it. In other
words, this decision laid down that the court had no power to examine the
reasonableness. If the law depriving a person of his life and personal liberty.

The Gopalan decision is regarded of high precedent value. Questions have

been raised regarding the soundness ofjudicial view expressed in this case. But it was
not possible for the court at that time to introduce the doctrine of procedural due
process in Article 21 in the face of its clear cut rejection by the constituent
Assembly16. However, the law and order problem could not have escaped the
attention of the court. A prosecuting approach was obvious on the part of the Court.

Thus, before Maneka Gandhi, it was not possible to challenge the

reasonableness of the procedure provided by the law for deprivation of life or
personal liberty with respect to Article 21. Article 21 could be invoked only by

15 AIR 1950 SC 27
16 See, Austin Granvile, the Indian Constitution cornerstone of a Nation, Oxford, Clarendon Press
1966,101,113

96
arguing that the law of statute in question had no procedure for the deprivation of life
or personal liberty. Therefore the constitutional validity of death penalty could be
challenge only in this limited way.

And this was done in. Jagmohan Singh Vs State of UP11. In this case the
constitutional validity of death sentence for murder under Sec302 of the Indian Penal
Code, was challenged for the first time. It was argued that death penalty for murder
was constitutionally invalid, as it violates, among other things fundamental rights
guaranteed to the citizen of India. It was further contended that death penalty was
violative of the constitutional right of equality guaranteed under Article 14, as in two
similar cases one may get death penalty and the other life imprisonment Mr. R.K.
Garg, Counsel for the appellant contended in this respect that the discretion given to
the judges to impose capital punishment or imprisonment for life, is uncontrolled and
unguided. The Supreme Court held that it does not find any merit in this contention. If
the law has given to the Judges a wide discretion in the matter of sentence to be
exercise by him after balancing all aggravating and mitigating circumstances of the
crime, it will be impossible to say that there would be at all any discrimination, since
facts and circumstance of another.

It has been pointed out by this court in Bndhan Chowdhary Vs State of

Bihar18 that Article 14 can hardly be invoked in matter of judicial discretion. The
challenge with respect to Article 19 was that the sentence of death put a final and to
all the fundamental freedoms guaranteed in this Article. It was contended that the
freedom to live was basic to the enjoyment of all those freedoms even though it was
not expressly mentioned in this Article. Therefore, it could not be desired by any law
unless such law was reasonable and required in general public interest. The court, just
for the sake of this argument, assumed that the freedom to live was basic to the
enjoyment of all the fundamental freedoms guaranteed under Article 19 and this
proceeded to examine whether Section 302 Indian Penal Code prescribing the
sentence of death for murder was reasonable and in the public interest at the outset,
the court clearly pointed that the argument advanced against death penalty per se were

17 AIR 1973 SC 947 Cr. LJ 370,1973 S.C. Cr.162

18 AIR 1951 SC 191 (1965)1 SCR 1045

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almost similar to those raised in the American case Furman Vs State of Georgia. It
compared the viability of these arguments in both the countries. India and America.
Speaking for the court, Justice Palekar pointed out the absence of the cruel and
unusual punishment clause20 and the liberal interpretation of the due process clauses
of the American constitution in India. He drew attention towards the fact that despite
the presence of these favourable factors and abundant evidence and literature in
support of the abolition of death sentence, the US Supreme Court could not conclude
that death penalty was per se unconstitutional.21

The court also held that death penalty was neither cruel nor unusual. Repelling
the contention of the appellants in this regard. Justice Palekar pointed out that person
regarded even life imprisonment as a cruel punishment. He made it clear that death
penally was not and unusual punishment in India. It had a long legislative histoiy in
India and had been recognized by the constitution as a permissible punishment. The
framers of the constitution were well aware of its existence and made provision for
appeal and reprieve etc in capital cases.22

Moreover Justice Palekar pointed out that the public opinion in India was
against the abolition of death penalty. This was reflected through the repeated
rejection of the bills and resolution introduced in the Parliament for the abolition of
this extreme penalty. In addition to this, the court traced the entire procedure for the
trial of a person accused of murder and concluded that it contained several inbuilt
safeguards which sufficiently guarded against any hasty decision.

Thus, the argument based on Article 19 could not impress the court. In
upholding the constitutional validity of death penalty23 vide Article 19, the court
heavily relied upon the 35th Report of the law commission of India as it was the only
authoritative study made on this subject in India. The law commission had favoured

19 (1972) 408 Vs 238,33,L.Ed 2d 346

20 The eight Amendment to the Vs Constitution forbid the infliction of cruel & unusual punishment
21 In furman, out ofjudges of the Court, only two Judges (Justice Brennan & Justice Marshall) held that
death penalty was per se unconstitutional.
22 The Court refined to Article 72 (1) (c) 134 of the Constitution in the connection.
23 In 1931, an abolition Bill was introduced in the legislative Assembly by Gaya Prasad Sing, in 1956, a
bill for abolition was introduced in by the Mukund Lai Agarwal in 1958, a Resolution for abolition was
moved in the Rajya Sabha by Prithvi Raj Kapoor in 1961, a similar resolution

98
the retention of death penalty in view of the conditions prevailing in India24. In the
light of this Report the court concluded that death penalty was neither unreasonable
nor against the public interest.

The Court was also not impressed by the arguments based on Article 21. It
was contended that the law did not provide any procedure for making a choice
between death sentence and life imprisonment. Therefore, as there was no procedure
established by law in the matter of sentence, Section 302 was hit by Article 21.

The court admitted that there was ho penal procedure to adduce evidence on
the point of sentence. But its reason was that all the relevant facts and circumstances
of the case were already before the court. In this connection, Justice Palekar observed:

The sentence follows the conviction and it is true that no

formal procedure for producing evidence with reference to
the sentence is specifically provided. The reason is that
relevant facts and circumstances of the case are already
before the court.

Justice Palekar referred to the procedure for the trial of murder cases which
revealed that all the circumstances bearing on the offence were brought to the notice
of the Court while establishing the guilt of the accused. The procedural law also
required the accused to be questioned with regard to the circumstances appearing
against him. Moreover, the experience of trials showed that in important cases like
Murders, the court always gave a chance to the accused to address the court on the
question of sentence. Not only this, any additional evidence could be adduced and
proved in accordance with the provision of the Evidence Act. Referring to the
procedural safeguards of Article 19 Justice Palekar concluded that these provisions
formed the part of the procedure established by law as required by Article 21 and
therefore Section 302 Indian Penal Code was not violative of Article 21.

In addition to the aforesaid grounds, the constitutional validity of death

penalty was also challenge on the basis of Article 245 of the constitution. It was
argued that section 302 of Penal Code, as hit by the doctrime of excessive

24 The law commission of India: 35th report on Capital Punishment 1967, Vol. I, 354

99
delegation as it conferred wide and unguided discretion on the judges in imposing the
death penalty.

The court rejected this argument also as untenable. In doing so it relied upon
Me Gautha Vs State of California25 in which the US Supreme Court had said that
the standardization of sentencing discretion was impossible in view of the infinite
variety of cases and facets of each case. Any attempt to exhaustively enumerate all
aggravating or mitigating circumstances to be considered by the judges to make a
choice of sentence would be a failure in this connection, the court also referred to the
long standing penal policy in India. This policy has been to prescribe a maximum
penalty, which is intended for the worst cases, and to leave to the Judge a veiy wide
discretion to determine the extent of punishment within that limit. This policy was
approved by the British Royal Commission in its Report on Capital Punishment26. It
stated that:

No formula is possible that would provide a reasonable

criterion for the infinite variety of circumstances that may.
affect the gravity of the crime of murder; Discretionaiy
judgment on the facts of each case is the only way in which
they can be equitably distinguished. We are satisfied that as
long as capital punishment is retained this is the only
practicable way of correcting the outstanding defects of the
existing law27.

Justice Palekar pointed out that the judicial procedure had been devised to
eliminate the errors committed in the matter of sentence by making elaborate
provisions for appeals and revisions to the higher courts. Speaking in this context, he
added.

25 (1971) 408 Vs 183: 28 L Ed 2d 711. In this case the constitutional Validity of the law giving
discretion to the jury to inflect death sentence was questioned on the ground that the impugned law did
not provide any standard for the jury to make a choice between the sentence of death & life
imprisonment in such cases.
26 Jagmohan Singh Vs State of UP AIR 1973 SC 947,955
27 Quoted in Jagmohan Singh is State of UP AIR 1973 SC 847,955

100
 The impossibility of laying down standards in at the very
core of the criminal law administered in India which
invests the judges with a very wide discretion in the matter
of fixing the degree of punishment. That discretion in the
matter of sentence is..... Liable to be corrected by superior
courts, Laying down of standards to the limited extent
possible......... could not serve the purpose. The exercise of
judicial discretion on well recognized principles is, in the
final analysis, the safest possible safeguards for the
accused.

The court thus rejected all the argument put forward by the appellant to get the
death penalty declared unconstitutional and invalid. However, the manner in which
the court dealt with these arguments has been severely criticized by various legal
luminaries. Seervai, an authority on constitutional law, has also criticized the court for
dealing with the arguments based on Article 19 in detail. He submits that the court
should have straightway rejected this contention on two grounds. Firstly, if the
contention of the appellant is accepted, it would be to nullify the express provision of
Article 21. Secondly, Article 21 makes no distinction between the citizens and non
citizens whereas Article 19 is limited only to citizens. Since Article 21 does not lay
down different standard for deprivation of life of citizens and a non citizen, it would
be wrong to accept an argument based on that distinction28.

There is no doubt that the argument put forward to assail the constitutional
validity of death penalty in Jagmohan Singh was very forceful. But the court rejected
then with equally forceful reasoning. This decision closed the issue of constitutionally
of death sentence and it could not be reagitated for almost seven years, whereas
during that period, the sentence of death faced a number of challenge in the United
States of America29.

28 Seervai, H.M Constitutional law of India lBombay, N.M Tripathi, Privatye Ltd 1988 Supplement of
third edition 410
29 See Gregg Vs State of Georgia (1976) 428 Vs 153; 49 L Ed 2nd 859; Profit Vs State of Floride (1976
428 Vs 242 49 L Ed 2nd 913, Jurek Vs State (1976) 482 Vs 262 49 L Ed 2nd 929, Woodsen Vs State
of North Carolun (1976) 428 Vs 280 L Ed 2nd 977.

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 After Jagmohan Singhs case, the Code of Criminal Procedure 1898, was
replaced by the Code of Cr. Procedure 1973. The new Code contain two new
provision under Section 235 (2) and 354 (3) which regulated the infliction of death
sentence wherever provide by law. The former requires the sentencing judge to hear
the person, convicted of an offence, on the question of sentence before passing the
sentence on him according to law. The latter requires the sentencing judge to record
reasons for awarding the sentence chosen by him in capital cases. If he chooses to
impose the sentence of death, he is required to state special reasons for doing so.

Further, the decision of the Supreme Court in Maneka Gandhi case

completely changed the Gopalan interpretation of fundamental rights under whose
impact the first challenge to the constitutional validity of death penalty was dealt with
by the Supreme Court. Under the Gopalan view, the doctrine of due process was not
allowed to colour the interpretation of Article 21 for 27 years after the
commencement of the constitution in view of the express intention of the framers of
the constitution. The court did not claim the power to review reasonableness or
fairness of the procedure prescribed by law for the deprivation of personal liberty.

However, Maneka Gandhi attempted to introduce radical changes in the

constitutional policy with respect to fundamental rights. It marked the beginning of a
new phase of judicial activism. The Supreme Court held that the attempt of the court
should be to expand the reach and ambit of fundamental rights rather than to attenuate
their meaning and content by a person of judicial construction. The court also
discarded the theory that Article 14,19 and 21 were independent from each other. It
was held that these Articles were not mutually exclusive but were, inter related and
supplementary to each other. However, the central point of new interpretation was
Article 21. The court held that the procedure contemplated by Article 21 must be fair,
just and reasonable and not arbitrary, fanciful or oppressive. Thus, the expression
Procedure established by law became almost synonymous with the doctrine of
procedural due process of the American constitution.

102
 POST MANEKA PERIOD

The developments in the procedural law relating to imposition of death

penalty and the new dimensions of Article 21 unfolded by Maneka Gandhi case
encouraged the lawyers to reagitate the question of constitutionality of death sentence.

This time the constitutional desirability of the death penalty came up for the
consideration of the court in RAJINDRA PRASAD VS STATE OF UP.30 Actually
this was not the real question before the Court The Court was invited to consider the
question as to the circumstances under which the death penalty could be imposed for
the offence of murder. The question arose out of three special leave Appeals, in which
the leave was limited to the question of sentence. However, JUSTICE VR
KRISHNA IYER, who delivered the majority judgment of the Court31, discussed a
wide range of issues concerning death penalty, he took the help of the history, culture,
law, morality and penological justifications of the death penalty, but the most
emphasized aspect was its constitutional dimension. Jagmohan Singh was sought to
be distinguished on the ground that it had held the sentence imposed after trial in
accordance with the procedure established by law to be valid. Therefore, the
observation of the court on the sentencing criteria for discretionary power did not
constitute ratio of the case. This was realized by Justice Krishna Iyer also as he
observed.

We banish possible confusion about the precise issue

before us it is not the constitutionality of the provision for
death penalty, but only the canalisation of the sentencing
discretion in a competing situation. The former problem is
now beyond forensic doubt after Jagmohan Singh..... and
the latter is in critical need of tangible guidelines at once
constitutional and functional.

30 AIR 1979 SC 916.

The Bench consisted of Justice VR Krishna Iyer, Justice AP Sen and Justice D.A Desai. Justice
Krishna Iyer delivered majority of the court for himself and on behalf of justice DA Desai, Justice
A.P Sen delivered a separate designing opinion.

103
 Although Rajendra Prasad has been overruled by the Supreme Court in
Bachan Singh32 the principles laid down and certain observations made by Justice
Krishna Iyer deserve to be noticed.

Justice Iyer pointed out that Section 302 of the Penal simply gave the
discretion to the Judges to impose either death sentence or life imprisonment on the
person convicted for the offence of murder, without giving, any guidelines as to the
exercise of that discretion. He stated that unguided discretion in this matter even in
the hands of the judges was grave risk as the question involved as of life or death. The
matter should be reviewed because of the irrevocable nature of death penalty. The
error committed by the Judges in sentencing a person to death was beyond correction.

He stated that the lack of guidelines to regulate the exercise of sentencing

discretion led to uncertainty and confusion elaborating on this, he observed that
despite the formulation of certain guidelines for the exercise of sentencing discretion
by the Supreme Court in Ediga Anammas case, no consistent trend had emerged in
this respect. The use of expression such as no extenuating circumstances or no
ground to interfere in confirming death sentence in most of the cases33 by the
Supreme Court afforded little guidance in the subsequent cases. He also pointed out
that in Jagmohan Singh the court had held that the sentencing discretion ought to be
exercised on the well recognized principles. These well recognized principles
needed to be deciphered. Further, according to him, the absence of guidelines to guide
the exercise of sentencing discretion may be hit by Article 21.

Thus, according to Justice Iyer,

all these reasons necessitated the formulation of guidelines

to regulate the exercise of sentencing discretion. He also
added that the death penalty issue should be examined in
the light of growing awareness with respect to the gravity
of the punishment, human rights jurisprudence and
constitutional protections. He conceded that the task of
formulating guidelines fell within legislatures competence.

Bachan Singh Vs State of Punjab AIR 1980 Sc 898

33 Egiga Anamna Vs State of AP AIR 1974 SG 799

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 But as the legislatures had not done this job, it was for the
judiciaiy to do this because it had to face this problem daily
while sentencing.

Justice Krishna Iyer stated that the guidelines for the exercise of sentencing
discretion were to be formulated keeping in view the following factors: (a) Shift in the
legislative policy towards life and against death; (b) the growing awareness for the
abolition or restricted use of death penalty and (c) the concept of social justice and
human rights as contained in the provision of the constitution. In this way the
constitutional aspects of death penalty were brought for the consideration of the court.
Justice Iyer deals with constitutionality of death penalty on a number of ground. The
preamble, Article 14, 19 and 21 and Part III and IV of the constitution, in general,
were used for this purpose. However from the judgment it appears that the learned
Justice was not in favour of total abolition of death penalty. He was in favour of its
limited application.

With regard to the constitutionality of death penalty he stated that death

sentence for the offence of murder provided by Section 302 of the Penal Code finally
deprived a person of all his fundamental rights. Therefore, it had to be in consonance
with Article 14,19 and 21. It also had to be in tune with other provisions of part III,
concept of social justice enshrined in part IV and the concept of human dignity set
high in the Preamble of the constitution. He agreed that fundamental rights were not
absolute but were subject to reasonable restrictions which could even extend to
extinction in some extreme situations34 regarding Article 14. Justice Iyer stated that
this Article guaranteeing equal protection of laws assured non arbitrary and civilized
punitive treatment. Unusually, cruel punishments spelled arbitrations and therefore
violated Article 14. This Article did not permit arbitrariness and it required the judges
to employ equal principles in the exercise of the sentencing discretion while
sentencing they could not be arbitrary for what was arbitraiy was perse unequal.

Justice Krishna Iyer also used the Preamble of the constitution to establish that
death penalty was not in consonance with the basic value i.e. the dignity of the

34 Id 930 Justice Krishna Iyer refined to the case of Narendra Kumar Vs Union of India AIR 1960 SC
430 in this content.

105
individual enshrined therein. He stated that the dignity of the individual could not be
defiled by inflicting the degrading sentence of death merely because the offence of
murder had been proved against him. There may be circumstances demanding the use
of lesser punishment.

Relying on the concept of social justice enshrined in the preamble and

preamble and part IV and Article 38 of the constitution, Justice Krishna Iyer said
that social justice was a variable concept varying with age and crime. In a developing
country, in the area of crime and punishment, social justice was to be rationally
measured by social defence and geared to developmental goals. Thus, according to
him, death penalty could be validly inflicted in case of hardened murders posing a
consistent threat to social security. In this connection, he observed343:

If the murderous operation of a die hard criminal

jeopardizes social security in persistent, planned and
perilous fashion, then his enjoyment of fundamental tights
may be rightly annihilated.

This clearly shows that he was not in favour of total abolition of death penalty
lastly; Justice Krishna Iyer stated that under Article 19, the court could impose the
death penalty only when it was reasonable necessary. He added that reasonableness as
envisaged in Article 19 was a relative term depending on a variety of factors etc. His
following observation also shows that he was not in favour of total abolition of death
penalty. It is constitutionally permissible to swing a criminal out of corporeal
existence only if the security of state and society, public order and the interested of
general public compel that course as provided in Article 19(2) to (6). They are the
special reasons which Section 354(3) speaks of.

In view of the above discussion it can be concluded that according to Justice

Krishna Iyer, infliction of death penalty was constitutionally sanctioned only if
otherwise public interest, social defense and public order would be damaged
irretrievably.

34a Rajendra Prasad Vs. State of UP, AIR 1979 SC 916,923,925

106
 Justice Krishna Iyer put forward several other reasons against death penalty
including those based on penological ground. He took the view that the death
penalty should be imposed only in those case where the criminal was beyond a
chances of reformation. In this, connection, he observed.

We must always have the brooding thought that there is a

divinity in every man and that none is beyond redemptions.
But death penalty, still in our code, is the last step in a
narrow category where, within a reasonable spell, the
murderer is not likely to be cured and tends to murder
others, even within the prison or immediately on release, if
left alive a king cobra which, by chronic habit knows only
to sting to death unless defanged if possible.

Another significant argument against death penalty, put forward by Justice

Iyer was that death penalty was generally imposed on the poor, the ignorant, the
powerless and the hated. These include the striking workers, desperate with defeat,
the political dissenter and sacrificing liberator bent on changing the social order from
Satanic misrule, the neglected children turned into hoodlums and the like- However,
the affluent and sourceful people normally escaped the sentence of death. In this
connection the following observations of Justice Iyer deserves to be noticed. He
observed34b:

Historically speaking, capital sentence perhaps has a class

bias and colour bar, even as criminal law barks at both but
bites the proletariat to defend the proprietary , a reason
which incidentally explains why corporate criminals
including top executives who, by subtle process, account
for slow or sudden killing of large members by
adulterations, smuggling couriering, pollution and other
invisible operations, are not on the wanted list and their
offending operations which directly derive profit from
Mafia, and white collar crimes are not visited and death

34b

107
 penalty, while relatively lesser delinquencies have in
statutory and forensic ahetorie, deserved the extreme
penalty.

Justice Iyer regretted the fact that courts looked only in the immediate
circumstances and did not take into considerations the circumstances and reasons
which led a person to become a murder. He held that in awarding death penalty, the
totality of circumstances of the offence and the offender were to be considered, with
special emphasis on the offender. He explained this by stating:

Special reason necessary for imposing death penalty must

relate, not to crime as such but to the criminal. The crime
may be shocking and yet the criminal may not deserved
death penalty. The crime may be less shocking than offence
like murders and yet the callous criminal e.g. a lethal
economic offender, may be jeopardizing societal existence
by his act of murder.

From the example given by Justice Iyer in his majority judgment, it can be
gathered that he was in favour of imposing death penalty in the following three
categories of cases:

1. White color offences

2. Anti Social offences

3. Hardened murder beyond reformation.

Thus, in Rajendra Prasad, the majority wanted Section 302 Indian Penal
Code and Section 354 (3), Criminal Procedure Code to be read in the humane light of
Part HI and the Preamble of the constitution. In Justice Krishna Iyers view, the
personal, social, motivational and physical circumstances of the offence and the
offender were the relevant factors in deciding the sentence. The majority in this case
also held that Article 14,19 & 38 validated inflection of death penalty only in the
limited class of cases. The majority opinion delivered by Justice Krishna Iyer put a
question mark on the constitutional validity of death penalty. In view of the holding of
Jagmohan Singh, it was not open to him to question the constitutional validity of

108
death sentence. The most disturbing feature of this judgment was that it discussed the
desirability of capital sentence when appeal was only against the quantum of
sentence.

JUSTICE A.P. SEN dissented with the majority and gave a separate opinion
which effectively refuted the majority opinion. He found it difficult to agree with
Justice Iyer opinion which defined the class of case in which alone the death sentence
could be imposed for the offence of murder under Section 302 Indian Penal Code
1860, and put a restrictive construction on the words special reason contemplated
in Section 354 (3) of Criminal Procedure Code 1973. According to Justice Sen,
such an interpretation virtually abolished the death sentence35. Justice Sen agreed
with Justice Iyer on view that Article 21 of the constitution guaranteed citizens right
to life and personal liberty irrespective of his political belief, class, creed, or religion.
However, he not only disagreed but also severed, criticized Justice Iyer for equating
the patriots who sacrificed their lives in the countrys struggle for for freedom with an
ordinary criminal. He stated that humanism should not obscure ones sense of realities
and a person must face the consequences of committing a diabolical and cold blooded
murder of an innocent person. Such a criminal had no right to life.

Justice sen held that its view of the ratio of Jagmohan it was not open for
majority to hold that except in the specified categories, death sentence would be
violative of Article 14,19 and 21 of the constitution. Such a proposition was a mere
expression of the personal opinion of the judges and could not be regarded as law.
The judges were not to be concerned with the moral and ethics of a punishment and
need not venture into what law should be. They had to administer the law as it stood.
Further, he stated that since the appeal was limited only to the quantum of sentence, it
was not constitutionally and legally permissible for the majority to restrictive Section
302 Indian Penal Code or to redefine Section 354 (3) Criminal Procedure Code by
the process of judicial interpretation, in such a manner which had the effect of
limiting the scope of death sentence. The question whether the scope of death penalty
should be curtailed or not was to be decided by the legislature, and not by the
judiciary.

35 AIR 1929 SC 916

36 AIR 1979 SC 916

109
 Referring to Furmans case which was heavily relied upon by Justice
Krishna Iyer, Justice Sen made it clear that there it was not held that capital
punishment was per se cruel and unusual. Only it was held that the way in which it
was awarded arbitrarily or capriciously made it so. He also stated that Furman no
longer held the field even in the United States of America. After the decision in
Furmans case, the legislatures of 35 states of America amended this laws under
which the death penalty was to be imposed in order to meet, the objection of that
decision. Two different lines were adopted for this. Some states established new
procedures for capital cases providing for bifurcated trials with the pre-sentencing
hearing. Courts of appeal were given broader authority to decide whether the death
sentence was fair in the light of sentence for sentence for similar offences. The second
line followed was to eliminate all discretions^7 in awarding the sentence of death by
providing mandatory death sentence for certain specified offences. This avoided the
unpredictable and arbitrary use of death penalty which was denounced in Furmans
case. In 1976 the US Supreme Court decided five appeals against death sentence
imposed for the offence of murder. Three of them (Gergg, Proffit and Jurek cases)
were concerned with discretionary sentencing procedures. In these cases, it was held
that the death penalty was not inherently cruel and unusual and was not invariably
violative of the constitution. It served two important social purpose, retribution and
deterrence. It was also held that the death penalty for offence of murder was not
without justification. It was neither unconstitutionally severe nor invariably
disproportionate to the offence. In Greggs case the Court held that the death sentence
was not per se violative of the eighth & fourteen amendment.

Justice Sen reasserted that it was for the Parliament and not the courts to
decide the question of abolition or retention of death penalty on substantive merits. So
it was useless for the judges to express their personal views on this issue. Similarly
the question of the proper penalty for the offence of murder was also for the
Government to decide as it was responsible for law & order. In this regard, the law
commission in its 35th Report on capital punishment had clearly recommended the
retention of death penalty.

37 408 Vs,238 L Ef 2d 346.

no
 Speaking strongly in favour of death penalty, reliance was also placed by
Justice Sen or the changes in the procedural law relating to this penalty. He reiterated
the view of the Supreme Court in earlier cases38 that it was neither feasible nor
legally permissible for the court to give a specific meaning to Special Reasons. He
held that it was the duty of court to decide each case on its own particular facts and
impose a proper punishment. In addition to this he pointed out that elaborate
safeguards by way of reference, appeal and executive clemency, which are available
to the person sentenced to death.

He also held that the discretion given to the judges to decide the sentence
under Section 302 of the Penal Code had worked well in India and it was not proper
for the court to curtail the scope of their discretion by judicial process. He pointed out
that the adoption of such a course and substitution of the lesser sentence where the
death sentence was called for, had grave consequence as it cause miscarriage of
justice and seriously undermined the respect for law.

Justice Sen concluded his dissenting opinion by stating that the balance of
opinion was in favor of retention of death penalty. He observed.

I do no intend to enter upon any philosophical dialectics as

to the utility of the death sentence or enter into the
controversy whether it is unnecessary, brutal, or
dehunamnising but I would for my part, like to say, that I
am of the opinion with much difference for the great
authority of those who think otherwise that the weight of
evidence and reason is in favour of retention of the death
penalty39

Thus, the majority opinion delivered by Justice Krishna Iyer in the present
case is an interesting reflection of the inimitable rhetonic emotional tenor,
humanitarian approach and penological perception. He sought to high light the
constitutional justification for the use of death penalty in limited cases after mounting
a fairly forceful attack on its constitutional validity. One probable reason for this

38 Greggy Vs state of Georgia (1976) 428 Vs 153,49L Ed 2d 859, Profitt Vs State of Florida (1976) 428
Vs 2u2 49L Ed2d 913.
39 Section 354 (3) & 235(2) Criminal Procedure Code 1973 were refine by justice Sen in this respect.

111
could be that he could not completely overlook the effectiveness of death penalty as
an instrument of social defence. Therefore, he tried to draw a balance between
individual protection and social security by banishing death penalty generally and yet
retaining it for certain types of offences.

Rajendra Prasad was followed in Bishnu Dec Shaw Vs State of West Bengal.
In this case too, the appeal was limited only to the question of quantum of sentence
but the court examined the constitutional desirability of death penalty. Inspired by the
majority opinion in Rajendra Prasad, Justice Chinnappa Reddy a echoed views
similar to those expressed that case and substituted the death sentenced imposed on
the appellant with life imprisonment.

Justice Chinnappa Reddy said death penalty was a totally irrevocable and
inhuman punishment and it defeated the basic purpose of criminal justice by rejecting
the rehabilitation of the offender. He also asserted that death penalty could not be
justified on the basis of the theories of retribution, denunciation, deterrence and
prevention. Another limitation of death penalty was its compelling class complexion.
Justice Reddy pointed out that death sentence was imposed mostly on the offender
from the economically and educationally lower strata of the society.

He also held that death penalty did not confirm to the current standards of
decency. It violated the basic human right i.e. the right to life and offended human
dignity40. In view of these factors Justice Chinnappa Reddy proceeded to examine
the exercise of discretion vested in the Judges under Section 302 for the Penal Code.
The Judges had to state special reason for infliction the death sentence under Section
354(3) of Criminal Procedure Code 1973, which restricted the discretion to some
extent. He observed that a Judge had to balance the personality of the offender with
the circumstances, the situations and the reactions and choose the appropriate
sentence to be imposed. He did not formulate any guidelines to guide the exercise of
discretion in making the choice between the penalties of death and life imprisonment.
However, he agreed with the guidelines formulated in this connection by the majority
in Rajendra Prasad.

40 Pandey B.B, Face to face with death sentence Supreme Courts legal & constitutional Dilenma
(1979) 4SCC journal )30,44

112
 Thus, the holding of Rajendra Prasad was not in consonance with that of
Jagmohan Singh and its overall effect was the dilution of the authority of Jagmohan
Singh. It was widely believed that the favorable judicial statements made by the
majority in Rajindra Prasad would clear the deck for the future court to review
Jagmohan Singh. The opportunity certainly came in Bachan Singh Vs State of
Punjab but the things did not take shape as was widely expected. On the contraiy,
Rajendra Prasad was overruled and it was established beyond doubt that the death
sentence for the offence of murder was constitutional. The dissent of Justice Sen, in
Rajendra Prasad finds an echo the majority decision of Bachan Singh.

In BACHAN SINGH, it was contended that Jagmohan Singh needed

reconsideration for following reasons.

(a) Jag Mohan Singh was decided keeping in view the old Code of Criminal
Procedure of 1898 whereas under the new Code of 1973, death penalty had
ceased to be the normal penalty for murder.

(b) The principle laid down in Maneka Gandhi required that every law in its
procedure and substantive aspects must satisfy Article 14, 19 & 21. This
liberal interpretation of these fundamental rights was not available when
Jagmohan Singh was decided.

(c) India being a signatory to the International covenant on civil and Political
Rights, according to which the capital sentence had become outmoded, stands
admitted to a policy for abolition of death penalty

(d) The very nature of the issue of death penalty necessitated its reconsideration to
be in tune with the evolving standards of decency. Therefore, it could not be
decided on the basis of stair decises.

The court framed two questions for its consideration.

(a) Whether the death penalty as prescribed an Section 302 The Penal Code was
unconstitutional ? and

41 The appellant in this case killed his son because he suspected the deceased was not his own son, but
had been foisted on him by his infidel wife. He was sentenced in death by the trial court and this
sentence was also confirmed by the HC
(b) If S.302 Indian Penal Code was constitutional, whether the sentencing
procedure provided in Section 354 (3) of Criminal Procedure Code 1973 was
unconstitutional for investing unguided and untrammeled discretion in the
court?

On the basis of Article 19, it was contended that right to live was basis to the
enjoyment of all six freedoms guaranteed under Clause(l) of Art 19. Since death
penalty put a final end to all those freedoms, the law prescribing it had to pass the test
of reasonableness prescribed under Clause (2) to (6) for this Article it was also
asserted that as death penalty defiled the dignity of the individual and served no social
or penological purpose, its infliction should be regarded as unreasonable restriction.
The argument was further fortified by pointing out the irreversible nature of death
penalty; possibility of errors in its application and inhuman and cruel method for its
administration.

The court rejected all these contentions. While doing so. it said that unlike
Article 21 Article 19 did not deal with the right to live and personal liberty, and
therefore it could not be invoked to judge the constitutional validity of Section 302
Indian Penal Code. Article 19 applied only if the activity was within, its purview
and protection. In reaching this conclusion, the court applied the test of direct and
indirect effect of the impugned section on rights confirmed in Article 19(1).
According to this test, if the effect of the impugned law on any of the rights confined
under Article 19(1) was merely incidental, indirect, remove or collateral and was
dependent upon factors which may or may not come into play, the ground of Article
19 would not be available forjudging its validity. Speaking for the majority, Justice
Sarkaria also expressed the view that judicial pronouncements in RC Cooper and
Maneka Gandhi case had not completely rejected this test. He held that this test was
still relevant and the cases decided by the court since Gopalan suggested that it had
not been abandoned by the court. Applying this test, he stated that since no right in
Article 19(1) guaranteed freedom to commit murder the law punishing it did not
attract the application of Article 19. Thus Justice Sarkaria concluded.

We are of the opinion that the deprivation of freedom

consequent upon an order of conviction and sentence is not

114
 a direct and inevitable consequence of the penal law but is
merely incidental to the order of conviction sentence which
may or may not come into play, that is to say, which may
or may not be passed. Considering therefore the test
formulated by us, in its dual aspect, we are of the opinion
that Section 302 of the Penal Code does not have to stand
the test of Article 19(1) of constitution.

. The court said that even if it was assumed that Section 302 of the Penal Code
was to satisfy the test of reasonableness under Article 19, the state had discharged its
burden primarily by relying upon the 35th Report of the law commission, the decision
of the court in Jagmohan Singh and subsequent cases wherein it had been highlighted
that death penalty served deterrent puipose. Therefore it was for the petitioner to
prove that the death sentence for murder was not outmoded, unusual or excessive as
to be devoid of any rational nexus with the purpose and object of the legislation.

Thus, the court proceeded to examine the merit of the argument put forward
by the petitioner. One of their contentions was that death penalty was irreversible and
did not permit any scope for the correction of mistakes committed in imposing it. The
court conceded that death penalty was irrevocable and a few case of erroneous
execution had actually happened in the past. The court said that this could not be
reason for abolition of death penalty but for the reforms of the judicial system and
sentencing procedure. Justice Sarkaria pointed out that such error of judgment could
not be completely eliminated from the justice system which was devised and manned
by human beings. But the chances of such errors could be reduced to the infinitesimal
extent by providing sufficient safeguards and checks. He stated that ample safeguards
had been provide by law and the constitution which almost eliminated the chances of
an innocent person being convicted and executed for a capital offence42.

The court also considered the contention based on the International covenant
on civil and Political Rights and the European convention on Human Rights. It was
contended by the petitioner that India, being a party to these covenants, stood

42 The respect citation are R.C Cooper Vs VOI AIR 1970 SC 564 & Maneka Gandhi Vs VIO AIR 1978
SC 597.

115
committed to the policy of abolition of death penalty. Therefore, constitutional
validity of the impugned provisions in Section 302 Penal Code and Section 354 (3)
of Criminal Procedure Code, should be considered in the light of these covenants,
which represented the evolving standards of decency in a maturing world.

To examine the merit of this contention, Justice Sarkaria referred to the

relevant provisions of the International covenant on civil & political rights. He found
out that those provisions did not abolish or outlaw death penalty. They only required
that death penalty should not be arbitrarily inflicted and that it should be imposed only
for the most serious offences in accordance with a law. The requirements of these
clauses are substantially the same as the guarantee or prohibition contained in Article
20 & 21 of our constitution .

The Penal code provides death penalty as alternative punishment only for
heinous crimes which are not more than seven in number Section 354(3) of Criminal
Procedure Code 1973, in keeping with the spirit of International Covenant, has further
restricted the area of death penalty.

In view of all the aforesaid reasons, the court concluded that death penalty for
the offence of murder under Section 302, Penal Code was constitutionality valid. It
was reasonable also in public interest. However, the constitutional validity of section
354(3) of Criminal Procedure Code 1973 was also challenged on these grounds43

i) (a) Section 354(3) of Criminal Procedure Code 1973 delegates to the court
the duty to legislate in the field of special reasons for choosing
between life and death and

(b) This section did not lay down any rational criteria for imposing death
penalty and therefore it permitted the imposition of death penalty in an
arbitrary and whimsical manner in as much as it does not lay down any
rational principles or criteria for invoking this extreme sanction.
Reliance has been placed on Furman Vs. Georgia.

ii) If section 354 (3) is to be saved from the vice of unconstitutionality, the court
should so interpret it and define its scope that the imposition of death penalty

43 Bachna Singh Vs. State of Punjab AIR 1980 SC 898 at 931.

116
 comes to be restricted only to those types of grave murders and capital
offences which imperil the veiy existence and security of the State (Reliance
of this argument has been placed on Rajendra Prasads case).

A study of the propositions set out in Jagmohan Singhs case will show that in
substance, no change in law has been effected after the decision in Jagmohnas case.
Of course, one proposition in Jagmohans case was that discretion in the matter of
sentence is to be exercised by the Judge judicially after balancing all the aggravating
and mitigating circumstances of the crime. It showed that both the alternative
sentences provided in Section 302, Penal Code were normal sentences, and the court
could therefore, after weighing the aggravating and instigating circumstances of the
particular case, in its discretion, impose either of those sentences. This postulate has
now been modified by section 354(3) which mandates the court convicting a person
for an offence punishable with death or, in the alternative and imprisonment for life or
imprisonment for a term of year not to impose a sentence of death on that person
unless there are special reason to be recorded for such sentence. The expression
special reason in the context of the provision, obviously means exceptional reason
founded on the exceptionally grave circumstances of the particular case relating to the
crime as well as criminal. Thus, the legislative policy now writ large and clear on the
face of section 354 (3) is that on conviction (for murder and other capital offences
punishable in the alternative with death under the Penal Code, the extreme penalty
should be imposed only in extreme case.44

The court also refused to restrict the imposition of death sentence only to the
judicially specified category of cases. It pointed out that standardization of
sentencing discretion was well high impossible due to a number of reasons.
Therefore, the procedure provided in Criminal Procedure Code for imposing death
penalty could not be said to be unfair unreasonable and unjust. Thus the court by
majority of 4 to 1 held that Section 302 of the Penal Code and Section 354(3) of
Criminal Procedure Code were not violative of Article 14, 19 and 21 of the
constitution.

44 Ibid at 935 - 936.

117
 But JUSTICE BHAGWATI has dissenting view on this issue. According to
him Section 302 Indian Penal Code read with Section 354 (3) Criminal Procedure
Code 1973 was unconstitutional for violating Article 14 and 21. He pointed out that
the international trend was towards the abolition of death penalty. He conceded that
the constitution did not prohibit death penalty but recognized it as a permissible mode
of punishment by making certain provisions like Article 21 and 72(1). But the
presence of these provisions did not mean that the infliction of death penalty was
approved by the constitution. They merely implied that capital punishment was not a
forbidden punishment in all cases and if the law providing for this punishment
otherwise passed the test of constitutionality, the specified provisions would come
into operations.

Justice Sarkaria in his majority judgement had taken the view that sentencing
discretion was inherent and desirable and the sentencing process would be unjust
unfair and blindly uniform if this discretion was taken away from the judges. Even
this view was not acceptable to justice Bhagwati. He was of the opinion that since
death penalty was basically different from all other punishments, mainly because of
its irreversible nature, it was not proper to leave the vital question of life and death to
the sole discretion of the courts, unguided and uncontrolled by the legislative
standards.

Justice Bhagwati agreed that the constitution and Criminal Procedure Code
contained certain safe guards to guard against the error in the exercise of Judicial
discretion in the matter of imposition of death penalty. But according to him, such
safeguards were merely peripheral and did not touch the main problem arising from
the lack of principles to guide the exercise of sentencing discretion.

Justice Bhagwati characterized the death penalty as barbarous, inhuman,

positively cruel and psychologically disastrous. He said that death penalty had been
awarded arbitrarily and freakishly in the past by the higher judiciary.

In view of the forceful majority opinion delivered by justice Sarkaria, it was

hoped that the question of constitutionality of death penalty would not be reagitated.
But the strongly worded dissent ofjustice Bhagwati put a question mark on the future
of death penalty in India.

118
 The majority judgement in Bachan Singh continues to hold the fields. Since
then the courts have been administering death penalty with great caution only in the
extreme cases of diabolical, brutal and gruesome, murder committed with pre
meditation which according to them are the rarest of the rare cases of murder.45

Machhi Singh Vs. State ofPunjab46

In this case court reiterated the view expressed by the majority in Bachan
Singh that death penally should be inflicted in the rarest of the rare cases . Speaking
for the Court, Justice Thakkar gave some guidelines for determining the rarest of rare
case. The guidelines related to the manner of commission of murder, the motive for
the commission of murder, anti social or socially abhorrent nature of the crime,
magnitude of the crime and the personality of murder.

Kehar Singh Vs. Union ofIndia47

The question of constitutionality of death penally was also raised by the

supreme court in this case. It was urged in this case while relying on the dissenting
operation of justice Bhagwati that the constitutional validity of death penalty should
be reconsidered. The court rejected the plea holding itself bound by the law laid down
in Bachan Singh.

In Jhumman Khan Vs. State of UP48 once again Supreme Court rejected the
pleas for the reconsideration of the constitutionally of death penalty as unpersuasive
and upheld the views expressed by the majority in Bachan Singh.

Thus the constitutional validity of discretionary death penalty has been

repeatedly upheld by the Supreme Court. The survey of leading cases decided by the
Supreme Court reveals that judicial opinion is in favour of retaining death penalty.
However it does not want its arbitrary use. Precisely for this reasons the court has
ruled that this penalty should be used in the rarest of the rare cases. However, the
strong views expressed by certain Judges in favour of the abolition of death penalty
are bound to have adverse effect on its use.

45 Seervar. HM constitutional law of India Bombay N. M. Tripathi Pvt. Ltd. 1983 Vol. 1882.
46
47

48 AIR 1989 SC 653

119
MANDATORY DEATH PENALTY

Mandatory death penalty simply means that if any one commits certain
offence, he shall be punished with death sentence only. For eg. S. 303 of Penal Code
provided whoever being under sentence of imprisonment for life commits murder
shall be punishable with death. Thus this kind of punishment removes all flexibility
from the sentencing process. By making the offence or offences punishable with
death penalty only, the legislature leaves nothing for the courts. If such an offence is
proved, the courts, have no option except to impose the sentence of death. They can
not exercise this judicious discretion in such matters and the exercise of judicial
review becomes fully mechanical Mandatory death penalty is criticized for a number
of reason. It deprives the judges of the power to exercise their judicial discretion
while sentencing the accused. It is said that this may cause injustice to the accused as
each case in attended by a different set of aggravating, mitigating and causal factors
which must be considered by the Judges in deciding the gravity of the offence and
appropriate punishment. Mandatory death penalty proceeds on an irrefutable
presumption of certain class of offenders to be more dangerous than others. This is
inconsistent with Article 21 in view of Supreme Courts decision in Sunil Batras
case49. Further it is pointed out that mandatoiy death penalty does not stricture
discretion in awarding the death penalty which is the main reason behind its
enactment. These remain discretionary and unstructured choices in the legal
processes at stages prior to and subsequent to sentencing stage. Therefore, it is said
that mandatoiy death penalty merely acts as a disguise for arbitrary and standardless
decision. It is not known that whether it serves the retributive or deterrent purpose of
punishment more effectively than the discretionary death sentence. Instead it strikes
at the administration of criminal justice.

In this connection, it is stated that experience in various countries like

America had shown that some Judges and Juries have an abhorrence of death penalty
and they would rather find a guilty person non guilty, and sending even a non guilty
person to the gallows. Finally, it is urged that mandatory death penalty is
incompatible with evolving standards of decency of a society.

49 Sunil Batra Vs. State (Delhi admn) AIR 1978 SC 1675.

120
 The reasons have led to attack on the constitutional validity of mandatory
death penalty provisions in India as well as abroad.

THE U.S.A. EXPERIENCE

The continuance of death sentence in the United states received a set back in
Furman Vs. State of Georgia56. The Supreme Court by majority held that

Death penalty is administered under the impugned statutes

constituted cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments. It struck down these
impugned statues as unconstitutional for giving
unstructured discretion to the courts in the matter of
sentence. This decision was interpreted to mean that the
court had not declared death penalty per se
unconstitutional. It had only condemned and struck down
its unpredictable and fortuitous use. Consequently, the
legislature of 35 states acted to tighten the law under which
death sentence was to be inflicted to bring them in
conformity with the decision in Furmans case. Two
different approaches were adopted for this purpose.

Some states established new procedure for capital cases requiring the
sentencing judge and Juries to consider certain specified aggravating or mitigating
circumstances of the offence and the offender. There was a bifurcated trial with pre
sentencing. The Court of Appeal was given liberal authority to decide whether the
death sentence was fair in light of the sentences for similar offences. These laws were
intended to reduce arbitrariness and racial prejudice in the imposition of death
sentence which was denounced in Furman. This approach was adopted by many
states including Georgia, Florida and Texas.

On the other hand, some other states including North Carolina, Louisiana and
Oklahoma sought to remove all flexibility from the sentencing process. To meet the
objections raised in Furman, these states provided for mandatory death penalty.
However, the offences for which death sentence was to be imposed were limited. But

50 (1972) 408 US 238.

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anyone found guilty of the specified offences was to be sentenced to death
automatically.

The US Supreme Court considered the question of constitutional validity of

these revised statutes in 1976. By vote of seven to two, the court upheld the
constitutionality of the first mentioned approach. Therefore, the Georgia, Florida and
Texas, the death penalty statutes were upheld as constitutionally valid. While
upholding the constitutionality of these statutes, it was made clear that death penalty
was not inherently cruel and unusual. It was held that the laws of these states had
met the objections raised in Furman. These amended laws ruled out the possibility of
arbitrary or fortuitous infliction of death sentence by the juiy as the legislature had
given adequate guidelines for determining the appropriate sentence.

(b) Constitutionality of mandatory Death Penalty in India:

In India the constitutional validity of mandatory death penalty was considered

by the Supreme Court in Mithu Vs. State of Punjab31. It was contended that section
303 of the Penal Code was unreasonable and arbitrary and violative of Article 14 and
21 of the constitution. The court unanimously held that Section 303 Indian Penal
Code providing for mandatory death penalty was unconstitutional as it violated
Article 14 and 21.

On behalf of the respondents it was contended that the Supreme Court in

Bachan Singh upheld the constitutional validity of death sentence and Section 303
Indian Penal Code only provided for death sentence for a specific category of
murders. Therefore, the question regarding the constitutional validity of Section 303
must be regarded as concluded, in view of the decision in that case.

However, this contention was rejected by the Court as it was not in accordance
with the decision of Bachan Singh Case. It also did not recognize the fundamental
distinction between Section 302 and 303 of Indian Penal Code. Speaking for
majority, Chief Justice Chandrachud pointed out that Supreme Court did not lay
down any abstract proposition that death sentence was constitutional. In fact it was
held that Section 302 of penal code which provided death sentence as one of the two
alternative sentence for murder was constitutional.

51 AIR 1983 SC 473.

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 In questioning the constitutional validity of Section 303 it was contended that
the legislature was not justified in classifying a certain class of murderers under
Section 303 Indian Penal Code. Such classification offended the fundamental right to
equality enshrined in Article 14. It was also argued that Section 303 Indian Penal
Code violated Article 21 of the constitution as the procedure given in that section for
deprivation of life was unjust and unfair. On the basis of arguments the court reduced
the matter for its consideration into the following issues.

(1) Whether there was any intelligible basis for giving different treatment to the
offender under Section 303 Indian Penal Code and whether there was any
nexus between such discrimination and object of the impugned provisions, viz,
the prescription of mandatory death sentence for murders committed by the
life convicts.

(2) Whether a law providing for the sentence of death for the offence of murder,
giving no opportunity to the accused to show cause why that sentence should
not be imposed was just and fair.

(3) Whether such a law was just and fair and it did not require the court to state
the reasons why the extreme sentence of death was called for.

(4) Whether such a law was arbitrary as it required the death sentence to be
imposed under all circumstances.

For judging the violation of Art. 14, the court applied the test of reasonable
classification. It pointed out that similar motivational forces operated on the minds of
the murderer whether the murder was committed by a life convict or any other person.
The murders falling under Section 303 Indian Penal Code deserved same
consideration as those falling under Section 302 Indian Penal Code. The
circumstances that a person was undergoing a sentence of life imprisonment did not
lessen the importance of mitigating factors relevant on the question of sentence. On
the contrary, in certain circumstances, such murderer deserved greater sympathy,
understanding and consideration. Chief Justice Chandrachud Illustrated this by giving
instances of the possible circumstance in which murder may be committed by life

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convict inside or outside the jail precincts while on bail or parole.52 This led the
court to conclude that there was no rational basis to distinguish between the two
classes of murderers namely, the person committing murders while undergoing the
sentence of life imprisonment & other person not under such a sentence while
committing murders.

The court posed the question whether persons could be classified for
mandatory death penalty only on the basis of their being under the sentence of life
imprisonment. If a person had served such a sentence and came out and then he
committed murder, he was not covered by this section. Only a person who was under
such sentence while committing murder had been selected for the mandatory death
sentence, and he was not to get any benefit of judicial discretion in the matter of
sentences. Chief Justice Chandrachud said that this classification was based on an
irrelevant consideration and had no nexus with the object of the impugned provisions,
namely, the imposition of mandatory death penalty.

Further, the court made it clear that unlike other countries, in India there
existed no scientific investigation regarding the behavior of life convicts. In the
absence of such data the court refused to assume that the incidence of murder
committed by life convicts was unduly high. It also refused to accept that life
convicts were and dangerous breed of humanity. Thus, it found that there was no
reasonable ground for treating such murderers differently.

In the light of this reasoning, Chief Justice Chandrachud concluded that

Section 303 of the Penal Code providing for mandatory death sentence did not answer
the test of reasonableness and therefore violated Article 14 of the constitution. For the
first time the law commission of India considered the question of mandatory death
sentence in its 35th Report53. It had agreed that divesting the courts of all discretion in
the matter of sentence did not conform with the modem trends. The commission has
also considered the question of amending Section 303 so as to limit its application to
the persons committing murder while undergoing life sentence imposed for a previous
murder.

52 Chief Justice Chandrachud & Justices Fazal Ali Tulzapurkar Varadarajan and O. Chinnappa Reddy
were on the Bench.
53 Law commission of India: 35th Report on Capital Punishment 1967 Vol. 189-90.

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 But ultimately no change was suggested because the commission felt that the
cases of severe suffering where extenuating circumstances were over whelming could
be sufficiently dealt with under the power of the appropriate government to suspend
remit sentence.54

The Law Commission once again took notice of the anomalous aspect of
Section 303 Indian Penal Code in its 42nd report. This time, however, the infirmity in
Section 303 which attracted the attention of the commission was that person whose
sentence of imprisonment for life was remitted unconditionally by the government
would not be under the sentence of life imprisonment, but if a person was released
conditionally, he could still be held to be under that sentence. This anamaly could
have been removed by restricting the application of this section to life convicts
actually in prison by replacing the words being under by the words whilst
undergoing. But the law commission again chose not to recommend any change
because it felt that Section 303 was rarely applied and an exceptionally hard case
would be easily dealt with the executive under the prerogative of mercy.

Finally, the deletion of Section 303 of Penal code was attempted in the
parliament by the introduction of the Indian Penal Code (amendment) Bill XLIIB of
1972. The joint committee of the Rajya Sabha and the Lok Sabha, to whom the Bill
was referred, recommended the deletion of Section 303 Indian Penal Code and the
dealing of all cases of murder under Section 302 Indian Penal Code. But the Bill
lapsed because of the mid term parliamentary poll and was never revived.

All this led the court to hold that Section 303 of the Penal Code was arbitrary
and oppressive and violative of Article 14 and 21 of the constitution. The court also
directed that all cases of murder be dealt with under Section 302 of the Penal Code.

Justice O. Chinnappa Reddy, in his separate and concurring judgement, said

that Section 303 was an anachronism. It was incompatible with the growing
consciousness and respect for the human rights. It was out of tune with the march of
times and also with the enlightened philosophy of the constitution. The Judicial
review that Section 303 was not based on reasonable classification has been criticized

54 Ibid.

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by Dhar55. Expressing the view that the classification under Section 303 Indian Penal
Code was reasonable and it had a reasonable nexus with the object of the section, he
observed : A lifer convict committing murder is more dangerous than other criminals
committing murder, and so there can be no objection to such classification based on
such a reasonable differential that is obvious and admitted as reasonable and related to
an object of specifying punishment for the same56 He draws support from the
decision of the Supreme Court in Sunil Batra Vs. State Delhi Admit57'. Upholding the
classification based upon distinction between dangerous criminals and ordinary
criminals.

CONCLUSION
Historically speaking, India has never witnessed any movement for the
.abolition of death penalty. But it does not mean that no attempt has been made for its
abolition. In fact a number of attempts have been made to get rid of this extreme
penalty. The constitutional validity of death penalty has been challenged in a number
of cases and this has been done on a number of grounds. The controversy of death
sentence assumed new significance introduced by the Indian Supreme Court in the
interpretation of Article 21 read with Article 14 and 19. The epoch making and
precedent shattering decision of Maneka Gandhi Vs Union of India58 laid down the
doctrine of reasonable procedure for the deprivation, of life and personal liberty. The
Supreme Court held that the procedure for the derivation of life and personal liberty
must be fair, just and reasonable and not fanciful, oppressive or arbitrary.

55 Dhar Panna Lai, Constitution and Penal Code: Mithu Vs. State of Pb. 1983 Cr.L.J. (Journal) 76.
56 Ibid 7.
57 AIR 1978 SC 1675.
58 AIR 1978 SC 597.

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