Holding

Death penalty for murder under Section 302 IPC is constitutionally valid, and Section 354(3) CrPC is valid, but the normal sentence is life imprisonment and death penalty is an exception to be imposed only in the rarest of rare cases.

Summary

The case involved a constitutional challenge to the death penalty for murder under Section 302 of the Indian Penal Code and the sentencing procedure under Section 354(3) of the Code of Criminal Procedure, 1973. The Supreme Court, by a 4-1 majority, upheld the constitutionality of both provisions. The Court held that the right to life under Article 21 is not absolute and that death penalty is a permissible punishment if imposed according to a fair, just, and reasonable procedure. It further held that Section 354(3) makes life imprisonment the rule and death penalty an exception, to be imposed only for special reasons in the rarest of rare cases. The Court laid down broad guidelines for sentencing, considering both aggravating and mitigating circumstances. The dissenting opinion of Justice Bhagwati held that death penalty is arbitrary, unreasonable, and violative of Articles 14 and 21. The Court rejected the challenge and dismissed the appeal, remitting the individual cases for disposal on merits.

Issues considered

Whether death penalty provided for the offence of murder in Section 302, Penal Code is unconstitutional as violating Articles 14, 19, and 21 of the Constitution.
Whether the sentencing procedure provided in Section 354(3) of the Code of Criminal Procedure, 1973 is unconstitutional on the ground that it invests the Court with unguided and untrammelled discretion, allowing death sentence to be arbitrarily or freakishly imposed.
Whether the Supreme Court can lay down standards or norms restricting the area of imposition of death penalty to a narrow category of murders.

Legislation cited

Code of Criminal Procedure, 1973s. 235(2), s. 354(3), s. 366, s. 367, s. 368, s. 369, s. 370, s. 379, s. 432, s. 433, s. 433A
Constitution of Indias. 134, s. 14, s. 161, s. 19, s. 21, s. 72
Indian Penal Code, 1860s. 121, s. 132, s. 194, s. 299, s. 300, s. 302, s. 303, s. 305, s. 307, s. 396, s. 53
International Covenant on Civil and Political Rightss. 6

Subjects

death penaltyconstitutional validityArticle 21Article 19Article 14sentencing discretionrarest of rarelife imprisonmentspecial reasonsfundamental rights

Judgment

145 A

BACHAN SINGH ETC. ETC•

. v. l

STATE OF PUNJAB ETC. ETC. B

May 9, 1980/August 16, i982·

[Y.V. CHANDRACHUD, C.J., P.N. BHAGWATI, R.S. SARKARIA,
A.C. GUPTA AND N.L. UNTWALIA, JJ.] C.
(A} Death Penalty, whether' -constitutionally valid ?-Right to live, whether
the provisions of section 302, Penal Code, offends Article 19 of the Constilution-'
Distinctiop between "Public order" and "Law and Order''-Whether section 302,
Penal Code, violates Article 21, the basic structure of the Constitution and Article
6(I) of the lnternatlona_/ Covenant on Civil .and Political Rights as adoPted by the
General Assembly of the United Nations and reiterated in the Stockholm Declara- D
tion.

' (B) Code of Criminal Procedure, 1973, section 354(3)-1/ section 302,
Pertal Code, is constitution(ll, whether the sentencing procedure provided in sec- ,
lion 354(3) of the Code4 Criminal Procedure, 1973 (Act Tl of 1974) is u~consti·
tutional on the ground that it invests with unguided and untrainmelled discretion
'and allows death sentence to he arbitrarily or freakishly imposed on a person fou~ · E
guilty of murder or any other capital offence punishable under the Indian Penal
. Code with death. or, In the alternative with bnprisonment for life.

(CJ Powers' of the Supreme Court to lay down standards or norms restrict-
ing the area of imposition of death perialty JO a narrow category of murders.
F
Upholding the constitutionality of section 302, Penal Code, and section
354 (3) of the Code of Criminal Procedure Code. the Court.

HELD : Per majority.

Sarkaria, J, [On behalf of Cbandracbud, C.J., AC. Gupta,
N.L. Untwalia, JJ. and on his own behalf], G

The right to Jife is not one of the rights mentioned in Article 19 (J) of
the Constitution and the six fundamental freedoms guarailteed under Article 19(1)
are not absolute rights. The condition precedent for the applicability of Article
19 is that the activity which the impugned law prohibits~and penalises, must be Q
within the purview of and protectioµ of Article 19 (!). [173 E, 174 A, B·CJ
146 SUPREME COURT REPORTS (1983] l S.C.R.

A State of Bombay.v. R.M.D. Chamarbaugwala, [1957] SCR 874@ 920;
Fatechand Himmatlal and Ors. v. State af Maharashtra, [1977] 2 SCR 828@
840 ; A. K. Gopalan v. The State of Madras, (1950] 1 SCR 88, followed.

2. The Indian Penal Code, particularly those of its provisions which
cannot be justified on the ground of unreasonableness with reference to any of the
specified heads, such as "public order" in clauses (2), (3) and (4) is not a law
B imposing restrictions on any of the rights conferred by Article 19 (1). The_re are .
several offences under the Penal Code, such as, theft, cheating, ordinary assault,
which do not violate or affect "public order", but only "law and order". These
offences injure only speci_tic individuals as distinguished from the public at large.
It is now settled that "public order" means "even tempo of the life of the com·
munity". That being so, even all murders do not disturb or affect "public
order". Some murders may be of pure'ty privat~ significance and the injury or
c harm resulting therefrom affects only specific individuals, and, consequently.
"such n1urders may not be covered by "public order" within the conten1plation of
clauses (2), (3) and (4) of Article 19. Such Inutders do not lead tO public dis.order
but to disorder simpliciter. Yet, no rational being can say that punishment of
such murderers is not in the general public interest. It may· be noted that geJ?eral
public interest is not specified as a head in clauses (2) to (4) on which restriction
on the rights mentioned in clause (i) of the Article may be justified. -
[)
,[181D.H,182 A-BJ

The real-distinction between the areas of "law arid order" and "public
order'' lies nofmerely in the nature or-quality of the act, but in the degree and
ex.tent. Violent crimes similar in nature, but committed in different contexts and
circumstances might cause different reactions. A murder committed in given
E circumstances may caUse only a slight tremor, the wave length of which does
not extend beyond the parameters of law and order. Another murder committed
in different context and circumstances may unleash a tidal wave of such intensity~
'iravity and magnitude, that its i1npa<:t throws out of gear the even flow of life.
Nonetheless, the fact remains that for such murders which do not affect •!_public
order~', even the provision for life imprisonmen~ in section 302, Indian Penal
Code, as an alternative punisbm~nt, would not be justifiable under clauses (2),
'F (3) and (4) as a reasonable restriction in the interest of "public order". Such a
construction must, therefore, be avoided. Thus construed, Article 19 will be
attracted only to such laws, the provisions of which are capable of being tested
und<r clauses (2) lo (5) of Article 19, (182 B-E]

G R. S. Cooper v. Union oi
,India, [19701 3 SCR 530; Maneka Gandhi v.
Union of Indio; [1978] 2 SCR 621 ; Dr. Ram Manohar Lohia's case, [19t6) l
SCR 709; Hardhan Saha and Anr. v. State of West Bengal, [1975] 1 SCR 778@
.784, followed.

1

3. From the decided cases of the Supreme Court, it is clear that the
test of direct ·and in,direct effect was not scrapped. Indeed; there is no dispute
H that the test of "pith and substarice" of the subject-1natter and of direct aOd of
incidental effect of legislation is a very useful test to determine the question of
Jegislative compete~~~:~·~.·-~ i.~ ~sc;:~rtainin~ wh~ther ~n Act f~lls 1_.1n~er one Entry
BACHAN SINGH v. PUNJAB 147

while incidentally encroaching upon ailother Entry. Even for determining fhe
validity of a legislation On the grouod of infrlngemen~ of fundamental rights, the
subject- n1atter and the object of the legislation are not altogether irrelevant. For
instance, if the subject· matter of the legislation directly covers any of th.e funda-
mental freCdoms mentioned in Article 19 (I). 1t must pass the test of reasonable:
ness under the relevant head in clauses (2) to (6) of that Article. If the legis-
lation does not directly deal with any of the rights in Article 19 (1), that inay not
conclude the enquiry. It \viii have to be ascertained....further whether by its direct R
and immediate operption, the impugned legislation abridges any of the rights
. enumerated in Article 19 (I). [189 B-D]

The mere fact th3.t the impugned law incidentally, remotely or collaterally
has the effect of abridgiug or abrogating those rights, will no·t satisfy the test. If
the answer to the above queries be in the affirmative, the impugned law in order
to be valid must pass the test of reasonableness under Article lf>. BUt ·if the
c
impact of the law on any of the rights under clause (1) of Article 19 is.merely
in~idental, indirect, remotC or collateral and is dependent upon factors which
may or' may not come into play, the anvil of Article 19 will not be available for
judging· its validity. [190 A-CJ

R.C. Cooper v. Union of India, [1970] 3 SCR 530; Maneka Gandhi v. Union D
of India, [1978] 2 SCR 621; Subrahmanyam_ Chattiar's case, [1940] FCR 188; Ram
Singh v. State of Delhi,. [1951] SCR 451; Express Newspapers (P) Ltd. and Anr. v.
The Union of India & Ors., [1959) SCR 12; Minnesota Ex. Rel. Olson, [1930) 283
U.S. 697@ 698; Sakal Papers (P) Ltd. and Ors. v. The Union of India, [1962) 3
SCR 842; Naresh Shridhar Mirojkor and Ors. v. State ofMaharnshtraond Anr.,
[1966] 3 SCR 744; Bennett Coleman's case, AIR 1973 SC 106, ref~rred to:

4. Sec~ion 299 defines "culpable Jl,omicide" and section 300 defines
culpable homicide amounting to murder. Section 302 prescribeS death or impri~
sonment for life as "Penalty for murder. It cannot, reasonably or rationally, be
contended that any of the rights mentioned in Article 19 (I) of the Constitution.'
• confers the freedom. to commit murder or, for the matter of that, the freedom to
oeommit any offence whatsoever. -Therefore, penal laws, that is to say Jaws which F
<!efine offences and prescribe punishment for the con1mission Or off~nces 'do not
:attrac.t the application of Article 19 (I}. It cannot be said that the object of the
penal laws is generaJly such as not to inv.olve·anY violation of the rights conferred
'by Article 19 (I) because after the decision of this Court in the Bank Nalionalisa· ·
tion case the theory, that (he object and form of the State action alone deterrpine
the extent of protection th3t may be claimed by an individual and that the effect
of the State actiOn on the fundamental right of the individual is irreleva~t; stands G
discredited. But the point· of the matter is that, in pith and substaOce, penal
laws do not deal with the subject~matter of rights enshrined in ·Article 19 (1).
That again is not enough for the purpose of deciding upon the applicability of
Article 19, because eyen if a law does not, in its pith and subStanc~. deal with any
of the fundamental rights conferred by Article' -19 (I), if the direct and irievitable'
effect of the law is such ·as to abridgC or abrogate any of those rights, Article ff
19 (I) shall have to be attracteQ.. ~t W.~lJ~~ ~h~D; l?~~Q~~ necessary tQ t.est th~.
148 SUPREME COURT REPORTS [1983] I S.C.R.

A validity of even a penal law on the touchstone of that Article. On this latter
aspect of the matter 1 it is clear that the deprivation of freedom consequent upon
an order of conviction and sentence is not a direct and inevitable consequence of
the penal Jaw but is merely incidental to the order of conviction and sentence
~hich may or may not come into play. that is to say, which may or may not be
passed. Section 302 of the Penal Code, therefore, does not have to stand the
test of Article 19 (1) of the Constitution. [190 C-H, 191 A-BJ

The onus of satisfying the requirements of Article 19, assuming that
the Article applies. lies on the person challenging its validity. There is initial
presumption in favour of the constitutionality of the statute and the burden of
rebutting that presumption is thrown on the party who challenges the constitu-
tionality on the ground of Article 19. Behind the view that there is a presump- •
c tion of .constitutionality of a statute and the onus to rebut the same lies on
those who challenge the legislation, ·is the rationale of judicial restraint, a
re~ognition of the limits of judicial review, a respect for the boundaries of
legislative and judicial functions, and the judicial responsibility to ·guard the
trespass from one side or the other. The primary function of thC courts is to
interpret and apply the laws according to the will of those who made them and
not to transgress into the legislative domain of policy-making. Even whete the
D burden is on the State to show that the restriction imposed by the impugned
statute is reasonable and in public interest, the extent and -the manner of dis-
charge of the burden necessarily depends on the subject-matter of the legislation,
the nature of the inquiry, and the scope and limits of judicial review.
[192 C-D, 193 A, C-D, 194 D-E]

E '
Saghir Ahmad v. State of Uttar Pradesh, [1955] l SCR 707 ; Kh}"erbari
Tea Co. v. State of Assam &: Ors., A.LR. 1964 SC 925; B. Banerjee v. Anita Pan,
[1975] 2 SCR 774 @ 787 ; Pathumma v. State of Kera/a, [1978] 2 SCR 537;
· Denriis v. United States, 341US494. 525: 95 L.Ed. 1137: 71 S. Ct. 857; Gregg v. 1,..

Georgia, 428 US 153: 49 L.Ed. 2nd 859; State of Madras v._ V.G. Rao, (1952]
SCR 597 @ 607; Jagmo/1an Singh v. State of U.P., [1973] 2 SCR 541, referred
F to.

5. Statistical attempts to assess the true penological value of capital
punishment remain inconclusive. Firs1ly, statistics of deterred potential murderers
are hard to obtain. Secondly, th~ approach adopted by the Abolitionists is
G ove; simplified at the cost of other relevant but imponderable factors, the appre-
•
ciation of which is es.sential to asstss the true renological value of capital punish-
ment. The number of such factors is infinitude, .their character variable, duration
transient and abstract formulation difficult. Conditions change from country to
country and time to time. Due to the inconsistancy of social conditions, it is not
scientifically potsible to assess with any degree of accuracy, as to whether the
H variatioll in the incidence of capital Crime is attributable to the presence or
pbsence of death penalty in the penal law of that c~untry for sucb crimes.
(215 E-H, 216 Al
BACHAN SINGH V, PUNJAB 149

6. To sum up, the question whether or not death penalty serves any A
penological purpose is a difficult, complex and 'intractable issue. It has evoked
strong, diver-gent views. For the purpose of testing the constitutionality of the
impugned provision as to death penalty in sec;tion 302, Penal Code, on the ground
of reasonableness ,in the light of Articles 19 and 21 of the Constitution,
it is not necessary to express any categorical opinion, one way or the
other, as to. which of th~se two antithetical views, held by the Abolitionists
and Retei:itionists, is correct. It is sufficient to say that the very fact B
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
petitioners' argument that retention of death penalty in the. impugned provision,
is totally devoid of reason and purpose. If, notwithstanding the view of the
Abolitioriists to the contrary, a very Jarge 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 0
society, if in the perspective of prevailing crinie conditions in India,,.contemporary
public opinion chanatised through the "people's representatives in Parliament, has
repeatedly in the last three decad~s, rejected all attempts, including the one made
recently, 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 Consti..
tution were' fully aware of the existence of death penalty· as punishment for D
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 3S4 (3) in that Code providing for pre--sentence hearing and sentencing
procedure on conviction for murder another capital offences were before the
Parliament and presumably considered by it when in 1972-73 it took up revision
of the Code of 1898, and replaced it by the~.,. Code of Criminal Procedure, 1973, it ,E
cannot be Said that the provision of cleath penalty as an alternative punishment
J for Inurder, in section 302, Penal Code, is unreasonable aiid not in public interest.
Therefore, the impugned provision in section 302, violates neither the letter nor
the ethos of Article 19. [221 B-H, 222 Al

11-
7. -(I) Neither the new interpretative dimensions given to Articles 19 and
21 by the Supreme Court in Maneka Gandhi, [1978] 2 SCR 621, and Charles
Sobraj v. The SuperinttJndent, Central Jail, Tihar, New Delhi, [1979] 1 SCR 512,
\. nor the acceptance by India of the International Covenant on Civil. and
Political Rights, make'J any change in the prevailing standards pf decency and
human dignity. The International Covenant does not outlaw capital punishment
for murder altogether. [225 C-E]
G
(ii) In accordance with the interpretative princiPie indicated by the
Supreme Court in A1aneka's case, Article 21 will read as "No person shall be
deprived of his life or personal liberly except according to fair, just and reason-
able procedure establlshed by valid law" or in its converse positive form as HA
person may be deprived of his life or personal liberty in accordance With fair, u
just and reasonable procedure established by valid law." Article 21, thus, clearly
•
150 li.iJPllEME COIJJ.<T REPOl!.TS [1983] J S.C.I!..

A brings out the itnplication, that the Founding Fathers reco"gnised the right of the
State to c.Ieprive a person .of his life .or personal liberty in accprdance with fair,
just and reaSonable procedure established by valid law. In vieW of the ·constitu-
tional provisions-Entries I and 2 in List III Concurrent List of Seventh Schedule
Articles 72 (J) (c), 161 and 134-it cannot be said that death penalty under section
302, Penal c'ode, per se or because of its execution by hanging, constitutes an
unreasonable, cruel or unusual punishment. By reason of the same constitutional
8 postulates, it cannot be said that the framers of the Constitution considered death
sentence for murdl!r or the prescribed traditional mode of its execution as a
degrading punishment whi~h would defile athe dignity of the individual'' within
the conten1pla1ion of tht: 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 Cons~itution. [222 E~H, 223 A-B, F·H] •
c (iii) Clauses (1) and (2) of Afticle 6 of the International ·covenant on
Civil and Political Rights do not abolish or prohibit ihe imposition of death
penalty in all circumstances. All that they require is that, firs1ly, death penalty
shall not be arbitrarily inflicted; secondly, it sh11l be imposed only for most
··serious crimes in accordance with a law which shall not be an ex post facto legis·
lation. Thus, the requirements of these clauses are sUb'stantially the same as the
guarantees or prohibitions contained_ in Articles 20 and 21 of our Constitution.
D India's commitment, therefore, does not go beyond what is provided in the Cons~
titulion and the Indian Penal Code and the Crimini!l Procedure Code, The Penal
Code prescribes de~th penalty as an alternati~e punishment cnly for heinous
crimes which are not more than seven in number. Section 354 (3) of the Criminal
Procedure Code,'1973 in keeping with the spirit of the Internationa·l C6venant 1
has further restricted the area of dealh penalty. Illdia's penal laws, including the
,
impugned provisions and their application, are thus entirely in accord with its
E international ·commitment. [224 G-H, 225 A-C]

8. The procedure provided in Criminal Pro6edure Code for imposing
capital punishment for murder and' some other capital crimes under the Penal
Code canndt, by any reckoning, be said to be unfair, unreasonable or unjust. Nor
can it be said that this sentencing discretion, with which the Courts are invested,
F amounts to delegation of its power Of legislation by Parliament. The impugned
provisions do not Violate Articles 14, 19 and 21 of the Constitution.
..
[238 B, G·H, 239 A-BJ

Section 235 (2) of the Code of Criminal Procedure makes not only explicit
what aq:ording to the decision in Jagmohan' s case was in1plicit in the scheme of
the Code, but also bifurcates the trial by providing two hearings, one at the pre-
G conviction stage and another at the pre-!.entence stage. And, section 354 (3) of
the Code marks a significant shift in the legislative policy .under lying the Code,
1898, as in force immediately before April 1, IS74, according to whi"ch both the
alternative sentences of death or imprisonment for life provided for mui'der
' and for certain other capital offences under the Penal Code, were normal
senienccs. Now, according to this changed legislative policy which is patent on
H · the face of section 354 (3), the normal punishment for murder and six other
capital offences under the Penal Code is imprisonment foe life (ot iinprisonment
for a term of years) and d~ath penalty is an exception. [229 F-0, AMB]
BACHAN SINGH V. PUNJAB 151

AlthOugh sub-section _(2) of section 235 of the Code does not Contain a A
specific provision as to evidence and provides only for hearing of the accuSed as
to sentence, yet it is ·implicit id this provision that if a request is made in that
beh<ilf by ~ither the prosecution or the accused, or by b9th, the Judge should give.,
the party or parties _concerned an opporturiity of producing evidence or material
relating to the various factors.bearing on the question of sentence. [230 E-F]

Jagmohan·Singh v, State o[ U.P., [1973] 2 SCR 541, reiterated. B
Santa Singh v. State of Punjab, AIR 1973 SC 2385, referred to.

9. The expression "special reasons" in- the context of section 354 (3)
> • obviously means "exceptional reasons" founded on the exceptionally grave cir-
cumstances of the particular case relating to crime as well as criminal. Thus,
the legislative policy now writ Jarg~ and clear on the face of section 354 (3) is that c
on conviction of murder and other capital offences punishable in the alternat~vc
with death under the Penal Code, the extren1e penalty Should be imposed only in
.
extreme cases. [236 C-D]
~

Bo/want Singh v. State of Punjab, [1976] 2 SCR 684, referred to.
D
10. Section· 235 (2) of the Code provides for a bifurcated trial and
specifically gives the accused person a right of pre~sentence hearing, at which
stage: he can bring on record ma~edal or evidence, Which may not be strictly
relevant to or connected with the pilrticul'ar crime under inquiry, but nevertheless
have: consistently with the policy underlined in section 354 (3), a bearing on the
choice of sentence. The present legislative policy dis~ernible from section 235(2) E.
read with section 35 4(3) is that in fixing the degree of punishment or making lhe
choice of senterice for Various offences, including one under section 302, Penal
Code, t~e Court should D.ot confine its coD.sideration "''princip3.Jly" or "merely"
to the circumstances connected with the particular crime, but also give due con.
sideration to.the circumstances of the criminal. l237 CPE]

11. The Supreme Colirt shot.ild not venture to formulate rigid standards
F
in an area in which the Legislature so warily treads. Only broad guidelines consis.
tent with the policy indicated· by the Legislature can be laid down. But this
much can be said that in order to qualif). for inclusion in the cate8ory of "a8gra·
vating circumstances~' which may form the basis of "special reasons" in section
354(3), circumstances found on the fa..:ts of a particular case, must evidence
aggravation of an abnormal or special degree. [243 &F, 254.B-C] ·
G
Gurbakash Singh Sibbia and Ors. v, State of Punjab, [1980] 3 SCR p. 383,
applied.

Hy"man and Anr. v. Rose, [1912] AC 623, referred to.
H
12. Sections' 354 (3) and 235 (2) and. other related provisions of the Code of
1973 make!t clear that for making the choice of punishment or for. ascertai~ing
,
I
152 SUPREME COURt REPORTS [198~1 I s.c.a.
A the existence or absence of Hspecial reasons" in that context, the Court must pay
due regard both to the critne and the criminal. What is the relative weight to be .
given to the aggravating and mitigating factors, depends on the facts and circum·
stances 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 many cases, the extremely cruel or beastly
manner of the commission of murder is itself a demonstrated index of the
B depraved character of the perpetrator. That is why, it is not desirable to consider
· the circumstances of the crime and the circumstances of the criminal in two
separate water-tight compartments. In a sense, to kill is to be cruel and there-
fore all murders are cruel. But such cruelty may vary in its degree of culpa-
bility. And it is only when the Culpability assumes the proportion of extreme
depravity that "special reasons" can legitimately be said to exist.
. [251 G·H, 252 A-CJ
c Rajemfra Pra&ad v. State of U.P. [1979J 3 SCR p. 78, Bishnu Deo Shaw v.
State of West Bengal, [1979]3 SCR p. 355, overruled.

13. · There are numerous other circumstances justifying the passing of~ the
lighter sentence, as there are countervailing circumstances of aggravation. "We
cannot obviously feed into a judicial computer all such situations since they are
D astrological imponderables in an imperfect and undulating_society." Nonetheless,
it cannnot be over emphasised that the scope and concept of mitigating factors in
the" area of death penalty must receive a liberal and expansive construc-
tion by the courts in accord with the sentencing policy writ large in section
354 (3). Judges should never be blood-thirsty. 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 inflicled the extreme penalty
E 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 dis-
cretion in. so grave a matter. It is, therefore, imperative to voice the concern
that Courts, aided by the broad illustrative guidelines indicated by the Supreme
Court, 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
F tlie 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 instru-
mentality. That ought LOt to 1Je done save in the rarest of rare cases when the
alternative option is unquestion~bly foreclosed. l255 E-H, 256 A-C]

Per Bhagwotl J. (Dissenting)

,, 1:1. Ordinarily, on the principle of stare decisis, Judges would hold them·
G selves bound by the view· taken in an earlier case and resist any attempt at recon-
sideration of the same issue. But, for several weighty and given considera-
·tions, the Court can depart from this ·precedential rule in any particular case.
(258 A-BJ

1:2. The rule of adherence to precedence is not a rigid and inflexible ,. rule
H of Jaw, but it is a rule of practice adopted by the Courts for the purpose of
ensuring uniformity and stability in the law. Otherwise there will be no certainty -
and pre(!ictability in the law,.Ieading to chaos and confusion and in the process
BACHAN SINGH v. PUNJAB 153

destroying the rule of law, and increasing the labour of judges. But this rule of A
adherence to precedents,' though a necessary tool "in the legal smithy," is only
a useful servant and can not be allowed to turn into a tyrannous master. If the
ruie of stare decisis were followed ·blitldly and mechanically, it would dwarf
and stultify the growth of the law and affect its capacity to adjust itself to the
changing needs of the society·. [258 B-C, D,E,F]

1:3 There are certain issues which transcend technical considerations of 8
stare decisis and if such an issue is _brought before the Court,' it would be
nothing short of abdication of its constitutional duty for the Court to refuse to
consider such issue by taking refuge under the doctrine of stare decisis. The
C0urt mRy refuse to entertain such an issue like the constitutional validity of
death penalty because it is satisfied that the previous decision is correct but it
c"nnot decline to consider it on the ground that it is barred by the rul~ of
adherence to precedents. (259 E-G]
c
In the present Case, there are two other supervening circumstances which
·justify; may compel, re-consideration of the decision in Jagmohan's ca~e. The
first is the introduction of the new Code of. .Criminal
. Procedure in 1973, which by
section 354, sub-section (3) has made life sentence the rule, in case of offences
punishable with death or in the altern.ative imprisonment for life and provided D
for imposition of sentence of death only in exceptional cases for special reasons.
The second and the still more important circumstance which has supervened since
the decision in Jagmohan"s case is the new dimension of Articles 14 and 21 un-
folded by the Supreme Court in Maneka Gandhi v. Union of India (l978) 2 SCR
663. This new dimension of Articles 14 and 21 rendefs the death penalty·
provided in section 302 of the Indian Penal Code read with section 354 (3) of the
Code of· Criminal Procedure vulnerable to attack on a ground not available at the E
time when Jagmohan's case waS decided. Furthermore~ since Jagmohan's case
was decided, India bas ratified two international instruments on Human Rights
and particularly the International Covenant on civil and political rights.
(259 G·H, 260 A·D]

Jagmohan v. State of U.P. A.I.R.1973 SC 947, dissented from:
F
State of Washington v. Dawson and Company 264 U.S. 646; 68 L. Edn. 219
dissenting judgment quoted with approval.· _..,.,--

Maneka Gandhi v. Union of India, (1978] 2 SCR 663 applied.

' 2:1. The constitutional validity of the death penalty·provided as an alterna-
G
tive punishment in section 302 of the ·Indian Penal Code read with· section 354
sub-section (3) of the Code of Criminal Procedure cannot be -sustained. Death
penalty does not serve any social purpose or advance any constitutional value
. and is totally arbitrary and unreasonable so as be violative of Articles 14, 19,
and 21 of the Constitution, (256 F, 257 El

Jagmohan Singlt v. State of Uttat Pradesh, AI~ 1973 SC 947, not followed.
H
/
154 SUPREME COURT REPORTS [1983) 1 s.c.R.

A 2:2 The culture and ethos of the natio·n as gathered from its history, it8
tradition and . its literature would clearly be relevant factors in adjudging the
constitutionality of death penalty and so would the ideals and values embodied
in the Constitution which Jays down the basic frame-work of 1hc social and
political structure of the country, and which sets out the objectives and goals· to
be pursued by the people in a common endeavour to secure happiness and welfare
of every member of tpe society. So ~lso standards or norms set by International
8 organisations and bodies have .relevance in determining the constitutional validity
of death penalty and equally important in construing_ and applying the equivocal
. formulae of the Constitution would be the "wealth of non-legal learning and
experienceJhat encircles and illuminates" the topic of death penally. l261 B-E]

• 2:3. The objective of the United Nations has been and that is the standard
set by th~ world body that capital punishment should be .abolished io. all countri'es.
c This nonnative standai"d set t·y the world body must be taken into account in
determining whether the death penalty can be regarded as arbitrary, excessive and·
unreasonable so as to be·con,stitutionally invalid. [268 B-C]

2:4. The Constitution of India is a unique document. It is not a mere
pedantic legal text but it embodies certain human values, cherished principles,
- and spiritual norms and recognises and upholds the dignity of man. It accepts
the individual as the focal point of all development and regards his material,
moral and spiritual development as the chief concern of its various provisions.
It does not treat the individual as a cog in the mighty all-powerful machine of
the State but places him at the centre of the constitutional scheme and focuses on
the fullest development of his personality. The several provisions enacted in the
constitutions for the purpose of ensuring the digni~y of the individual and provid-
E ing for bis material, moral and spiritual development would be meaningless and
iiieffeclual unless there is rule Of law to invest them with life and force.
(268 C-D, G-H)

· 2:5. The rule of law permeates the entire fabric of the Constitution and
indeed forms one of its basic fe<:tlures. T~e rule of law excludes arbitrariness;
its postulate is 'intelligence without passion' and 're-ason freed from desire'.
Wherever we find arbitrariness or unreasonableness there -is denial of the rule of
law. "Law" in the context of the rule of law, does not mean any Jaw enacted
by the legislative authority, howsoever arbitrary or despotic it may be. Other·
wise even under a dictat.orship it would be possible to say that there is rule of
Jaw, because every law made by the dictator howsoever arbitrary and unre!lson·
able has to be obeyed and every action has to be taken in conformity with such
G law. In such a case too even where the political -se.t up is dictatorial, it is law
that governs the relationship between men and men and between men and the
State. But still it is not a fule of law as understood_ in modern jurisprudence
because in jurisprudential teri:ns, the law itself in such a case being an emanation
from the absolute will of the dictator~ (tis in effect and substance the rule of man
and not of"law which prevails in such a situation. What is a necessary element
H of the ruJ,~ of J(lw is thal the law nH;st not be nrbitrary and irrational and it must
Satisfy the test or rea·son and the democratic form of polity seeks to ensure this
element by making the framers of the law accountable to the people. [269 9 A-E)
BACHAN SINGH V. PUNJAB 155

2:6. The rule of law has much greater vitality under our Constitution than A
it has in other countries like the United Kingdom which has no constitutionally
enacted Fundamental Rights. The rule of law has really three basic and funda-
mental assumptions; one is that law making must be essentially in the haods of a
democratically elected legislature, subjec_t of course to any p<Jwer in tbe executive
in an emergent situation to promlllgatc ordinance effective for a short duration
while fhe legislf\tion i<i not in session as also to enact delegated legislation in
B
accordance With the guidelines laid down by the legislature; the other is that, even
in the hands' of a democratically elected legislature, there should not be unfetter7
ed legislative power; and lastly there must be an independent ju~iciary to protect
the citizen against excesses .of executive and legislative power and we have in our
country all .these three elements essential to the rule of law. It is plain and
indisputable that under our Constitution law cannot be arbitrary or irrational and
if it is, it would be clearly invalid, whether under Article 14 or Article 19 or
c
Article 21, whichever be applicable. [275 E-H. 276 A:B] ·

Minerva Mill's case [1981] l SCR 206; Maneka Gandhi's case [1978) 2
SCR 621; Airport Avthority oj J11dia's case f1979J 3 SCR 1014; A.K. Gopalon's
case [1950) SCR 88; F.C. Mullen's case [1981) 2 SCR 516 referred to.
D
2:7. The Constitution does not in so many terms prohibit capital punish-
ment. In fact, it recognises death sentence as one of the Penalties which may be
imposed by la_w. Apart from Article 21, Clause (C)of Article 72 also recogiiises
the possibility of a sentence of death being_ imposed ou a person convicted of an
offence inasmuch as it provides that the President shall have the power to sus-
pend, remit or commute the sentence of any person who 'is convicted of an
offence and sentenced to death, Thereiore, the imposition of death sentence fOr
E
conviction of an offence is not in all coses forbidden by the Constitution. But
that does not· mean that the infliction of .death penalty is blesse~ by the Constitu-
tion or that it has the imprimatur or seal of approval of the Constitution. The
Constitution is not a transien~t ·docuriient but it is meant to endure for a long,
time to .come and during its life, situations may ~rise where death penalty may be
. found to serve a social purpose an~ its prescriptio~ may not be liable to be
regarded as arbitrary or unreasonable and therefore to meet such situatiOns, the F
Constitution had to make a provision and this it did in Article 21 and clause (c)
of Article 72 so that, even where death penalty is prescribed by any Jaw and it is
otherwise not unconstitutional, it must still comply with the requirement of
Article 21 and it would be subject to the clemency power of the P1esident under
I.. clause (c) of Article 72. [276 D·H, 277 A-Bl

G
2:8. From 'the legislative histofy of the relevant provisLons of the lndian
Penal Code and the Code of Criminal Procedure, it is clear that in our country
there has been a gradual shift against the imposition of death penalty. Life sen-
tence is now the rule and it is only in exceptional cases, for special reasons,
that death sentence can be imposed. The legislature has howe·ver not indicated
what are the special reasons fOr which departure can be made from the normal H
rule and death penaHY may be inflicted. The legislature has not giv<:n any gui-
dance as to what are those exceptional cases in which', deviating from the normal
IS6 SUPREME COURT REPoRTS [1983) I S.C.R.
A rule, death sentence may be imposed. This is left entirely to the unguided discre-
tipn of the Court, a-feature, which has lethal con~equences sO'far as the constitu-
tionality of death penalty is concerned. [277 C-D, 278 E-G)

Rajendra Prasad v. State of U.P. [1979] 3 S.C.R. 646, referred to.

B. 2:9. The pro.blem of constitutional validity of death penalty cannot be
appreciated in its proper perspective without an adequate understanding of the
true nature Of death penalty and What it involves in terms of hU.man anguish and
suffering. In the first place, death penalty is irrevocable; it cannot be recalled.
It extinguishes the flame of life for ever and is plainly destructive of the right to
life, the most precious right of all, a right without which enjoyment of no other
rights i.s possible. If a person is sentenced to imprisonment, even 'if it be for life,
c and subsequently it is found that he was innocent and was wrongly convicted, he
can be set free. Of course, the imprisonment that hi has suffered tip then Cannot
be undone and the time he has spent in the prison cannot be given back to him
in specie but he can come back and be restored to normal life with bis honour
vindicated, if he is found innocent. But that is not possible where a person has
been wrongly convicted and sentenced to death and put out-of existence in pur-
suance of the sentence of death. In his case, even if any mistake is subsequently
D discovered, it will be too late, in every way and for every purpose it will be too
late, for he cannot be brought back to life. The execution of the sentence of
death in such a case makes miscarriage of justice irrevocable. [281 F-H, 282 A-D]

2:10. Howsoever careful may be the procedural safeguards, erected by
the Jaw before death penalty can .be imposed, it is impossible to eliminate the •
chance of judicial error. No possible judicial safeguards can p~event conviction
E of the innocent. It is indeed a very live possibility and it is n"ot at all unlikely
that so long as death penalty remains a constitutionaly valid alternative, the
Court or the State acting thrOugh the instrumentality of the Court may have on
its conscience the blood of an innocent man. (283 D-E. G-H]

2:11.- Judicial error in imposition of death penalty would indeed be a
F crime beyond punishment. This is the drastic nat'ure of death penalty, terrifying
in its consequences, which has to be taken into account in determining its consti-
tutional validity. Death penalty is barbaric and inhuman in its effect, mental
and physical upon the condemned man and is positively cruel. Its psychological
effect oil the prisoner in the Death Row is disastrous. (284 E-F]

Furman v. Georgia 408 US 238; .Io Re Kemmler 136 US 436; In Re Medley
G 134 US 160; quoted with approval.

2:12. Penological goals also do not justify the imposit.ion of death penalty
for the offence of murder. The prevailing standards of human decency are also
incompatible with death penalty. The standards of human decency with refe-
H rence to which the proportionality of the punishment to the offence is required
to be judged vary from society to societr depending on the c~lturaJ and spiritual
•
BACHAN SlNGH V. PUNJAB 157

tradition of the society, its history and philosophy and its sense of moral and A
ethical values. [302 A-Bl

•
Moreover, it is difficult to see how death penalty can be regarded as
proportionate to the offence of murder when legislatively it has been ordained
that life sentence shall be the rule and it is only in exceptional cases for special
reasons that death renalty may be imposed, It is oDvious from the provision
B
enacted in section 354 (3) of the Code of Criminal Procedure" that de~th sentence
is legiStativeJy regarded as disproportionate and excessive in most cases of murder
and it is only in exceptional cases that it can at all be contended that death
sentence is proportion.ate to the offence of murder.. But, then the legisla·
ture does not indicate as to what are those exceptional cases in which death
sentence may be re'garded as proportionate to the _offence and, therefore, reason-
' ble and just. Death penalty cannot be regarded as proportionate to the offence c
of murder, merely• because the murder is brutal, heinous or shocking. The
nature and magnitude of the offence or the motive find purposes underlying it.or
the manner and extent of its commission cannot have any relevance to the pro-
portionality of death penalty.to the offence. [304 H, 305 A-D, 306 D-E]

2:13 The, historical course through which death penalty has passed D
in the last 150 years shows that the theory· that death penaJty acts as a greater
deterrent· than life imprisonment is wholly unfounded. Even the various studies
carried. out"clearly establish beyond doubt that death penalty does not have any
special deterrent effect which life sentence does not possesS and that in any event
there is no evidence at all to suggest that death penalty has any such special
· deterrent effect. [316 A, 321 G-H]
E
2:14. Death pena)ty as provided Under section 302 of the Indian Penal
. .I Code read with section 354 sub-section (3) of the Code of Criminal Procedure,
1973 does not sub-serve any legitimate end.of punishment, since by killing the
murderer it totally rejects the reformation purpose and it has no additional
deterrent effect which life sentence does not possess abd it is therefore not
justified by the deterrence theory of punishment. Though retribution or F'
denunciation is regarded by some as a proper end of punishment, it cannot
have 3.ny legitimate place in an enlightened philosophy of .punishment. There~
·.fore, death penalty has no rational penological purpose and it is arbitrary and
irrational and hence violative of Articles 14 and 21 of the Constitution.
, [340 D-F]

G
2:15.' On a plain reading of section ~02 of the Indian Penal Code which
provides death penalty as alternative punish1uent of murder it is clear that it
leaves it entirely to the discretion of the Court whether to impose death sentence
or to award only life in1prisonolent to an accused convicted of the offence of
1nurder. Section 302 does n;t lay. down any standards or principles to guide
the discretion of the Court in the matter' of imposition of death penalty. The ff
critical choice between physical liquidation and life Jong incarceration is left
to the discretion of the Court and no legislative light is shed as to bow this
'

•
158 SUPREME COURT REPORTS (1983] 1 S.C.R.
A . deadly disQretion iS to be exercised. The court is ~eft free to navigate in
cha·rtered sea without any compass or directional gi..Jidance. (341 A·C]

2:16. Actually section 354 (3) Of the Criminal Procedure Code. tnakes the
exercise of discretion more difficult and uncertain. It is left to the Judge to
grope in the dark for himself and i'n the ·{xe~cise of his unguided and un-
fettered discretion decide what reasons may be considered as 'special reasons+
B justifying award of death penalty and whether in a given case· any such special
reasons exist which should persuade the Court to depart from the normal rule
and inflict death penalty on the accused. There being no legislative policy or
principle to guide the Court in exercising its discretion in this delicate and sensi-
tiVe. area of life and death, the exercise of discretion of the Court is bound to
vary from judge to judge. What may apJ,ear as special reasons to one judge
c may not so appear to another. and the decision i.o. a- given case whether to
' .
impose the death senterice or to let off the offender only with life imprison-
a
ment would, to large extent, depend upon who is the judge caHed upon to
make the decision. The reason for his uncertainty in the sentencing process is
two-fold. Firstly, the nature of the sentencin~ proce:s;s is such that it involves a
highly delicate task calling for skills and talents very much different from
those ordiriarily expected of lawyers. Even if considerations relevant to capital
sentencing were provided by the legislature, it would be a difficult exercise for
the judges to decide whether to impose the death penalty or to. award the Jife
sentence. But without any such guidelines given by the legislature, the task of
the judges becomes much nlore arbitrary and the sentencing dechion is bound
to vary with each judge. Secondly, when unguided discretion is confetred upon
the Court to choose bctwet:n life and death, by providing. a totally vague and
indefinite criterion of 'special reasons' without laying down any principles or
guidelines for determining wh<1t should be considered to be 'special reasons',
E the choice is bound to be influenced by the subjective philosophy of the judge
called upon to pass the sentence and on his value system and social philosophy
will dcp~nd whether the accused shall live or die. No doubt the judge will have
to give 'special reasons' if he opts in favour of inflicting the death pcnaitY, but
that does not eli1ninatc arbitrariness and caprice, fir~tly because there being no
guidelines provided by the legislature, the re2sons whicb may appeal to one
judge as 'special reasons' ~ay not appeal to another, and secondly, because
F reasons can always be found for a conclusion that the judge instinctively wishes
.to reach aqd tile judge can bona fide and conscientiously fin~ such reasons to
be 'special reasons'. lt is now recognised on all hands that judicial conscience
is not a fixed conscience; it varies froni judge lo judge depending upon his
attitudes and approaLhcs, his predilections and prejud;ces, his habits of mind and )r
thought and in short all that goes wi1h the exp1cssioo "social philosophy".
Furiller, the \·aric·u~ decisions in which special reasor::s liave been given singly
G and cu1nula1ively indicate not merely that 1hcre is an enormous pOtential of
arbitrarY award of death penally by the High Court and the Supreme Court but
that, in iact, death sentence have been awarded arbitrarily and freakishly.

..
(341 G, E·H, 342 E-H. 343 A·B, 353 E-F]

.H 2:17. But wh..:re :he discretion granted to the Court is to choose between
Ufe and dt:a1h without any standards or guide-lines provided by the legislature,
BACHAN SINGH v. PUNJAB 159

thC: death Penalty does bcc:ome, arbitrary and unr~asonable. T_he death penalty /\
is qualitatively different from a sentence of imprisOnment. Whether a sentence
of imprisonment is for two yeaes or five years or for life, it is qualitatively the
.., same, namely, a sentence of imprisonment, but the death penalty is totally of
different. It is irreversible; it is beyond recall or reparation; it extinguishes life.
It is the choice between life and death wt.ich the court is required to make ·and
this is left to its-sole discretion unaided and unguided by any legislative yardStick
to determine.the choice. [356 G·H. 357 A-BJ · • B

2:18. 'The only yardstick which may be said to have been provided by the
legislature is tliat life sentence shall be the rule and iris only in exceptional cases
for special reasons that death penaltf may be awarded, but it is no where
indicat-ed by the !egislature as to what should b~ regard'ed as 'special reasons'
justifying imposition of death -penalty. The awesome and. fearf~1 discretion c
whether to-kill a man or to let.him live is vesled in the Court and the cOUrt is
-~ called upon to exercise this discretion guided only by its own perception of what
may be r~garded as 'special reasons' without any 1ight shed by the legislature.
It is difficult.to app_reciate how a law which confers· such unguided discretio'n ·
on the Court without any standards or guidelines on so vital an issue jlS the
choice beiween life and de3.th can be regarded as constitution.ally valid. [357B-D]
I)
•
2:19. Death penalty· in its actual operation is discrirpinatory, for it strikes,
mosfly against the poor and deprived sections o( tJ:te community and the rich
and the aftluent usually escape from its clutches. This circumstance also adds
to the arbitrary and capricious nature of the death penalty and renders it un-
• constitutional as being vio'iative of Articles 14_and 21. (3660-H]
,,
3:1. When a law is chailenged on the' ground that it imposes restrictions
on !he freedo~ guaranteed by one or the other sub-clause of clause (1) of Arlicle
19 and the restrictions are shown to exist by the petitioner, the burden of estabii-
shing that the restrictions fall within any of the pennissive clauses (2) to (6) which
may be applicable, must rest upon the State. ThC State would have to produce
·material for satisfyiQg the Court that the restrictions in1posed by the impugned F
law fall w.ith the appfopriate permissive clause from out of clauses (2) to (6) of
Article 19 Of course there ma'y be cases where the nature of the legislation and
1he restrictions imposed by it may be such that the Court may, without more, e~en.
in the absence of any positive n1aterial produced by 'the State, conclude that the
restrictions fall within. the permissible category, as for example, Y.here a Jaw is
enacted by the IE:gislature for giving effect to one of the Directive Principles of
\.
State Policy nod prirna facie, the restrictions imposed by it do not appet'-r to b~ G
arbitrary or excessive. Where such is the position, the burden would again shift
a di! would ·be-for the petitioner to show that the restric~ions are arbitrary Or
excessive and go beyond what is required in public interest. But once it is shown
by the p.:titioner that the impugned law imposes restrictions-which ,'infringe one or
the other .sub-clause of ·clause (I)' of Article t 9, the burden of shoWing that such
restrictions are reasonable 8.nd fall within the permissible category must ~ e on the 11
State and this burden the State may discharge either by pro_ducing socio econo-
pli'!= ~~tti- b~fore the Court or op. ~onsi9efatiop of .the provisions in the impugned
160 SUREME COURT REPRTS (1983] I S.C.R,

A flaw read in the light of the constitutional goals set out in the Directive Principles
of State Policy. The test to be applied for the purpose of determining whether the
restrictions imposed by the impugned law are reasonable or not cannot be cast in
a rigid formula of universal application. The nature of the right alleged to
have been infringed, the underlying purpose of the restrictions imposed. ihe ex·
tent and urgency of the evil sought to be remedied, the value of human life. the
disproportion ofthe imposition, the· social philosophy of the ConStitution and
B the prevailing conditions at the time would all enter into the judicial verdict. And
in evaluating such elusive factors and forming his own conception of what is
reasonable in all the circumstances of a given case, it is inevitable that the social {
philosophy and the scale ot Values of the judge participating in the decision would
play a very important part. [293 G-H, 294 A-G)

State of Madras v. V.J. Row [1952] SCR 597. Shagir Ahmed v. Slate of
c U.P. [1955) .J SCR 707 followed.

Khyerbari Tea Co. v. State of Assam [1964] S SCR 97S; B. Baner}t:e v.
Anita Pan [1975] 2 SCR 774; Ram Krishna Dalmia v. S.R. Tandolkar & Ors.
[1959) SCR 279; State of Bombay v. R.M.D. Chamarbaugwala [1957) SCR 874;
Mahd. Hanifv. State of Bihar [1959] SCR 629; discussed and distinguished.

D t
Pathumma v. State of Kera/a (1978] 2 SCR 537 referred to.

3:2. The position in regard to oLus of proof in a case where the challenge
is under Article 21 is much clearer and much more free from or doubt or debate
than in a case where the complaint is of violation of clause (1) of Article 19.
Wherever there is deprivation of life, i.e. not only physical existence, but also use
•
E of any faculty or limb through which life is enjoyed and basic human dignity, or
, of any aspect of personal 1iber1y, the burden must rest on the State to establish
by producing adequate material or otherwise that the procedure prescribed (or
such deprivation is not arbitrary but is reasonable, fair and just Where therefore
a law authorises deprivation of the right to Hfe, the reasonableness, fairness and
justness of_ the procedure prescribed by it for such deprivation must be establi.
sh~d by thC State. The burden must lie upon the State to show that death
F penalty is not arbitrary and unreasonable and serves a legitimate social purpose,
despite the posgibility of judicial error in convicting and sentencing an innocent
man and the brutality and pain, mental as well as physical, which death sentence
invariably inflicts upon the condemned prisoner. The State must place the nece·
sary material on record for. the purpose of discharging this burden which lies
upon it and if it fails to show by presenting ad(quate evidence before the Court or
otherwise that death peoalty·is not arbitrary and unreasonable.and does serve a
G legitimate social purpose, the impositio~ of d:!ath penalt.y under section 302 of
the Indian Penal Code read with section 354 sub.section (3) of the Code of Crimi·
nal Procedure would have to be struck down as violative of thC protection of
Article 21. (295 A-C, 296 D.E]

3:3. There is a presumption iri favour of lhe constitutionality of a statute
H and the burden of showing that it is arbitrary or discriminatory lies npon the ''
petitioner, because it" must be presumed tba,t tbe Je~islature '111derstand.s and
\
BACHAN SINGH v. PUNJAB 161

correctly appreciates the needs of its own people, that its laws are directed to
problems made manifest by experience and that its discriminations are based on
A ..
adequate grounds. It would be a wise rule to adopt to presume the constitutio-
nality of a statute unless it is ·shown to be invalid. But this ·rule is not a rigid
inCxorable rule applicable at all times and in all situations. 'I)lere may concei-
vably be cases where having regard to the nature and character of the legislation.
the importance of the right affected and the gravity the injury caused by it and
the moral and social issqe involved in the determination, the Court may refµse t.o B
proceed on the basis of presumption of constitutionality and demand from the
State justification of the legislation wHh aview to establishing that ·it is not arbit·
rary or discriminatory. [296 G-H, 298 C-E]

The burden rests on the State to establish by producing material before
the Court or authorities, that death penalty" has greater deterrent effect than life
sentence in order to justify its -imposition uD.der the law. If the State faiJs to
c
discharge this burden which rests upon it, the Court would have to hold that
· death penalty has not beCn shown to have greater deterrent effect and it does not
thcref9re serve a rational legislative purpose. [315 F-H]

• CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 273 D
of 1979.
Appeal by special leave from the Judgment and Order dated .
the 14th August, 1978 of the Punjab & Haryana High Court in
Criminal Appeal No. 234 of 1978)

E
WRIT PETITIONS NOS. 564, 165, 179,
168, 434, 89, 754, 756 & 976 of 1979.

(Under Article 32 of the Constitution of India)

AND ,
Special Leave Petition (Criminal) No. 1732 of 1979

R.K. Jain, R.P. Singh, Shiv Kumar Sharma, Suman Kapoor and
Sukumar Sahu for the Petitioner. in WY. 564/79.
G
Dr. Y.S. Chitale, Mukul Mudga/ and A.K. Ganguli for the
Petitioner in W.P. No. 165 of 1979.
; Vimal Dave and Miss Kai/ash Mehta for the Petitioner in
W.P. 179 of 1979. H
WP. Nos. 168 & 89 of 1979 :. Jail
. . -
Petitions
' .'
162 SUPREME COURT REPORTS (1983] I s.c.R.

A H.K. Puri, A.C. for the Appell8i:tt in Cr!. Appeal. '
I
S.S. Khanduja and La/it Kumar Gupta for the Petitioner in
W. P. No. 434 of 1979.

L.N. Gupta for the Petitioner in S. L.P.
B
L.M. Singhvi and S.K. Jain for the Petitioner in WP. 754 f79.

Harbans Singh for the Petitioner .in W.P. 756/79.

N.'D. Garg for Mr. S.K. Bisaria and T.L. Garg for the Peti-
tioner in WP. 976 of 1979,
c
Soli J. Sorabjee, Sol: Genl. in \VP. 564 & 165- U.R. La/it,
in WP. 564 ; for U.0.1., R.N. Sachthey, for U.O.I., Gujarat,
Haryana States, M.L. Shroff' for Gujarat, Haryana . &
Maharashtra, Miss A. Subhashini, and Mr. K.N. Bhatt, for
U.O.~. for Respondent No. I in WPs. 554, 179, R. 2 in WPs. 434'
D & 754, R. l in WP. 165, R. 3 in WP. 756, R. 2 in WPs. 564 & 165.
R in 168 & 89; RR I & 2'in WP. 756 and RR I and 3 in WP. 754
of 1979.

D.P. Singh Chauhan, Addi. Advocate General, U.P. and
O.P. Rana for R. 2 in WP. 179.
E
R.S. Sodhi and Hardev Singh for R. I in WP. · 434 & Respon-
dent in Crl. A.'273 of 1979.

R.S. Sodhi for Respondent No. 3 in WP. 434/79.

·· R.L. Kohli and R.C. Kohli for the compalinant in WP. 754/79.
F
D.P. Mukhe1jee for the Intervener No. I.

Dr. LM Singhvi f~r the Intervener No. 2.
0

Intervener 'No. 3 in i
"
• person .

G V.J. Francis for the intervener No. 4.

R.K. Ga~g and R. K. Jain for the intervener No. 5.
+
FOR THE ADVOCATES GENERAL:
H
J. Andhra Pradesh ; P. Ramachandrq Reddy, Advocate General
'·
A.P. Rao and G. Narayana
.,
'!
' BACHAN SINGH v. PUNJAli (Sarkaria, J.) 163
. \
I ,

2. Gujarat D.V. Patel, (Maharashtra) A
&
' .i
3. Maharashtra R.N. . Sachthey, (Gujarat) M.N, Shroff,
Gujarat & Maharashtra

4. Jam mu & Alta/ Ahmed B
Kashmir

5. Madhya s:K. Gambhir
Pradesh
:/~
r ' ..,
6. Punjab R ..S. Sodhi and Hardev Singh
c
7. Orissa '
G.B. Patliaik, Advocate General ·and
~ R.K. Mehta

8. Tamil Nadu A.V. Rangam ·

;.- 9. West, Bengal Sukumar G~osh and G.S. Chatterjee D
The following Judgments were delivered :

SARKARIA, J. This reference to the Constitution Bench raises a
question in regard to the constitutional validity of death penalty for
murd~r proyided in Section 302, Penal Code, and the sentencing E
procedure embodied in sub-section (3) of Section 354 of the Code
of Criminal Procedure, 1973. '

The reference has arisen in these circumstances :

Bachan Singh, appellant in Criminal Appeal No. 273 of 1979,
was tried and conviCted and sentenced to death. under Section 302, .F
Indian Penal Code for the murders of Desa Singh, Durga Bai and
Veeran Bai by the Session~ Judge. The High Court con.firmed his.
death sentence and dismissed his appeal.

Bachan Singh's appe~l by special leave, came up for hearing
1., before a Bench of this· Court (consisting of Sarkaria and Kailasam,. . G
JJ.). The only question for consideration in t~e appeal was,
whether the facts found by the Courts below would be · "special ·
reasons" for awarding the death sentence as requi~ed under Section
Jr ~ 354(3) of the Code of Criminal Procedure 1973 ..
H
Shri H.K. Puri, appearing as. Amicus Curiae on behalf of the
appellant, Bachan· Siniih, in criminal Appeal ,No. 273 of 19791.
"
164 · SUPRBMB COURT RBPOllTS (1983) 1 s.c.a..

A contended that in view of tile ratio of Rajendra Prasad v. State of
U.P.,(1) the Courts below were not competent to impose the extreme
' penalty of death. on the appellant. It was submitted that neither the I<
circumstance that the appellant was previously convicted for murder
and committed these murder after he had served out the life sen·
tence in the earlier case, not the fact that these three murders were
B extremely heinous and in.human, constitutes a "special reason" for
·ip:iposing the death sentence within the meaning of Section 354(3)
of the Code of Criminal Procedure 1973. Reliance for this argu-
ment was placed on Rajendra Prasad (ibid) which according to the
counsel, was on facts very similar, if not identical; to that case.

c 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('), inter alia, on
these aspects :
D (i) In Rajendra Prasad, V.R. Krishna Iyer, J. observed:

"The main focus of our judgment is on this poignant
gap in 'human rights jurisprudence' within the limits of the
Peul Code, impregnated by the Constitution. To put it
pithily, a world order voicing the worth of the human per-
'E son, a cultural legacy charged with compassion; an inter-
pretative liberation from colonial callousness to life and
liberty, a concern for social justice as setting the sights of
individual. justice, interest with the inherited text of the
Penal Code to yield the goals desiderated by the Preamble
and Articles 14, 19 and 21."
F
According to Kailasam, J., the challenge to the award of the
death sentence as violative of Articles 19, 14 and 21, was repelled by
the Constitution Bench in Jagmohan's case.

(iil In Jagmohan' s case, the Constitution Bench held :
G
"The impossibility of'laying down standards (in the
matte'r of sentencing) is at the very core of criminal law as
administered in India which invests the judges with a

H o> [t979J 1 sec 646,
12> [t973J 2 s,c,R. 54!,
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 165

very wide discretion in the matter of fixing the degree of
A
punishment and that this · di-scretion in the matter of sen-·
· tence is liable to· be corrected by superior Courts... The
exercise of judicial discretion on well recognised principles
is, in the final . analysis, the safest P.ossible safeguard for the
accused." B

In Rajendra Prasad, the majority decision characterised the
above observations in'/ agmohan as: "incidental observations without
concentration on the sentencing criteria", and said that they are not
the ratio of the decision, adding._ "Judgments are not Bible for
every line to be venerated." c

(iii) ·in Rajendra Prasad, the .plurality observed :

"It is constitutionally permissible to swing a criminal
out of corporeal existence only if. the security of State and . D
society, public order and the interests of the general public
compel that course as provided in Article 19(2) to (6)." •

This view again, according to Kailasam, J., is inconsistent with the
1aw laid down bi the Constitution Bench in Jagmohan, wherein it
was held that deprivation of life is constitutionally permissible if E
that is done according to "procedure established by law".

(iv) In Rajendra P!asad, the majority has further opined :

"The only correct approach is to read into Section 302~ F
I.P.C. and Section 354(3) Cr. P.C., .the human rights and
humane trends in the Constitution. So examined, the rights
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.':
G
Against the above, Kailasam; J. commented : 'The only change
after the Constitution Bench delivered its' judgment is the introduc-
_tion of Section 354(3) which requires special reasons to be given if
4
the Court is to award the death sentence. If without the restriction
of stating sufficient reasons death sentence could be constitutionally ff
awarded under the I.P.C. and Cr. P.C. as it stood before the amend-
ment, it is difficult to perceive how by r~quiring special reasons to
166 SUPREME COURT REPORTS [1983) 1 s.c.R:
' .
A be given the amended section would be· unconstitutional unless the
"sentencing sector is made most restrictive and ']east vag~rious ".

(v) In Rajendra. Prasad, the majority has held that :

"Such extraordinary grounds alo.ne Constitutionally
8 qualify as special reasons as leave no option to the Court
but to execute the· ' offender i.f State and society are to sur-
'

vive. One stroke of murder hardly qualifies for this drastic
requirement, however, gruesome the killing or {lathetic the
situation, unless tbe inherent· testimony coming from that
act is irresistible that the murderous appetite of the convict
c is too chronic arid deadly that ordered life in a given locality
or s~ciety or in prisqn itself would be gon~ if this man were
now or later to .be at large. If he is an irredeemable, like
a bloodthirsty tiger, he bas to quit his terrestrial tenancy,"

D · According to Kailasam, J., what is extracted above, runs
directly counter t'o and cannot be reconciled with the following
observations in Jagmohan' s case :

"But some (murders) at least are. diabolical in concep-
tion and cruel in execution.. In some others where the
IE victim is a person of h,igh s\anding in the country, sodety
is liable to be recked to its very foundation. Such murders
cannot be simpiy wished aw~y by finding alibis in the
social maladjustment of the _ murderer. Prevalence
of such crimes spea~s, in the opinion of iµany, for the
inevitability of death penalty not only by way of deterrence
F but as a token of emphatic disapproval by the society ...
, A very responsible body ·(Law Commission) has come io
__;..-
the conclusion after considering all the relevant factors.
On the conclusions thus offered to us, it will be difficult
to hold that capital punishment as such is unreasonable or
•
not required in the public interest."
G
(vi) Kailasam, J. was further of the opinion that it is
equally beyond the functions of a Court to evolve
· "working rules for imposition of death sentence bear'
H ing the markings of enlightened flexibility and social
-"sensibility" or to make law · "by cross-fertilisation
iiAi::iIAN SINGH i•. PUNiAB (Sarkaria, J.) i 67

from sociology, history, cultural anthropology and A
curfent national perils - and developmental goals and,
above all, constitutional ·currents''.· Thi~ function, in
his view, belongs only to Patliament. The .Court must
administer the law a's it stands.
B
{vii) The learned Judge bas further expressed ·that the view
taken by V.R. Krishna Iyer, J. in Rajendra Prasad that
" 'special reasons' necessary for imposing death penalty
must relate· not to t_he crime as such, but to the crimin~l"
is not warranted by the law as it stands today.

Without expressing his own opinion on the various qullstions
c
'
-A. raised in ·that case including the one with regard to the scope,
amplification ·and application' of Section 354 (3) _of the Code of
Criminal Procedure, 1974, Sarkaria, J., in agreement with Kailiisam,
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 D
doubts,. difficulties
, a~d inconsistencies pointed out by Kailasam, J."

In the meanwhile, several persons convicted of murders and ·
sentenced to death; filed writ p~titions (namely, Writ Petitions 564,
165, 179, 434, 89, 754, 756 and 976 of 1979) under Article 32 of the
<:;onstitution directly challenging the constitutional validity of the E
death penalty pr,ovided in Section 302 of the Indian Penal Code t'or
the offence of murder, and the sentencing procedure provided in
Section 354 (3) of the Code· 6f Criminal Procedure, 1974. Tllat is
how, the matter has now come up before this larger Bench of five
Judges. '

At the outset, Shri.R.K. G~rg.submitted with some vehcmance
and ·persistence, that Jagmohan' s case needs · reconsideration by a
larger Bench if riot by the Full Court. Reconsideration of Jagmohan,
according to the learned counsel, is necessitated because of subse-
quent events and changes in law. Firstly, it is pointed out that when
" .G
Jagmohan wa• decided in 1972, the then extant Code of Criminal
Procedure, 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 Code of Criminal Procedure, 197 3, death H
sentence bas ceased to be the normal penalty.for murder. Secondly,

..
•
168 SUPllEMB COUllT REPORTS [1983) I s.c.11.

A it is argued, the seven-Judge decision of this Court in Maneka
Gandhi v, Union of India(') Las given a new interpretative dimension
of the provisions of Articles 21; 19 and 14 and their inter-relation·. ·
ship, 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. It is stressed that an argument founded
B on this expansiv~ interpretatio!I of these Articles was not available
when Jagmohan was decided. 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 in December 16, 1976. By virtue of this
Covenant. India and the other 47 countries who are a party
c to it, stand committed to a policy for abolition of the 'death
penalty'.

Dr. L.M. Singhvi submitted that the question of death penalty
cannot be foreclosed for ever on the .abstract doctrine· of stare
D decisis by a previous decision of this Court. It-is emphasised that
the very nat~re of the problem is such that it must be the subject . ·
of review from time to time so as to be in tune with the evolving
standards of decency in a maturing society.

The learned Solicitor-General, Shri Soli Sorabji opposed the
E request of Shri Garg for referring the matter to a larger Bench ·
because .such a course would only mean avoidable delay in disposal
of the matter. At the same time, the learned counsel made it clear
that since the constitutionality of the death ·penalty for murder was
now sought to be challenged on additional arguments based on
subsequent events and changes in law, he would have no objection
F on the ground of Slare decisis, to a fresh consideration of the whole
problem by this very Bench.

In view of the concession made by Shri Sorabji, we proceeded
to hear the counsel for the parties at length, and to deal afresh with •
the constitutional questions concerning death penalty raised in these
G writ petitions.

We have heard the arguments of Shri R.K. Garg, appearing
for the writ-petitioners in Writ Petition No. 564/79 for more than

H
three weeks and also those of Dr. L.M. Singhvi, Dr. Chitaley and ,
(I) [1978] 2 S.C,R. 621.
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 169

J S/Shri Mukhoty, Dave and R.K. Jain, appearing for iriterveners or". A
for the other writ-petitioners.

We have also heard the arguments of Sbri Soli Sorabji, Solici-
tor-General, appearing for the Union of India and Sbri Patel appear-
ing for the State of Maharashtra and the other counsel appearing
B
for the respondents.

The principal questions that fall to be considered in this case
are! •

(I) Whether death penalty provided for the offence of
murder in Section 302, Penal Code is unconstitu•
c
tional.
•
(II) If the answer to the foregoing question be in the nega-
tive, whether the . sentencing procedure provided in .
Section 354 (3) of the Code of Criminal Procedure, D
1973 (Act 2 of 1974) is unconstitutional on the ground
that it invests the Court with unguided and untram-
melled discretion and allows death sentence to be
.arbitrarily or freakishly imposed on a person found
guilty of murder. or any other capital .offence punish-
able under the Indian Penal Code ·with death or, in the E
alternative, with imprisonment for life.

We will first take up Question No. i'll relating to the cbnstitu-
!ional validity of Section 302, Penal Code.
F
Question No. (/) :

Before dealing with the contentions canvassed, it will be useful
to have a short._survey of.the legislative hi~tory of the provisions of
the Penal Code which permit the imposition of death penalty for
certain offences. G

The Indian Penal Code was drafted by the First Indian Law
Commission presided over by M~. Macaulay. The draft underwent
further revision at the hands of well-known jurists, like Sir Barnes H
Peacock, and was completed in 1850. The Indian Penal Code was
t1o SUPREME COURT REPO~.TS
I
[19~3] i s.c.lt.

A passed by the then Legislature on October 6, 1860 and was enacted
as Act No XLV of 1860.

Section 53 of the Penal Code enumerates punishments to
which offenders are 'liable under the provisions of this Code. Clause
Firstly of the Section mentions 'Death' as one of such punishments.
B Regarding 'death' as a punishment, the authors of the Code say :
"We are convinced that it ought to be very sparingly infli.cted, and
we propose to employ it only in cases whe.re either murder or the
highest offence against the State has been com milted." Accordingly;
under the. Code, death is the punishment that must be awarded for
murder by ·a person under sentence 'of imprisonment for life (Section
c 303). This apart, the Penal Code prescribes 'death' as an alternative
punishment to which the offenders may be sentenced, for tl1e follow-
ing seven offences : •

(I). Waging
.
war against the Government
~ .
of India< (s. . 121)

D (2) Abetting mutiny actually committed. (s. 132)

(3) Giving or fabricating fa.lse evidence upon which an
innocent person suffers death. (s., 194)
/

(4) Murder which may be punished with death or life
E imprisonment. (s. 302)

(5) Abetment of suicide of a minor or insane, or intoxi-
cated person. (s. 305)

(6) Dacoity accompanied with murder. '(s. 396)

F (7) Attempt to mu~der by a person under sentence of
imprisonment for life if hurt is caused. (s. 307)

In the instant cases, the impugned provision of the Indian
Penal Code is Section 302 which says : '"Whoever commits murder
shall be punished with death, or imprisonment for life, and. also . be
G liable to fine." The related provisions are contained in Sections 299
and 300. Section 299 . defines 'culpable homicide'. Section 300
defines 'murder'. Its material part runs as follows :

"Except in the cases hereinafter ·excepted, culpable homicide. is
H , -'murder, if the act by which the death is caused is done with the
' .
intention of causing death, or
•

I
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 171

Secondly-If it is done with the intention of causing such A
bodily injury as the offender knows to be likely to cause death of .
the person, to whom the harm is caused, or

·Thirdly-If it is do~e with the intention of causing bodily
injury to any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause dea,th, or B

Fourthly-If the person committing the act knows that 1t 1s
so imminently dangerous that it must, in all orobability, cause death,
or sucb bodily injury as is likely to cause death, and commits,
such act without any excuse for incurring tlic risk of causing death
or such injury as aforesaid." . c
The first contention of Shri Garg is that the provision of death
penalty in Section 302, Penal Code offends Article 19 of the Consti·
tution. ·It is submitted that the right to live 'is basic to the
enjoyment of all the six freedoms guaranteed in clauses (a) to (e)
D
and (g) of Article 19 (!)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.·or the individual so solemnly vouchsafed in the
Prea!"ble ?f the Constitution, its imposition must be regarded as an
'unreasonable.restriction' amount.ing to total prohibition, on the six
E
freedoms guaranteed in Article, 19 (1).

Article 19, as in force today, reads as under :

"19 (! ). All citizens shall have the right-
F
(a) to freedom of speech and expression ;

.(b) to assemble peaceably and without. arms ;

(c) to form associations or unions ; •

(d) to move freely throughout the territory of India ; G
(e) to reside and settle in any part of the territory
of India;
(f) ............ '
H
172 SUPREMB COURT REPORTS (1983] I s.C.R

A (g) to practice any profession, or to carry on any
occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (I) shall affect the
operation of any existing law, or prevent the State
from making any law, in so far as such law_ imposes
B reasonable restrictions on the exercise of the right con-
ferred by the said sub-clause in the interests of the
sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public
order, decency or morality, or in relation to contempt
of court, defamation or incitement to an offence. •
c
(3) Nothing in sub-clause (bl of the said clause shall affect
the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in
the interests of the sovereignty and integrity of India
or public order, ~easonable restrictions on the
D exercise of the right conferred by the said sub-
clause. t
'
(4) l'!othing in sub-clause (c) of the said clause shall affect
the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in
E the interests of the sovereignty and integrity of India
or public order or morality, reasonable restrictions on
the exercise of the right , conferred by the said sub-
clause.

(5) Nothing in sub-clauses (d) and (e) of the said clause
shall affect the operation of any existing law in so far
as it imposes, or prevents the State from making any \. /
law imposing, reasonable restricti.ons on the exercise /', '

of any of the rights, conferred by the said sub·clau.ses
either in the interests of the general public or for the
G protection of the interests of any Scheduled Ttibe. .
(6) Nothing in sub-clause (g) of the said clause shall
affect the operation of any existing law in so far as it
i~poses, or prevents the State from making any law
H imposing; in the interests of the general public, rea-
sonable restrictions on the exercise of the right con-
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 173

ferred by the said sub-clause, and in particular, nothing
A
in the said sub-clause, shall affect the operatipn of any
existing law in so far as it relates , to, or prevent the
State from making any law relating to,-
·.
(i) the professional or technical qualifications neces- B
. sary for practising any profession or .carrying
on a 0y occup!ltion, trade or. business, or

(ii) the carying on by the State, or by a corporation
owned or controlled by the State, of any tra<le,
business, industry or service, whether to the exclu- c
sion, complete or . partial, of citizens or other-
wise.''

""'
It will be seen that the first part of the Article declares the
rights in clause (I) comprising of six sub-clauses namely, (a) to (e)
D
and (g). The second part of the Article' in its five clauses (2) to (6)
specifies the limits upto which the . abridgement of the rights
declared in one or more of the sub-clauses of clause (!), may be
· permiUed: Broadly speaking, Article 19 is intended to protect the
rights to the freedoms specifically enumerated in the six sub-clauses
of clause(!) against State action, other than in the legitimate exercise
E
of its power to regulate these rights in the public interest relating to
heads specified in clauses (2) io (6). 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 F
principle sic utere tuo ut alienum non laedas. Secondly, under
clauses (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 righrs.

\.
The power, if properly exercised, is itself a safeguard of the G
freedoms guaranteed in clause (!). The conferment of this power is
founded on the fundamental truth that uncontrolled liberty entirely
• freed from restraint, degenerates into a licence, leading to anarchy
and chaos; that libertine pursuit of liberty, absolutely free, and .free
B
for all, may mean liberticide for all. "Liberty has, tllerefore," lls
114 SUPREME COURT REPORTS [1983] I ,s.c.R.

A_~ Justice Patanjali Sastri. put it, "to be limited in order to be
effectively possessed."

It is important to note that whereas Article 21 expressly deals
with the right to life and personal liberty, Article 19 does not. The
right to life is not one of the rights mentioned in Article 19 (1).
B
' The first point under Question (I) to be considered is whether
Article-19 is at all applicable for judging the validity of the impugned
provision in Section 302, Penal Code. ·

As rightly pointed out by- Shri Soli Sorabji, the' condition
c· pr.ecedent for the applicability of Article 19 is that the activity which
the impugned law prohibits and penalises, m'ust be within the purview
and protection of· Article 19 (1). Thus considered, can any one say
that be bas a legal right or fundamental freedom under Article 19 (I)
to practise the profession of a hired assassin or to form associations
- or unions or engage in a conspiracy with the object of committiqg
D murders or dacoities. The argument that the provisions of the
Penal Code, prescribing death sentence as an alternative penalty for
murder have to be tested on
the ground of Article 19, appears to
proceed on t!ie fallacy that t.he freedoms guaranteed by Article 19
( l) are absolute freedoms and they cannot be curtailed by law
imposing reasonable restrictions, which may amount to total prohi- ·
.. bition. Such· an argument was advance~ before the Constitution
Bench in The State of Bombay v. R.M.D. Chamarbaugwala.(') ·In
that case the constitutional validity of certain provisions 'of the ...
Bombay Lotteries and Prize Competition Control Act, 1952, as
amended by Bombay Act No. XXX of 1952, was challenged on the
F ground, inter alia, that it infringes the fundamental rights of the.
promoters of such competitions under Article 19 (l) (g), to carry
on their trade or business and that- the restrictions imposed by the
said Act cannot possibly be supported as reasonable restrictions in >c-'
the interest of the general public permissible under Article 19 (b).
It was. contended that the woi"ds "trade" or ·"business" or
G "commerce" in sub-clause ·(g) of Article 19 (a} should be read in
their widest amplitude as any activity which is undertaken or carried
on with a view to earning profit. since there is nothing irr Article I 9
(I) (g) which may qualify or cut down the meaning of the critical
words ; that ther<> is no justi~cation for. excluding from the meaning
H
(1) [1957] S.C.R. 874 at p. 920, .

•
BACHAN SINGH \', PUNJAB (Sarkaria, J.) 175

of those words activities which may be looked upon with disfavour A
by the State or the Court as injurious to public morality or public
interest. Speaking for the Constitution. Bench, S.R. Das, C.J.
repelled this contentio!', in these terms :

"On this argument it will follow that criminal activities
undertaken and carried on with a view to earning profit B
will ·be protected as fundamental rights until they are
restricted by 1aw. Thus there wm be a guaranteed right to ,
.carry on a business of hiring out goondas to ·commit assault
or even murder,' or house-breaking; or selling obscene
pictures, ·of trafficking in women and so on until the law
I
curbs or stops such activities. This appears to us to be c
completely unrealistic and incongruous, We have no doubt
that there are certain activitie.s which can. under no cir-
cumstance be regarded as trade or business, or commerce
, although the usual forms ~nd instruments are employed
therein. To exclude those activities from the meaning of
those words is not to cut down their meaning at all but.to D
say only that they are not within the true meaning of those
words."

This approach to the problem still holds the field. The observations
in Chamarbaugwala, extracted above, were recently quoted with
approval by V.R. Krishna Iyer, J., while defivering "the judgment E
of the Bench in FC!_tehchand Himmatlal & Ors. v. State of Maha-
rashtra('). -

In A.K. Gopalan v. The State of Madras (2 ), all the six learned
Judges constituting the Bench held that punitive detention or
imprisonment awarded as punishment after conviction for an offence
F
under the Indian Pelial Code is outside the scope of Article 19,
although this conclusion was reached by them by adopting more or.
less different approaches to. the problem. · ·

It was contended on b~half of A.K. Gopa/an !hat since the
preventive detention order results in the detention of the detenu in a G
cell, his rights-specified in clauses (al to (e) and {g) of Article 19 {I)
· have been infringed.
.
.

(1))1977] 2 SCR 828 at p, 840. H
!
<2) [ 9603 1sq. 88,
176 SUPREME COURT REPORTS (1983) J S.C.R,

A Kania, CJ. rejected this argument, inter a/ia, on these
grounds :

(i) Argument would have been equally applicable to a case
of punitive detention, and its acceptance would lead to
absurd results. "In spite of the.saving clauses (2) to
B (6), permitting abridgement of the rights connected
with each ·other, punitive detention under several
sections of !he Penal Code, e.g. for theft, cheating,
forgery and even ordinary assault, will· be illegal,
• •
(because the reasonable restrictions in the interest of
"public order" mentioned in clauses (2) to (4) of the
c Article would not cover these ~(fences and many other
crimes under the Penal Cqde which injure specific
individuals and do ·not affect the community or the public
at large). Unless such cimclusion necessarily follows
from the article, it is obvious that such construction '
should be avoided. In my opinion, such result is
D clearly not the outcome of the Constitution."

(The underlined words within brackets supplied.) (At
page JOO of the Report)

E (ii) Judged by the test of direct and indirect effect on the
w
rights referred to in article 19 (1), the Penal Code is not
a law imposing restrictions on these rights, The test is
that "the legislation to be examined mu.st be directly in
respect of one of the rights mentioned in the sub-
clauses. If there is a legislation directly attempting to
F control a citizen's freedom of speech or expression
or his right to assemble peaceably and without arms,
etc., t)le question whether that legislation is saved by ' ,
the relevant saving clause of Article 19 will arise. If,
however, the legislation is not directly in respect of
G any of these subjects, but as a result of the operation
of other legislation, for instance, for punitive ,or pre·
ventive detention, his right under any of these.sub-
clauses is abridged, the question of lhe application of
Article 19 does not arise. The tme approach is only
H to consider the directness of the legislation and not
what will be the result of the detention otherwise valid,
on the mode of the detenu's life." (Pages 100-!0I).

,
BACHAN SINGH ... PUNJAB (Sarkaria, J.) 177

(iii) "The contents aJ!d subject-matter of articles 19 and 21 A
are thus no( the same ... " (Page 105). "Article 19 (5)
cannot apply to a substantive law depriving a citizen of
personal liberty." "Article 19 (1) does not purport
to cover all aspects of liberty or of personal liberty.
Personal liberty would primarily mean liberty of the
physical body. The rights given under article 19 (I) B
~ot directly come under that descdption. lo that
Article only certain phases of liberty are dealt with".
(Page 106) "In my ·opinion therefore, Article 19
should be read as a separate complete Article". (Page
107).
c
Patanjali Sastri, J., also, 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
AJticles 20 and 21." . (Page 192). Iµ tune with Kania, C.J., the D
learned Judge observed: "A construction which would bring within
Article 19 imprisonment in punishment of a ·crime committed or in
prevention of a crime threatened would, as it seems to me, make a
reductio ad absurdum of that provision. If imprisonment were to be
regarded as a 'restriction' of the right mentioned in article 19 (I)
(d),. it would.
-
equally. be a restriction on the rights mentioned by the.
'
E
other sub-clauses of clause (I), with the result that all penal laws
providing for imprisonment as a· mode o~ punishment would have to
run the gauntlet of clauses (2) to (6) before their validity could b.e
accepted. For instance, the law which imprisons for theft would cin
., that view, fall-'to be justified under clause (2) as a law sanctioning
restriction of freedom of speech and exl?ressioa." (Page 192). F

"Article 19 confers the rights therein specified only on the
citizens of India, while article 21 ext~nds the protection of life and
personal liberty to all persons citizens and non-citizens alike. Thus,
the two Articles do not operate in a cotermiuous field." (Page
193). G

"(Personal liberty) was used in Article 21 as a sense which
-\ excludes the freedoms dealt in Article.19 ... "

Rejecting the argument of the Attorney General, the learned H
Judge held that clause~ (4) to (7) of Article 22 do not form a complete
. ..
·

";'

178 SUPREME COURT REPORTS' (i983} 1 S.C.R.

A Code and that "the ·language of Article 21 is perfectly general and
covers deprivation of personal liberty· or incarceration, both for
pnnitive and preventive reasons." (Page 207). ·
. ~~

Mahajan, J., however, adopted a different approach. In his.
,.
' .

judgment, "an exruJ!ination of the provisions of Article 22 clearly .
8 _suggests that the intention was to make it self-contained as regards
the Jaw of preventive detention and that the validity of a law on the
subject .of preventi~e detention cannot be examined or controlled
either by the provisions of Article 21 or by the provisi?ns of Article'·
19(5)." (Page 229). '

c . Mukerj~e,' J. explained the relative scope of the Articles in
, this group, thus: 0 To me it seems that Article 19 of the Constitu-
. tion giv~s a list of individual liberties and prescribes in the various
clauses the restraints that may be placed upon thein by law so that
they may not conflict with public welfare or general morality. On
. the other hand, Articles 20, 21 and 22 are primarily concerned with
D penal enactments or other laws under which personal safety or liberty
' .
of persons could be taken away in the interests of the society and
they set down the limits within which the State control should be
.
exercised. ·· In my opinion, the ~roup of articles 20 to 22 embody the
entire protection guaranteed by/ the Constitution. in relation to
'' deprivation of life and personal liberty' both with regard to subs-
E
tantive as well ~s to procedural law." (Page 255).
"
."The only proper way of avoiding these anomalies is to inter-
pret the two provisions (articles 19 aod 21) as applying to. different
subject_s. It is' also unnecessary to enter into a, discussion on the
'
question •. :as to whether article 22 by itself is a self-contained Code
' with regard to the law of Preventive Detention." (Page 257).
, . ' . I

.• · S.R. Das, J., also, rejected the argument that the whole of the
Indian Penal Code is a law imposing reasonable restriction on the
rights conferred ·by Article 19 (1); with these observations (at Page
303): .·~
I

"To ·say that every. crime undermines the security of
'the State and, therefore, every section of the Indian Penal
Code, irrespective of whether it has any reference to speech .
,H .or expression, is a law ..within ·the meaning of this clause is
wholly unconvincing and betrays only a vain and forlorn

. I
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 179

attempt to find an explanation for meeting the argument A
that any .. conviction by a Court of law must necessarily
infringe article 19 (I) (a). There can be no getting away
from the fact _that a detention as a result of a conviction
impairs the freedom of speech for beyond what is permis-
sible under clause (2) of article 19. Likewise, a detention
on lawful conviction impairs each pf the other personal B
rights mentioned in sub-clauses (3) tt> (6). The argument
that every section of the Indian -.Penal Code irrespective
of whet lier it has any reference to any of the rights referred
to in sub-clauses (b) toie) and (g) is a law imposing reason-
able restriction on those several rights has· not even the
_merit of plausibility. There can be no doubt that a detention c
as a result of lawful conviction must necessarily impair the
fundamental personal rights guaranteed by articfe ,19 (1)
-far beyond what is permissible under clauses (2) to (6) of
that article and yet nobody can think of questioning the
validity of the detention or of the section of the Indian
Penal Code under which the sentence was passed." D

(ii) Das, i. then gave an additional reason as to why ·
validity of punitive detention or of the sections of the
Penal Code under which the sentence was passed,
cannot be challenged on the ground of article 19,
thus: E

·- "Because the freedom of his person having been law-·
fully taken away, the convict ceases to be entitled to exer-
cise .. any of the .. rights protected by ·clause (1) of article
19." F
(iii) The learned Judge also held that "article I9 protects
some of the important attributes of personal· liberty as
indepeDdent rights and the expression ~personal Jiberty'
has been used in article . 21 as a compendious term
including within its meaning all the varieties of rights G
which go to make up the person~! liberties of men."
(Page 299)

Fazal Ali, J. dissented from the majority. In his opinion : "It
cannot be said that articles 19, 20, 21 and 22 do not to some extent H
0 verlap each other. T_he case of a person who is convicted of Ill\
•
180 SUPREME COURT REPORTS [I ()83] I s.c.R.

A offence will come under article 20 and 2 I a_nd also undpr article 22
sp far as his arrest and detention in custody before trial are concern-
ed. Preventive detention, which is dealt with in article 22, also ·,
amounts to deprivation of personal liberty which is referred to in
article 19 (I) (d)." (Page 148).

B - Fazal Ali, J. held that since preventive- detention, unlike puni-
tive detention, directly infringes the right under Article 19(1)(d); it
inust pas~. the test of clause (5). According to the learned Judge,
only those laws are required to .be tested on the anvil of Article 19
_ which directly restrict any of the rights guaranteed in Article 19(1).
Applying this test (of direct and indirect effect) to the provisions of
c the Indian Penal Code, -tne_ learned Judge pointed out that the
Code "does not primarily or necessarily impo~e restrictions on the
freedom of movement, and_ it is not correct to say that it is a law
- imposing restrictions on the right to move freely. Its primary object
is to punish crime and not to restrict movement. The punishment
may consist in imprisonment or a pecuniary penalty. If it consists in
'D a pecuniary penalty, it obviously involves no restriction on move-
ment, but if it consists -in imprisonment, ihere is a restriction on
movement. This restraint is imposed not under a law imposing
restrictions on movement out under a law defining crime and making
ii· punishable. The punishm~nt is correlated with the violation of
some other person's right and not with the right of movement
E possessed by the offender himself. In my opinion, therefore, fhe
Indian Penal Code -does not come within the ambit of the words
"law imposing restriction on the right to move freely."
(Pages 145-146) •.

F In applying the above test, which was the same as adopted by
Kania, C.J., _Fazal Ali, J. reached a conclusion contrary to that
reached by the Chief Justice, on the following reasoning :

"Punitive detention is however essentially different from
preventive detention. A person is punitil'ely detained only
G after trial for committing a crime and after his guilt has
been e.Stablished in a competent court of justice. A person
so convicted can tak'e his case to the State High Court and
sometimes bring it to this Court also; and he can in the
course of the proceedings connected with his trial take all
H pleas available to him including the plea of want of jurisdic-
tion of the Court oi trial and the invalidity, of ti;!~ law
BACHAN SINGH v. PUNJAB {Sarkaria, 1.) t8!
under which he has been prosecuted. The final. judgment A
in the criminal trial will thus constitute a serious obstacle
in his way if he chooses to assert even after his conviction
that his right un1ler article 19(1)(d) has been violated. But
a person.who is preventively detained has not to face such
an obstacle whatever other obstacle may be in his way."
' B
(Page 146)
I
We have copiously extracted from the jtldgments in A.K.
Gopa/an' s case, to show that all the prop.ositions propounded, argu-
ments and reasons employed or approaches adopted by the learned·
Jildges in that case, in reaching the conclusion that thelndian Penal· c
Code, particularly those of its provisions which do not have a direct
impact on the rights conferred by Article 19(1), is not a law impos-
ing restrictions on those rights,. have not been overruled or rendered
bad by the subsequent pronouncements ·of this Court in B~nk
Nationalizaton(') case Of in Maneka" Gandhi's case. For instance, the
proposition laid down by Kania, C.J.; Fazal Ali, Patanjali Sastri, i)
and S.R. Das, J.J. that the Indian Penal Code particularly those of
its ptovisions which cannot. be justified on the ground on reason-
ableness with reference to any of the specified heads, such as "public '
order" in clauses (2), (3) and (4), is not a law imposing restrictions
on any of the rights conferred by Article 19( I), still holds the field.
Indeed, the re.asoning, explicit, or implicit in the judgments of Kania, E
.. C.J., Patanjali Sastri and S.R. Das JJ .. tbat such a construction which
treats every section of the Indian Penal Code as a law· impoiing
'restriction' on the rights in Article 19(1), will lead. to absurdity is
unassailable. There are several offences under the Penal Code, ·such
as theft, cheating, ordinary assault, which do not violate· or effect
'public order,' 'but only law and· order'. These offences injure only. F
specific individuals as distinguished from the publfc at large. · II is
by now settled that 'public order' means 'even tempo of the life of
the community.'· That being so, even all mu~ders do not disturb or
affect 'public order'. Some murders may be of purely private
• significance and the injury or harm resulting therefrom· affects only
G
specific individuals and, consequently; such. murpers may not .be·
covered by "public ofder" within the contemplation of clauses (2),
(3·) and (4) of article 19. Such murders do not lead to public dis-
order but to disorder simpliciter. Yet, no rational being can say

(I) [1970] 3 SCR 530.
suilRiiM~ cotikr REPORTS [!983] i s.c.it
A that punishment of such murders is not in the general public interest.
It may be noted that general public interest is not specified as a head
in clauses (2) to (4) on which restriction on the rights mentioned in
clause ( l) of the Article may be justified.

It is true, as was pointed out by Hidayatullah, J. (as he then
B was) in Dr. Ram Manohar Lohia's(') case, and in several other deci-
sions that followed it; that' the real distinction between the areas of
'law and order' and 'public order' lies not merely in the nature or
quality of the act, but in , the degree jand extent. Violent crimes
similar in nature, but committed in dilferent contexts and circums- . ~

tances might cause different reactions. A murder committed in
c given circµmstances may cause only a slight tremor, the wave length
of which does not extent beyond the parameters of law and order.
Another mu,der committed in different context and circumstances
may unleash a tidal.wave of such intensity, gravity and magnitude,
that its impact throws out of gear the even flow of life. Noneiheless
the fact remains that for such murders which do not affect "public •
D order", even the provision for life imprisonment in Section 302;
Indian Penal Code, as as alternative punishment, would not be
justifiable under clauses (2), (3) and ( 4) as a reasonable restriction
in the interest of 'Public Order'. Such a construction must, there-
fore, be avoided. Thus construed, Article 19 will be attracted only
to such laws, the provisions of which are capable of being tested
E under clauses (2) to (5) of Article 19 .

• This proposition was recently (1975) reiterated in Hardhan
Saha & Anr. v. State of West Bengal('). In accord with this line of
reasoning in A.K. Gopalan' s case, a Constitution Bench of this Court
in Hardhan.Saha' s case restated the principle for the applicability of
•
F Article'l9 by drawing a distinction between a law of preventive
detention and a law providing punishment for commission of crimes,
thus:

"Constitution has conferred rights under Article 19 and
·also. adopted preventive detention to prevent the greater
G
evil of elements imperilling the security, the safety of a
State and the welfare of the nation. It is not possible to
think that a person who is detained will yet be free to move t

H CI> [I!T66J I s.c.R. 709.
(2) [1975J 1 s.c.R. 778 at p. 784.
BACHAN SiNGH v. PUNJAB (Sarkaria, i) tfd
'or assemble or form association or unions or have the right 'A
to reside in any part of India or have the freedom of speech
• or expression. Suppose a person is convicted of an offence
of cheating and prosecuted (and imprisoned) after trial, it is
not open to say that the imprisonment should be tested.
with reference to Article, 19 for its reasonableness. A law
B
which attracis Article 19 therefore must be such as is capable
of being tested to be reasonable under clauses (21 to 5 of
Article 19."

(emphasis and parenthesis supplied.)
c
-~ The last sentence which has been underlined by us, appears to
lend implicit approval to the rule of construction adopted by the
majority of the learned Judges in A.K. Gopalan' s case, whereby they
excluded from the - purview of Article 19 certain provisions of the
Indian Penal Code providing punishment for certain offences which
- could not be tested on the specific grounds-embodied in clauses (2) . D
to (5) of that Article. This proposition enunciated in.A.K. Gopalan's
case is only a product of ,the application of the basic canon that a
construction which would lead to absurdity, should be eschewed.

In R.C. Cooper v. Union of India (popularly known as Bank
Nationalization case), the majority adopted the two-fold test for Ill
.. determining as to when a law violated fundamental rights, namely :
"(!) It is not the object of the authority making the law impairing
the right of a citizen, nor the form of action that determines the
protection he can claim. · (2)-It is the effect of the law and of the
action upon the right which . attract· the jurisdiction of the Court to
F
grant relief. 'The direct operation 'of the act upon the rights forms
the real test."

In Maneka Gandhi'v. Union of India (ibid), Bhagwati, J.
explained the scope of the same test by saying that a law or and
order made thereund~r will - be hit by article 19, ·if the direct and
G
inevitable consequence of such law or order is to abridge or take
away any one or more of the freedoms guaranteed by Article 19(1).
If the effect and operation of the statute· by itself, upon a person's _
fundamental rights is remote or dependent upon !'factors which may
or may not come into play", then such-statute is not u/tra-vires on H
the ground of its being· violative of that fundamental right. Bhag-
184 SUPREME COURT REPORTS [1983] I s.c.R.
A wati J. described this proposition as "the doctrine of intended and
real effect" while Cbandrachud, J. (as he then was) called it "the
. test of proximate effect and operation of the statute."

The question is, whether R.C. Cooper & Manek.a Gandhi have
given a complete go-by to the 'test of direct and indirect effect,
8 sometimes described as form and object test' or 'pith and substance
rule', which was adopted by Kania, C.J. and Fazal Ali, J. in A.K.
· Gopa/an' s case. In our opinion, the answer to this question cannot
be in the affirmative. In the first place, there is nothing ~uch in the
name. As Varadachariar, J. put it in Subrahmanyan Chettiar's(')
~ase, such rules of interpretation were evolved only as a matter of
c reasonableness and common sense and out of the necessity of satis-
. factorily solving conflicts from the inevitable overlapping of subjects
in any distribution of powers. By the same yardstick of common
sense, the 'pith and substance rule' was applied to resolve the ques-
tion of the constitutionality of a law assailed on the ground of its
being violative of a fundamental right.
0
'
Secondly, ·a survey of the decisions of this Court since A. K.
Gopalan, shows that the criterion of directness whicli is the essence
of the test of direct and indirect effect, ha; n~ver been totaliy
a.bandoned. Only the mode of its application has been modified and
its scope amplified by judicial ,activism to maintain its efficacy for
E
solving new constitutional problems· in tune with evolving concepts
of rights and obligations in a strident 'democracy.

The test of direct and indirect effect adopted in A. K. Gopalan
was.approved by the Full Court in Ram Singh v. State of Delhi.(')
Therein, Patanjali Sastri, J. quoted with approval the passages (i)
F
and (ii) (which .we have extracted earlier) from the judgment of
Kania, C. J. Altho~gh Mahajan and Bose, JJ. differed on the merits,
there was no dissent on this point among all the learned Judges.

G
· The first decision, which, though purporting to follow Kania,
C. J's. enunciation in A. K. Gopalan, imperceptibly added another
.
dimension to the test of directness, was Express Newspapers (Private)
Ltd. & Anr. v. The Union of India & Ors.(') In that case, the cons-
...
(!) [1940] FCR 188.
H. '(2) [1951] SCR 451.
(Jl [1959] SCR 12.
BACHAN SINGH v, PUNJAB (Sarkaria, J.) ' ISS

titutional validity of the Working Journalists (Conditions of Service) A
and Miscellaneous Provisions Act, 1955, and the legality of the
decision of the Wage Board, constituted thereunder, were challenged.
The impugned Act, which had for its object the regulation of the
conditions of service of working journalist• and other persons·
employed in newspaper establishments, provided, i~ter alia, for the
payment of gratuity to '} working journalist who bad b~en in conti- B
nuous service for a certain period. It also · regulated hours of _work
and le.ave and provided for ret_renchment compensation. Section 9
(I) laid down the pri~ciples that the Wage Board was to follow in
fixing the rates of wages of working journalists.

.One of the. contentions of the petitioners in that case was that c
impugned Act violated their fundamental rights under Articles 19
(I) (a), 19 (I) (g), 14 and 32 of the Constitution and that the decision
of the Wage Board fixing the rates and scales of wages wh'ich impos-
ed too heavy a fihancial burden ·on the industry and spelled its total
ruin, was illegal and void. It was contended by the learned Attorney
General in that case that since the impugned . legislation was not a D
direct -legislation on the subject of freedom of speech and expression.
Art. 19 (!)(a) would have no application, the test being ncjt the effect
or result of legislation but its subject-matter. In support of his
contention, he relied upon the observations on this point of Kania,·
C. J. in A. K. Gopalan. It was further- urged that the object of the · E
impugned Act was only to regulate certain conditions of service of
working journalists ',and other persons employed i~ the newspaper
• . establishments and not to take away or abridge the freedom of speech.
or expression enjoyed by the petitioners-and, therefore, the impugned'
·Act could not come within the prohibition of Article 19 (l) (a) read
with Article 32 of the Constitution.- F
_/..,___ . On the other hand, the petitioners took their stand on a passage
in the decision of.the Supreme Court of United States in Minnesot:·
Ex Rel., O/son,( 1 }'which was as under :
G
"With respect to these contentions it is enough to say
that in passing upon constitutional questions the 'Court has
regard to substance and not to mere/matters·of form,-and_
, that, in acc_ordance with familiar principles, the statute must
be tested by its operation and effect." ·
H
(I) [1930] 283 US 697 at p. 708 •

•
SUPRl!ME COURt REPORtS (1983) I s.c.k.

A It was further submitted that in all such cases, the Court has to look
behind the names, forms and appearances to discover the true
character and nature of the legislation .. Thus considered, 'proceeded
the argnment, the Act by laying a direct and preferential burden ·an
the press, wonld tend to curtail the circulation, narrow the scope of
dissemination of information and fetter the petitioners' freedom to
B choose the means of exercising their rights of free speech (which
includes the freedom of the press). It was further submitted that
those· newspaper employers who were marginally situated niay not
be able to bear the strain and have to disappear after closing down
their establishments.

c N .H. Bhagwati, J. who delivered the unanimous Judgment of
the Constitution Bench, after noting that the object of the impugned
legislation is to provide for the amelioration or' the conditions of the
workmen in the newspaper industry, overruled this contention of the
employers, thus :
,
D ."That, however would be a consequence which would
be extraneous and not within the contemplation of the legis-
lature. It could therefore hardly be urged that the possible
effect ,of the impact of these measures in conceivable cases
would vitiate the legislation as such. All the consequences
which have been visualized in the behalf by the petitioners,
E viz., the tendency to curtail circulation and ·thereby narrow
, the scope of dissemination of informatJon, fetters on the •
petitioners' freedom to choose the means of exercising the
· right, likelihood of the independence .of the press being
nndermined ·by having to seek government aid; the imposi-
tion of penalty on the petitioners' right to choose the instru-
F ments for exercising the freedom or compelling them to seek
alternative· media, etc., would .be remote and depend upon
_)_
various factors which may or may not come into play. Unless
these were the direct 1Jr inevitable consequences of the
meatlures enacted in the impugned Act, it would not ·be
f
possible to strike down the legislation as having that effect
G and operation." _, (emphasis added)

The learned Judge further observed that the impugned Act could
be "legitimately characterised as a measure which affects the press",
ff but its "intention or the proximate effect and operation" was not such
as would take away or abridge the right of freedom of speech and
•
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 18?
expression guaranteed iri Article 19 (I) (a), therefore, it could not be A
held invalid on that ground. The impugned decision of the Wage
·i
Board, hOwever, was held to be ultra vires the Act and contrary to
the principles of natural justice.

It may be observed at this place that the manner in which. the
test of direct and indirect effect was applied ~y N.H. Bhagwati, J., ll
·was not very different from the mode in Which Fazal Ali,· J. applied
it-to punitive detention as punishment after conviction for an offence
under the Indian Penal Code. N.H. Bhagwati, J., did not discard the
test adopted by Kania, C.J., in A.K. Gopalan, in its entirety; he merely
extended the application ?f the criterion of, directness to the opera-
•
tion and effect of the impugned legi~tion. c
Again, in Sakal Papers (P) Ltd.· & Ors. v. The Union of India(')
this Court, while considering the constitutionat validity of the
Newspaper (Price and Page) Act, 1956 and Daily Newspaper (-Price
and Page) Order, 1960, held that the "direct and immediate" effect
of the impugned Order would be to restrain a newspaper from D
publishing any number of pages for carrying its news and views,
which it has a fundamental right' under Article 19 (I) (a) and,
therefore, the Order was violative of the right of· the• newspapers
guaranteed by Article 19 (I) (a), and as such, invalid. In this case,
also, the emphasis had shifted from the object and subject-matter of
the impugned State action to its direct and immediate effect.

In Naresh Shridhar Mirajkar & Ors. v. State of Maharashtr.a
& Anr.,( 2 ) an order prohibiting the publication of the evidence of a
witness iri a defamation case, passed by a learned Jndge (Tarkunde,
J.) of the Bombay High Court, was impngned on the. ground that it
violated the petitioners' right to free speech and expression
guara_nteed by Article 19 (I) (a). Gajendragadkar, C.J., lWanchoo,
, Mudholkar; Sikri and Ramaswami, JJ., concurring) repelled this
contention with these illuminating observ.ations :
G
"The argument that the impugned order affects the funda-
mental rights of the petitioners under Article 19 (I), is based
on a complete m'isconception about the true nature and

(I) [1962] 3 SCR 842. H
(2) [1966] 3 SCR 744.
188 SUPREME COURT REPORTS l 1983] I s.c.k.
charaeter of judicial process and of judicial decisions.
When a Judge deals with matters brought before him for
\.
his adjudication, he first decides questions of fact . on which
the parties are at issue, and then .applies. the relevant law
to the said facts. Whethe.r the findings of fact recorded
by the Judge are right.or wrong, and whether the conclu-
B sion of law drawn by him suffers from any infirmity, can be ·
considered and decided if the party aggrieved by the
decision of the Judge takes the matter up before the
. appellate Court. But it is singularly inappropriate to
• assume that a judicial decision pronounced by a Judge of .,
competent jurisdiction in or in relation to matter brought
c before him for adjudicati'¥! can affect the fundamental
rights of the citizens under Article 19 (I). What the judicial
decision purports to do is to decide the controversy between
the parties bfougl;it before the court and nothing more.
if this basic and essential aspect of the judicial process is
borne in mind, it would be plain that the judicial verdict
D pronounced by court in or in relation to a matter brought
before it for its decision cannot be said to affect the funda-
mental rights of citizens under Article 19 ( !)."

"It is well-settled ,that in examining .the validity· of
E legislation, it is legitimate to consider whether the impugned
legislation is a legislation directly in respect of the subject
covered by any particular article of the Constitution, or
touches the said article only incidentally or indirectly'.'

"If the test of direct effect and object which is some-
F
times described as the pith and substance test, is thus
applied in considering the validity of' legislation, it would
not be inappropriate to apply the same test to judicial '
decisions ·iike the one with which we are concerned in
th« present proceedings. As we have already indicated,
G the impugned order was directly concerned with giving·such
protection to the witness as was thought to be necessary
in order to obtain true evidence in the case with a. view to
do justice between the parties. If, incidentally, as a·result of
this-order, the p.etitioners were not able to report what
H they heard in court, that cannot be said to make the
impugned order invalid under Article 19 (I) (a)."
BACHAN Sllj9H v. PUNJAB (Sarkaria, J.) 189
,
We have already mentioned briefly how the test of· directness A
was developed and reached its culmination ill Bank Nationalization's
case and Maneka Gandhi's case •.

.
From the above conspectus, it· is clear that the test of direct·
and indireci. effect was not scrapped. Indeed, there is no dispute B
that the test of 'pith and substance' · of the ·subject-matter' and of
direct and of incidental effect of legisla\ion is a very u1efuf test to
determine the question of legislative comp'eten ce Le., in ascertaining
whether an Act· falls under one Entry while incidentally encroaching
·upon another Entry. Even for determining the validity of a legislation
on the ground of infringement of fundamental rights, the subject.
matter and the ·object of the ·legislation are not altogether irrelevant.
c
For instance, if the subject,matter of the legislation directly cc;wers
any of.the fundamental freedo.ms mentioned in Ariicle 19 (I), it
must pass the test of reasonableriess under the relevant head in
clauses (2) to (6) of that Article. If the legislation do~s not directly
• deal with any of the rights in Article 19 (1), that may not conclude
the enquiry. It will have to be ascertained further whether by its
D
. ditect and immediate operation, the impugned legj~lation abridges
any of.the rights enumerated !n Article 19 (!). · ·

In Bennett Coleman,(') Mathew, J. in his dissenting judgment
referred with approval to the test as expounded in Express News- E
papers. He.further observed that "the 'pith and 'substance' test,
though not strictly appropriate; must serve a· useful purpose in the
proce~s of deciding whether the .provisions in question which work
.same interference with the freedoin of speech, are essentially- regula-
tory in character". · '

From a survey of the cases noticed above, a comprehen-
sive test wh.ich can be formulated, may be re-stated as under :

Does the impugned law, in its pith and substance,
whatever may .be its form and ·object, deal with any of the .G
fundamental rights conferred by Article 19 (l) ? If it does,
does it abridge or abrogate any of those rights ? And even
., if it does not, in its pith an.d substance, deal with any of
thefundame~tal rights conferred by Article 19 (I), is the
H
(I) A.IR 1973 S.C. 106.
190 StJPRBMB COURT REPORTS [1983] 1 s.c.a.

A direct and inevitable effect of the impugned law such as to
abridge or abrogate any of those rights ?
'1
The mere fact that the impugned law incidentally, remotely or
collaterally has the effect of abridging or abrogating those rights, will
not satisfy the test·. If the answer to the above queries be in the
B' affirmative, the impugned law in order to be valid, must pass the
test of reasonableness under Article 19. But if the impact of the
law qn any of the rights under clause (1) of Article 19 is merely
incidental, indirect; remote or collateral and is dependent upon
, .
factors which may or may not come into play, the anvil of Article 19 ~

will not be avilable for judging its validity. ·
c
Now, let us apply this test to tlje provisions of the Penal Code
in question. Section 299 defines 'culpable homicide' and Section
300 defines culpable .homicide amounting to murder. Section 302
prescribes death or imprisonment for life as penalty for murder .. It
cannot, reasonably or·rationally, be contended that any of the rights
D mentioned in Article 19(1) of the Constitution confers the freedom
to commit murder or, for the matter of that, the freedom to commit
any offence whatsoever. Therefore, penal laws, that is to say, laws
which define offences and prescribe punishment for the commission
of offences do not attract the application of Article 19(1). We
cannot, of course, say that the o15ject of penal laws is generally such
E a:s not to involve any violation of the rights conferred by Article
19(1) beca~se after the decision of this Court in the B~nk Nationaliza-
tion case the theory, that the object and form of the State action •
alone determine t)le extent of protection that may be claimed by an
individual and that the effect of the State action on the fundamental
right of the individual is irrelevant, stands discredited. But the
point of the matter is that, in pith and ·Substance, penal Jaws do not
deal with the subject matter of rights enshrined in Article J9(1). )_
That again is not enough for the purpose of deciding upon the
applicability of Article 19 because as the test formulated by us above
shows, even if a Jaw does not, in its pith and substance, deal with
G 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. On this latter ashct of the
H matter, we are of the opinion that the d~privation of freedom con-
sequent upon an order of conviction and sentence is n'ot a direct ,
'
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 191
'
and inevitable consequence of the penal law but is merely incidental A
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. Consj·
dering 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 the Constitution.
• B
This is particularly true of crimes, inherently vicious and per·
nicious, which under the English 'Common Law were classified as
crimes ma/a in se as distinguish~d from crimes ma/a prohibita crimes
.,. . , ma/a in se embrace acts immoral or wrong in themselves, such as,
murder, rape, arson, burglary, larceny (robbery and dacoity); while
crimes.ma/a prohibita embrace things pr~hibited by statute as infring· ·
c
ing on others' rights, though no moral turpitude attaches to such
crimes. Such acts constitute crimes only because they ar~ so prohi·
bited. (See .Words and Phrases, Permanent Edition, Vol. IO).
While crimes ma/a in se do not per se, or in operation directly and
inevitably impinge on the rights under Article 19(1), cases under the D
other category of crimes are conceivable where the law relating to
them directly restricts or abridges such rights. The illustration given
by Shri Sorabji will make the point clear. Suppose, a law is enacted
which provides that it shall be an offence' to level any criticism,
whatever, of the Government established by law and makes a further
provision prescribing five years' imprisonment as punishment for E
such an offence. Such a law (i.e. its provision defining the offence)
will directly and foevitably impinge upon the right guaranteed under
clause (a) of Article 19(1). Therefore, to be valid, it must pass the
test of reasonabl.eness embodied in clause (2) of the Article. .But
this cannot be said in regard to the provisions of the Penal Code
with which we are concerned. F

Assuming arguendo, that th~ provisions of the Penal Code,
particularly those. ·providing death penalty as an alternative punish-'
ment for murder, have to satisfy the requirements of reasonableness
and public interest under Article 19 the golden strand of which G
according to the ratios of Maneka Gandhi runs through the basic
structure of Article 21 also the further questions to be determined, in
this connection, will be: On whom will the onus of satisfying the
requirements under Article 19, lie ?' Will such onus lie on the State
or the person challenging its validity ? And what will be the nature H
ofjhe onus?
192 SUPREME COURT REPORTS [1983] 1 s.c.R.

A w'ith regard to onus, no hard and fast rule of universal appli-
cation in all situations, can be deducted from the decided cases. In
some decisions, such as, Saghir Ahmad v. State of Uttar Pradesh(')
and Khyerbari Tea Co. v. State of Assam & Ors. (2) it was laid dowD"
by this Court that if the writ petitioner succeeds in showing that the

B .
impugned law. ex facie abridges or transgresses the rights. coming
under any of the sub-clauses of clause (1) of Article 19, the onus shifts
on the respondent state to show that the legislation comes within the
permissible limits imposed by any of the clauses (2) to (6) as may be
applicable to the case, and, also to place material before ihe court
in support of that contention. If the State does nothing in that
respect, it is not for the petitioner to prove negatively that it is not
c covered by any of the permissive clauses.

Acontrary trend, however, is discernible in the recent decisions
, of this Court, which sta~t with the initial presumption in . favour of
the constitutionality of the statute and. throw the burden of rebutting
D that presumption on the party who challenges its constitutionality on
the ground of Art. 19. •.
.
In B. Banerjee v. Anita Pan (') this Court, speaking through ,
V.R. Krishna Iyer, J.,. reiterated the ratio of Ram Krishna Dalmia's
case,(')-that :
E
·"there is always a presumption in favour of the consti-
tutionality of an enactment and the burden is upon him
who attack it to sbow that there has been a clear transgres-
sion of the constitutional principles"; and·

~-. "that.it must be presumed that the legislature under-
stands and correctly appreciates the need of its own people,
that its laws are directed to problems made manifest by
·experience and that its. discriminations are based on adequ-
ate grounds."

_G It was emphasised that "Judges act not by hunch but on hard facts •
. properly brought on· record an~ sufficiently strong to rebuff the

(1) [1955] l SCR 707.
(2) AIR 1964 SC 925.
H (3) (1975] 2 SCR 774 at p. 787,
(4). [1959] SCR 279, 297~propositions (b) & (c).
•/
1.

BACHAN SINGH v. PUNJAB (Sarkaria, J.) 193

initial presumption of constitutionality of legislation. Nor is the
A
Court a third Chamber of the House to weigh wh'ether it should
draft the clause differently". Referring, inter alia, to the decision of
this Court in R.M.D. Chamarbaugw~la (ibid), and Seervai's 'Consti-
tutional Law of India', Vol. I, page 54, it was recalled, "Some courts
have gone to the extent of holding that there is a presumption in . B
. favour of constitutionality, and a law will not be declared unconsti·
tutional unless the case is so clear as to be free from doubt; and to
doubt the constitutionality -of a law is to resolve it in favour of its
va,lidity". Similar view was taken by a· Bench of seven learned
Judges of this Court· in Pathumma v. State of Kerala.(')
G
Behind the view that there is a presumption of constitutionality
of a statute and the · onus to rebut the same lies on t\lose who .
challenge the legislation, is the rationale of judicial restraint, a
recognition of the limits of judicial review; a respect for the bounda-
ries of legislative and judicial fu,nctions, and the judicial-responsi-
bility to guard the trespass from one side or the other. The primary D
function of the courts is to interpret and apply the laws according to
the will of those who made them and not to transgress into the
legislative domain of policy-making." -.'The job of a Judge is judging.
and not law-making". In Lord Devlin's words:.· "Judges.are the'
keepers of the. law and the keepers of these boundaries cannot, also,
be among out-riders." E

A similar warning was echoed by the Supreme Court of the
United States iµ Dennis v. United States(') in these terms :

"Courts are not -representative bodies. They are not F.
designed to be a good reflex of a democratic society .. Their
judgment is best informed, and therefore most dependable,
within narrow limits. Their essential quality is detachment,
founded on independence. History teaches. that the inde-
pendence of th.e judiciary is jeopardized when . courts
become embroiled in the p!Cssions of the day and assume G
primary responsibility in choosing between competiog poli-
tical, economic and social pressures." '

(I) [1978] 2 S.C.R: 547
(2) 341 Os 494, 5i5:.95 L. E<I. 1137; 71 S; <;t, 857
R
194 SUPREME COUR1 REPORTS (19831 rs.c.a.

In Gregg v, Georgia,(') one of the principal questions for consi-
I
deration was, whether capital punishment provided in a statute for
certain cdmes was .a "cruel and unusual" punishment. In that
context, the nature of the burden which rests on those who attack
the constitutionality of the statute was 'explained by Stewart, J.,
thus:
B
"We may not require the legislature to select the least
severe penalty possible so long as the penalty selected is not
cruelly inhnmane or disproportionate to the crime involved. (

And a heavy burden rests on those who would attack the
c judgment of the representatives of the people. This is true
in part because the constitutional test is intertwined with an (~
assessment of contemporary standards and the legislative
judgment weighs heavily in ascertaining such standards. In
a democratic society legislatures', not conrts, are constituted
to respond to the will and consequently the moral values of .
D the people." •
Even where the burden is on the State to show that the restric-
tion imposed.by .the impugned statute is reasonable and in public
interest, the extent and the manner of discharge of the burden neces-
E sarily depends on the subject-matter of ·the legislation, the nature of ·
the inquiry, and the scope and ·limits of judicial review. (See the
observations of Sastri. J. in State of Madras v. V.C. Rao,( 2) reiterat-
ed in Jagmohan). '

In th'e instant case, the State has discharged its burden
F primarily by producing for the persuill of the Court, the 35th Report
of the Law Commission, 1967, and the judgments of this Court in
Jagmohan Singh and in several subsequent cases, in which it·has been
recognised that death penalty SCI ves as a deterrent. It is, therefore,
for the petitioners to prove and establish that the death sentence fdr
n1urder is so outinoded, unusual or excessive as to be devoid of any
G rational nexus with the purpose and object of the legislation.

The Law Commission of India, after making an intensive and
extensive study of the subject of death penalty in India, published

H (1) 428 us 153: 49 L. Ed. 2<! 859
(2) [1952] S:C.R. 797 at 607.
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 195

and submitted its '35th Report in 1967 to the Government. After A
examining, a wealth of evidential material and considering the argu-
ments for and against· its retention, that high-powered Body summed
up its conclusions at page 354 of its Report, as follows :

"The issue of aboliti~n or retention has to be decided
on a balancing of the various arguments for and against B
retention. ·No single argument for abolition or retention
can decide the issue. In arriving, at any conclusion on the
subject, the need for protecting society· in. general and
individual human beings must be borne in mind.

It is difficult to rule ont the validity of, of the strength
behind, many of the arguments for abolition nor does, the
Commission treat lightly the argument based on the irrevo-
cability of the sentence of death, the need for a modern
approach, the severity of capital punishment and the strong
feeling shown by certain sections of public opinion in stres·
D
- sing deeper ques.tions of human values.

Having regard, however, to the conditions in India, ·to
the variety of the social up-bringing of its inhabitants, to
the disparity in the level of morality and education in the
country, to the vastness of its area, to diversity of its popu-
lation and to the paramount need ·for maintaining law and E
order in the country at the present juncture, India cannot
risk the experiment of abolition of capital punishment.''

This Report was, also, considered by the Constitution Bench of
this Court in Jagmohan. It waS'the main piece of evidence on the basis
F
of which the challenge to th~ constitutional validiiy of Section 302
of the Penal Code, on the ground of its being violative of Article 19,
was repelled. Parliament 'must be presumed to have considered
these views of the Law Commission and the judgment of this Court
in Jagrnohan, and must also have been aware of the principles
crystallised by judicial precedents in the matter of sentencing when G
it took up revision of the Code of Criminal Procedure in 1973, and
inserted in it, Section 354(3) which indicates that death penalty c~n
be awarded in exceptional cases for murder and for some other
offences under the Penal Code for special reasons to be recorded.
H
. Death penalty has been . the subject of an age·old debate
between Abolitionists and . Retenfj\)pjsts~ ;ilthough recently thQ
196 SUPREME COURT REPORTS (1983] l S.C.R

controversy h.as come in sharp focus. Both the groups are deeply ·
anchored in their antagonistic views. Both· firmly an·d sincerly believe
in the righteousness of their respective stands, with overtones of
sentiment and emotion. Both the camps can claim among them
eminent thinkers, penologists, sociologists, jurists; judges, legislators,
administrators and law enforcement officials.
B
The chief arguments of the Abolitionists, which have been
substantially adopted by the learned counsel for the petitioners, are
as under: . · /
.f

c (a) The death penalty is irreversi\ile. Decided upon
according to fallible processes of law by fallible human
beings, it can be-and actually has been-inflicted
upon people innocent of any crime.

(b) There is no convincing evidence to show that death
D penalty senes any penological purpose : ...
(i) Its deterrent effect remains unproven. It has not been ··•·
shown that incidence of murder has increased in
countries where death .penalty has been abolished, after
its abalition.
E
(ii) Retribution in the sense of vengeance, is no longer an .
acceptable end of punishment.

(iii) On the contrary, reformation of the criminal and his
rehabilitation is the primary purpose of punishment.
Imposition of death penalty nullifi.es .that purpose .
.F
(c) Execution by whatever means and for whatever offence
is a cruel, inhuman and degrading punishment.

It is proposed fo deal with- these arguments, as far as possible,
G in their serial order.

Regording (a) : It is true that death penalty. is irrevocable and a
few instances, can be cited. including-some from England, of persoqs <•
who after their conviction and execution for murder, were dis-
H . covered to be innocent. But this, according to the Retentionists is
-not a reason fPr abolition of the death penalty, but an argument for
reform of the judicial system a11d the sentencing procedure. Theore-
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 19?

. tically, such errors of judgment cannot be absolutely eliminated A
from any system of justice, devised and worked by human beings,
but their incidence can be infinitesimally reduced by providing
adequate safeguards and checks. ,We will presently see, while dealing
with the procedural aspect of the problem, that in India, ample
safeguards have been provided by law and the {;onstitution which
B
almost eliminate the chances of an innocent person being convicted
al)d executed for a. capital offence.

Regarding (b) 1 Whether death penalty ser.ves any peno/ogical
purpose.

. Fir~tly, in most of the countries in the world, Including India,
c
a very large segment onhe population, including ngtable penologists
judges, jurists, legislators .and other enlightened people still belieye
that death .penalty for murder and certain other capital offences does
serve as a deterrent, and a greater deterrent tha11 life' imprisonment.
We will set out very briefly, by way of sample, opinions of some of D
these distinguished.persons.

In the first pl.ace, we will. notice a few decisions of Courts
wherein the deterrent value of death penalty has been judicially ·
recognised.

In Paras Ram v. State of Punjab,(')_ the facts were that Paras •
E
Ram, who was a fanatic devotee of t)le Devi, used to hold Satsangs
at which bhajans were sung in praise of the Goddess. .Paras Ram
.ceremonially beheaded liis four year old boy at the crescendo of the
morning bhajan. He was tried, convicted and sentenced to death
/
for the. murder. His death sentence was confirmed by the High F
Court. -He filed a petition for grant of special leave to appeal t&
this Court under Article 136 of the Constitution. It was contended
on behalf of Paras Ram that the ve~y monstrosity of the crime
provided proof of his insanity ~ufficient to exculpate the offender·
under Section 84, Indian.Pena!' Code: or material for mitigation of
the sentence of death. V. R. Krishna Iyer, J., speaking for-the G
. Bench, to which one of us (Saikaria, J.) was a party, refused to
grant special leave and summarily dismissed the petition with these
observations : ·

' , I ' < , ~ • ,\

'. , , :·' (1) ~.L.P. (Cr!.) Nos< 698' &. 6:~ ~f 1973, dc~/ded on October 9, 1973.

•'
l
SUPREME COURT REPORTS [I 983] i s.c.it.

A "The poignantly pathological grip of macabre supersti-
tions on I
some crude Indian minds in the shape of desire to
do human and animal sacrifice, in defianca of the ieientifie
ethos of our cultural heritage and the scientific impact of
our technological century, shows up in crimes of primitive
horror such as the one we are dealing with now, where a
B blood-curdling butchery of one's own beloved son was per-
petrated, aided by other 'pi!)us' criminals, to propitiate some
blood-thirsty diety. Secular India, speaking through the
· Court, must administer shock therepy to such anti-social
'piety' when the manifestation is in terms of inhuman and cri-
minal violence. When the disease is social, deterrence through
c court sentence must, perforce, operate through the individual
culprit coming up before court. Social justice has many .
facets and Judges have a sensitive, secular and civilising
role in suppressing grievous injustice t.o humanist values by.
inflicting condign punishment on dangerous deviants."
D (emphasis added)

In Jagmohan, also, this Court took due note of the fact that
for certain types of murders, death penalty alone is considered an
adequate deterrent :
E ..

.
"A large number of murders is undoubtedly of the
common type. But some at least afe diabolical in concep-
tion and cruel in execution. In some others where the '

victim is a person of hlgh standing in the country society is
liable to be rocked to its very foundation. Such murders
F cannot simply be wished away by finding alibis in the s.ocial
maladjustment of the murderer. Prevalence of such crimes
speiiks, in the opinion of many, for the inevitability of
death penalty n.ot only by way of deterrence but as a token
of emphatic disapproval of the society."

G -Examini'ng whether life imprisonment ·was an adequate substitute •
for death penalty, the Court observed :

"Jn the context of our criminal law which punishes
murder, one cannot ignore the fact that life imprisonment
H works out in most cases to a dozen years of punishment,
and it may be seriously questioned whether that sole alter·

I
BACHAN SINGH v. PU Ni AB (Sarkaria, J.) · 199
A
native will be an adequate substitute for the death
penalty."

In Ediga Anamma v. State of Andhra Pradesh,('rv.R. Krishna
Iyer, J., ·speaking for the Bench to wbich one of us (Sarkaria, J.,)
was a party, observed that "deterrence through threat of death may B
still be a promising strategy iu some frightful° areas of murderous
crime." It was further observed that "horrendous features of the '
crime and the hapless and helpness state of the victim steel the heart
of law for the sterner sentence." ,

In Shiv Mohan Singh v. State (Delhi Administration),(') the same G
learned Judge, speaking for the Court, reiterated the deterrent effect
of death penalty by referring to his earlier judgment in Ediga
Annamma' s case, as follows :

"In Ediga Annamma this Court, while noticing the
social and personel circumstances possessing an extenuating D
impact, has equally clearly highlighted that in India under
present conditions deterrence through death penalty may
not be a time-barre.cl punishment in-some frightful areas of
barbarous murder."

Again, in Char/ea Sobraj v. T~e Superintendent, Central Jail, E
Tihar, New Delhi,(') the same learned Judge, speaking for a Bench of
three learned Judges of this Court, reiterated that deterrence was
'one of the vital considerations of punishment.

I11 Trop v. Dul/eh,(') Brennan, J. of the Supreme Court of the
. Unjted States, concurring with the majority, emphasised the deterrent F
end of punishment, ·in these words :

"Rehabilitation is but one . of 'the several . purposes of
the penal law. Among other purposes are deterrents of the
wrongful act by th'e threat. of punishment and insulation of
>
society · from dangerous individuals by imprisonment or G
eXecution." ·

(!) A.I.R. 1974 S.C. 799
(2) [19771 3 s.c.R. 112
(3) [1979] 1 s.c.R. s12 H
(4) 256 us 86

I.
\\
•

200 SUPREME COURT REPORTS [1983) I s.c.a.

A In Furman v. Georgia, Stewart, J. took the view _that death
penalty serves a deterrent as well as retributive purpose. Jn his
view, certain criminal conduct is so atrocious that society's interest
in deterrence and retribution wholly outweighs any considerations of
reform or rehablitation of the perpetrator, and that, despite the
ineonclusive empirical evidence, only penalty of death will provide
B . maximum deterrence. ·

Speaking for the majority,. in Gregg v. Georgia, Stewart, J.
reiterated his views with regard to the deterrent and retributive effect
of death penalty. -

c Now, we may notice by way of.specimen, the views of some
..
jurists and scholars of note. Sir James Fitzjames Stephen, the. gre.at
jurist, ·who was concerneil with the drafting of the Indian Penal
Code, also, was a strong exponent of the view that capital punish-
ment has the greatest value ~s a deterrent for murder and other
capital offence. To quote his words :
D
.,..
''.No other punishment deters men so effectually from
committing crimes as the punishment of death. This is
one of those propositioqs which it is difficult to prove,
simply because they are in themselves more obvious than
E any proof can make them. It is possible to display ingenuity ·
in arg!ling against it, but' that is all. The whole experience
of mankind is in the other direction. The threat of instant
death is the one to which resort has always been made when
there was an absolute necessity for producing some result.
No one goes to certain inevitable death except by compul-
F sion. Put the matter the other the way. Was there ever yet
a criminal who, wheri sentenced to death and br_ought out
to die, would refuse te offer of commutation of his sen-
tence for the severest secondary punishment ? Surely not.
Why is this ? · It can only be because 'All that a man has
will he give for .his life'. In any secondary punishment,
G however terrible, there is hope; but death is death; its terrors
cannot be described more forcibly." · ·

Even Marchese De Cesare Bonesana Beccaria, who can be
'' called the fath~r of the modern Abolitionist movement, concedes in
0

• H his treatise, "Del Delilli a de/la Pana" (1764), that capital puniSh-
meut would be justified in two instances : Firstly, in an execution
•
~;.
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 201
. '
would prevent a revolution against popularly established Gpvern- A
ment; and, secondly, if an execution ·was the only way to deter others
from committing a crime. The adoption of double standards for
capital punishment in the rMlm of conscience is considered by some..
scho)ars as the biggest infirmity in the Abolitionists' case.
. .
B
Thorsten Sal/in is one of the penologists who has mad~ a
scientific study of the subject of capital punishment and compiled
the views of various scholars of the 19th and 20th centuries. In his
book "Capital Punishment<• he has · made an attempt to assemble
the arguments for and against the death penalty. He has also given
extracts from the Debates in the British House of Commons in 1956
and, also, in March and April 1966, in the Candian House of Com- c
mons. In the last. part of his book, the learned J?ditor summarises.
his ideas about capital punishment. _ In his.· opinion, Retribution
seems to be outdated and unworkable. It is neither efficient nor
equitably administered. "Justice is a relative concept that changes
with the times". A retributive philosophy alone is not now socially
acceptable."In the last analysis, the only utiHtarianargument that has . D
being to be given attention is the one that defends capital punishment
as a uniquely powerful means of protecting the community." He ends
his book with 'the observation : "I have attempted to show that, as
now used, capital punishment performs. none of the utilitarian func-
tions claimed by its supporters, nor can it ever be made to serve such
functions. It is an archaic custom of primitive origin that has dis-
E
appeared in most civilized countries and is. withering away in the
rest." '- ·

In his article appearing in "Criminology Review Year Book"
(1979) Vol. I, ·compiled.by Sheldon L. Messinger & Egon Bittner('), F-
Isaac Ehrlich,. after' surveying the past literature on the relation
between ·capital punishment and capital crimes, has (at pp. 31-33)
.~. pointed out the following shortcomings in the thesis of Sellin·,
- I

"The principal shortcoming of the work by Sellin and
•
others using bis me!bodo!ogy i&, that the· approach taken G
and the methods applied do not permit a systematic exami-
nation of the main implications emanating from the general
theory of deterrence. · The shortcoming is basic, because
the impiications following from the general deterrence
\
/
H
(1) Published. by Sage. PubJicaHon_s .IN<; Ltd., '275 ~o"!tJ1 ·:seVerly · DriVe.

.. Beverly HiJ1s, <?alifornia 90212. _ -

I
202 SUPREME foURT REPORTS [i983} i s.c.ii..
A hypothesis are what Sellid was chailenging. Yet his work
n~ither develops nor tests the full range of implications
following from the theory he attempts to reject; nor does
he develop or test a competing theory. In additio.n, to my
knowledge, Sellin never reported in any of his studies the
results of any systematic (parametric or non-parametric)
n statistical tests that could jastify his strong and unqualified
inferences."

"Another fundamental shortcoming of Sellin's studies
c is their failure to account systematically for other factors
that are expected by the deterrence hypothesis to affect the
frequency of murder in the population, apart from the rele-
vant risk of execution. These are variables such as the
probability of apprehension, the conditional probability of
conviction given apprehension, the severity of alternative
.D punishments for murder, the distribution of income, the
· probability of unemployment, and other indicators of diffe-
rential gains from criminal activities occurring jointly with
murder. Since, as I shall argue later, some of these variables
are expected to be highly correlated with the conditional
probability / of execution given conviction of mnrder,
E their exclusion from the statistical analysis can serio- . ·
usly bias estimates of the partial deterrent effect
of capital punishment. Aware 'of the problem, Sellin
attempted to compare states that are as. alike as
possible in all other respects. However, his "matching
procedure", based on the assumption that neighbouring
states can satisfy such pre-requisites without any explicit
stan'ilardization, is simply insufficie!lt for any valid inferen- ·
ces. Pairs of states, such as New York, and Rhode Island,
Massachusetts and Maine, or. Illinois and Wisconsin all
• included in his comparisons, differ in their economic and
demographic characteristics, in their law enforcement acti-
G •
vities, and in the opportunities they provide for the commis-
sion of other crimes. Moreover, the direction of the causal
relationship between the murder rate and the overall risk of
punishment-be it the death penalty or any other sanction
H -is not self-evident because, for example, states with high
murder rates are expected to and, in fact do devote more

..
BACHAN siNGII v. PUNJAB (Sarkarla, J.)

resources to apprehend, convict and execute offenders than A
. do states with lower rates. Specifically, variations in the
legal or practical status of the death penalty occasionally
may be the result of, rather than the cause for, changes in
the murder rate, and thus may give rise to an apparent
positive association between these two variables. The same
general point applies in connection with the identification B
of the effect of any other variable which is a product of
law enforcement activity or private protection against crime.
For these reasons, the true deterrent effect of a sanction
\ such as the death penalty cannot be readily inferred from
J• simple comparisons pf the sort performed by Sellin."
c
The learned author then (at page 33) · arrives at this conclu-
"'· sion :
"If investigations indicate that probability and length
of imprisonment do impart significant deterrent effects, then
failure of the research to demonstrate specifically the deter- D
• rent efficacy of capital punishment may be taken more as
evidence . for shortcomings in the research design and
methodology or in the measures of the theoretically rele-
vant variables used than as a reflection on the validity of,
the deterrence theory itself."
E
The scholar then stresses another purpose of capital pnnish-
n:wnt, namely, .incapacitation 'of the offender, which, in fact, is
another aspect of its deterrent effect.· To quote his words :

"There is an additional point worth stressing. Even if
punishment by execution or imprisonment does not have F
any deterrent effect, surely it must exert some incapacitative
effect on punished offenders by reducing or eliminating the
,possibility of recidivism on their_ part." ·

This eminent ·social scientist, Prof. Ehrlich(') whose views we
have extracted, has made intensive studies of the deterrent effect of ·G
capital punishment. Then, a result of his study was also published

(I) See Ehrlich's, The Deterrent Effect of Capital Punishment, 65 AM Econ.
Rev. 397 (1975). And also the comments of Peter Passell in his article
/ "The J?eterrent Effect of the Death :penalty" in Stanford Law Review: H
November 1975, pp. 62-64 .

•
204 SUPREME COURT REPORTS [ 1983} I s.c.a.

A in the American Economic Review in June, 1975. He includes a
specific test for the presence of a deterrent effect of capital punish-
ment to the results of earlier studies. He has in his study(') claimed
to identify
, a significant reduction in. the murder rate due to the use
of capital punishment.. A version of his detailed study is said to
have been filed with the l!nited States Supreme Court on March 7,
B 1975 in the case of Fowler v. North Carolina._(')

In 1975, Robert Martinson, a sociologist, published the results
of a s_tudy he had made in New York regarding the rehabilitation of
of prisoners. Among the conclusions he drew : "The prison which I
makes every effort at rehabil.itation succeeds uo better than the I.
c prison which leaves its inmates to rot... The certainty of punishment.
rather than the severity,. is the most effective crime deterrent. We
should make plain that prisons exist to punish people for crimes
committed."

(Quoted in Encyclopaedia Britannica 1978 Book of the Year,
D pp. 593-594)
•
Many judges-especially in Britain and the United States;
where rising crime rates are the source of much public concern -have
expressed grave doubts about the wisdom of the view that reform
ought to take priority in dealing with offenders. "They have argued
E that the courts must reflect a public abhorrence of crime and that
justice demands that some attempt be made to imp9se punishment
fitting to the crime." ..
(Encyclopaedia Britannica, ibid.)

F Professor· Jean Graven, Judge of the Court of Appeal of
Geneva, and a distinguished jurist, maintains in his learned analysis,
(see the Postscript in reply to A World View of Capital Punishment
by. James Avery Joyce), of the views of Camus 'and Koestler, that
neither of these two authors has faced up· to the really basic objection
to the abolitionist's case. According to Graven, there are two groups
G oFpeople, which are n~t .covered by the abolitionist's case and Camus
and Koestler have therefore left their cause open to attack at its

(1) See· Lee S. Friedman's article at pages 61M87; Review Year Book, 1979,
~ ~ . ~
•'ff · com.piled by Messingei"and Bittne11.
I '

(2) '428 US 904~49 L. Ed. 1212 (1976): '.
BACHAN SINGH V. PUNJAB (Sarkaria, J;) 205

weakest point. "The true problem", as Graven sees it, "is the A
protection of the organized, civilized community",, the legitimate
defence ·of society against criminal attacks made upon it by those
anti-social elements which can be stopped only by being eliminated;
in the "last resort". "For such, the death penally should be preser-
.
ved, and only for such".
. B
. Professors Graven's second challenge is, wh.ich the abolitionist
must accept, the existing division between civil and military protec-
tion. According to him, in doing so, the abolitionist cannot avoid
applying double standard arid two mutually destructive criteria to
their approach. to the death penalty. "For if the death penalty is
~; accepted as protective in princlple to society, then it should be so in c
. '; ~II cases and in all circumstances in troubled times as well as in
peaceful times, in respect of the traitor, the spy, the .deserter, or the
hostage, as well as or' the brigand, the "gangster", or the professional
killer. We must be logical and just at the same time. In the realm
of conscience and of 'principles', there cannot be two weights and
measures. There cannot be a morality for difficult times and another D
morality for easy times; one standard for military justice and another
for civil justice. What then should be done with those individuals
.who have always been. considered proper subjects for elimination?
If the capital sentence is objectionable and illegal...If the death
penalty must be absolutely repudiated because it 'degrades man, ·
(quoting Camus) then we accept the position. But, in that case, no
E
right to kill exisfs any longer ... the greatest war criminals, those
responsible conscious of' what they have done and intended to do-
for the worst crimes of genocide, who gassed, incinerated in ovens or
buried in.quicklime a million innocent victims, or allowed them to
perish in mines and mars bes ... Society . has not the right then to kill F
~ ..
·even these ''Monsters". -

(Quoted in A World View of Capital Punish!llent, by James
Avery Joyce).

J. J. Maclean, a ·Parliamentarian, articulated bis· ·views with G
regard to the deterrent, value of capital punishment in the Can~dian
House of Commons in the March-April, Debates 1966, as follows:

"Whether it (capital punishment) is a greater or lesser
deterrent than life imprisonment: This is an argument that
1>annot be . proven on either side but I would not like to

•
206 SUPREME COURT REPORTS [1983] 1 s.c.R.
A have to try to convince any one that capital punishment is
not a deterrent. Statistically this cannot be proven because ,.
the deterrent effect on .both capital punishment and life
imprisonment is obscured by the fact that most criminals
plan a crime on the basis that they are.going to avoid anv
penalty ... ! say, the deterrent value is with respect to people
B who did not commit crimes, who were deterred from
becomi11,g murderers by the fact that capital punishment or
some other heavy penalty would be meted out to them if
caught."

c (Quoted in Sellin's Capital Punishment).

The Law Commission of India in its 35th Report, after care-
fully sifting all the materials collected by them, recorded their views
regarding the deterrent effect of capital punishment as follows :

"In our view capiial punishment does act as a deterrent.
We have already discussed in detail several aspects of this
topic. We state below, very briefly, the main poi~ts that
have weighed with us in arriving at. this conclusion :

E (a) Basically, every human being dreads death.

(b} Death, as a penalty, stands on a totally different · ..
level from imprisonment for life or any otber punish-
ment.·· The difference is one of quality,.and not merely
of degree.
Ii' (c) Those who are specifically qualified to express an
opinion on the subject, including particularly the
majority of the replies received from State Govern-
ments, Judges, Members of Parliament and Legislatures
and Members of the Bar and poiice officers-are defini-
tely· of the view that the deterrent object of capital
G punishment is achieved in a fair measure in India.
'
(d) As to conduct of prisoners released from jail (after
undergoing imprisonment for life), it would be difficult
'to come to a conclusion, without studies extending
H over a long period of -years.
BCHAN SINGH v. PUNJAB (Sarkaria, J.) 207

(e) Whether any other punishment can. possess all the
A
advantages of capital punishment is a matter of
doubt. · · ·

(f) Statisties of other countries are inconclusive on the
subject If they are not regarded, as proving the
deterrent effect; neither can they be regarded as conclu-
sively disproving it." .
Views of the British Royal Commission :

The British Royal Commission, after making an exhaustive
.study of the issue of capital. punishment and its deterrent valu~, in c
their Report (1949-53), concluded :

"The general conclusion .which we.reach, after careful
review of all the evidence we have· been able to obtain as
to the deterrent effect of capi tat punishment, may be stated
as follows. Prima facie the penalty of death is likely to O
have a stronger effect as a deterrent to normal human
beings than any other form of punishment, and there is
some evidence (though no ·convincing statistical evidence)
that this is in fact so. But this effect does not operate
universally or uniformly, and there are many offenders on ·l.,_
whom it is limited and may'often be negligible." E
We may add that whether or not death penalty in actual
practice acts as a deterrent, cannot' be statistically proved, either
way, "because statistics as to how many potentisim murderers· were
deterred from committing murders, but for the existence of capital F
punishment for murder, are difficult, if not altogether impossible, to
collect. Suet, statistics of deterred potential murderers are difficult to
unravel as they remain hidden. hi the innermost recesses _of their
mind.

Ret,ibution in the sense of reprobation whether a totally rejected G
concept of punishment.

'Ev~n retribution in the sense of soc.iety's reprobation for the
worst of crimes, i.e., murder, is not an altogether outmoded concept.
This view is· held by many distinguished sociologist, jurists and H
judges. ·

J,ord Ju~tice Denning, Master of the Rolls of the Court of
'
208 SUPREME COURT REPORTS [I 983) I s.c.R.

A Appeal in England, appearing before tbe British Royal Commission
on Capital Punishment, stated his views on this point as under :

"Punishment is the way in which society expresses its
denunciation of wrong-doing, and, in order to maintain
respect for law, it is essential that the punishment inflicted
B for grave crimes should adequately reflect the revulsion felt
by the great majority of citizens for them. : It is a mistake
to consider the objects of punishment as being 'deterrent or
reformative or preventive and nothing else ... The truth is
that some crimes are so outrageous that society insists.
on adequate punishment,. because the wrong-doer deserves
c it, irrespective of whether it is a deterrent or not,"

That retribution is still socially acceptable function of punish-
ment, was also the view expressed by Stewart, J., in Furman v.
Georgia, at page 389, as follows :
'
D " ... I would say only that I cannot agree that retribu-
tion is a constitutionally impermissible ingredient in the
imposition of punishment. The instinct for retribu-
tion is part of the nature of man, and channeling that
instant, in the administration of criminal justice serves an
important purpose in promoting the stabi!ity of a society
E. governed by law: When people begin to believe that
organized society is.unwilling or unable to impose upon "
criminal offenders the punishment they 'deserve', then there
are sown the seeds of anarchy of self help, vigilant justice,
and lynch law."

F
Patrick Devlin, the eminent juri.st and judge, in •his book,
"The Judge", emphasises the retributive aspect of the purp_ose of·
punishment and criminal justice, thus:

"I affirm that justice means retribution and nothing else.
Vindictiveness is the emotional outflow of retribution and
G justice has uo concern with that. But it is concerned with
the measurement of deserts. The point was put lucidly
and simply by the .Vicar of Longton in a letter to The
Times, from which with his permission I quote : Firstly,
far from pretending that retribution should have no place
H in our penal system, Mr. Levin should recognize that it is
' BACHAN SINGH v. PUNJAB (Sarkaria, J.) '209

' logically impossible to remove it. If it were removed, all A
punishments should be rendered unjust. What could be
more im.moral than to inflict imprisonm.ent on a criminal for ·
the sake of deterring others, if he does not deserve it ?
Or would it be justified to subject him to a compulsory
attempt to reform which includes a denial of liberty unless,
· again he deserves .it ? B
Retribution and deterrence are not two divergent enM of
capital punish~eni. ' They are convergen't goals which uitimately
i;nerge into \me.' How these ends of punishment cpalesce into one
was described by the 'Law Commission of India; thus :
;.
c
"The retributive object, of capital punishment has
been the subject-matter of sharp attack at the hands•
of- tbe abolitionists. We appreciate that many persons
would regard the i~stinct of revenge ·as barbarous. · How
, far it- should form part of the penal philosophy in
modern times will always remain a matter of controversy. D
No useful purpose will be served by. a discussion as to
whether the instinct of retribution is or is not commendable.
The fact remains, however, that whenever.there is a serious
crime, the society feels a sense of disapprobation. If there
is any element'of retribution in· the law, ·as admihistered
now, it is not the instinct of the man of .jungle but rather E
· a refined evolution of that instinct the feeling prevails in
.. the public is a fact of which notice is to be taken. The Jaw
does not encourage it, or exploit it for any undesirable
ends. Rather, by reserving tbe death penalty for murder,
and thus visiting this gravest crime with the gravest punish-
ment,· the law helps ;the element of retribution merge into F
· the element of deterrence." · . ·

[Para 265 (18j, 35th Report]

Earlier in 1949-1953, the.British Royal Commission in Para 59 G,
.of its Report spoke in a somewhat similar strain ;
.. ' \

,"We think it is reasonable to suppose that t~e deterrent
force of capital punishment .operate• not only by affecting
, the conscious thoughts of individuals tempted ·to ·commit
murder, but also by lmilding up in the ~ommunity, over a
I
\

210 · SUPREME COURT R~PORTS [1983) 'I S.C.R.

A long period of time, a deep fe~ling of peculiar abhorrence
for the crime of murder. The fact that m'en are hung for
murder is one great reason why murder is considered so
dreadful a crime. This widely diffused effect on the moral
consciousness of society is impossible to assess, but it must
be at least as important as any direct part which the death
B penalty may play as a deterrent in the calculations of
potential murderers."

According to Dr. Ernest Van Den Haag, a New York psycho-
logist arid author, and· a leading proponent of death penalty, "a
very strong symbolic value" ·attaches to executions. "The motives
c for the death penalty may indeed include vengeance. Legal
vengeance solicjifies social solidarity against law-breakers and
probably is the only alternative to the disruptive private revenge of
those who feel harmed." · ,

(See The Voice
. .
(USA) June
I
4, 1979)
D
The views of Lloyd George, who was the. Prime Minister· of
. England during the First World .War, have been referred to· in the
book "Capital Punishment" (1967) by Thorsten Sellin at page 65,
as below:

E "The first function of capital punishment is to give
emphatic expression to society's peculiar abhorrence of
murder... It is important that murder should be regarded
with peculiar horror.... I believe that capital ·punishment
does, in ·the present state of society, both ex~ress and
s.ustain the sense of moral revulsion•for murder."
F
This view is not without respectable support in the iurispru-
dent.ial literature of. today, despite an opinion to the contrary.
(See also the Royal Commission's Report, 1949-53). In relying,
inter a/ia, upon the evidence before it, in~luding that of Lord
Denning, the Royal Commission recognised a strong and wide-
G spread demand for retribution. It is a common phenomenon in all
the civilized countries that. some murders are so shockingly offensive
that there is a general outcry from the public for infliction of the
ultimate. penalty on the cri~inal.

H In regard to the retributive aspect of capital punishment, we.
may cite \in~ re~ent i1lustration showing l\ow demand for retribu_,
BACHAN SINGE! v. PUNJAB (Sarkaria, J.) 211

tion, in the sense of society's instinctive disappro.val of the out- A
. rage'ous conduct of the murderer is indelibly ingqined in con-
lempora:ry'·public opini?n even in advanced countries.

In November 1978, George Moscone (Mayor) and Harvey
Milk (Supervising Officer) of San Francisco were cruelly, assassinated B
a
by Dan White, police-man. Si~ months later, on May 22, 1979, a
jury of seven men and five women rejected the. charge of first-
degree murder, and in consequence, did not .award capital punish-
ment to Dan White for this heinous double murder.·· .Public opinion •
reacted sharply. .Public protest against this decision spontaneously
manifested itself, in a. burst of flame. and fury. Thousands of
' '

outraged demonstrators rampaged through the Civic Centre,
c
·""· ... ' ' \

~mashing windows, burning police cars, chanting : "We want
<

justice" Writing in 'The Voice', a local paper from San Franscisco,
in its issue of June 4, 1979, Lawrence Mullell, fired at the jury a
v.olfey of questions, to which the agitated public would demand
answers; D

"What comment did the jury make on the value of
life? Was the tragedy of the execution-style murders the
central issue, or was the jury only concerned with technicali-
ties, absurdities and loopholes of the law? Was i'ustice
considered not revenge' but justice ? High' irony, Dan E

.
Whfte's strong belief in capital punishment has found
thousands of new converts. From now on, a lot of ·people
'

will die because Dan White lives. Are we so insensitive,
callous and inhuman that we accept or excuse violence and
brutality? Consider White's defence lawyer, Douglas F .
Schmidt'.s reference to that tragic Mon.day in November :
"It was a tragedy. Now it's behind us."

. "For those who.loved and still miss George Moscone
and Harvey Milk, for those who were cast into darkness
a,nd cried for justice, fo~ those who still seek answers; the G
lawyer's words are a chilling reminder that we must not
forget-that we must not 'put it behind .IJS' ."

The for!Der cop, a law and order. and capital punish-
ment advocate driven by his passion, by his lack of reason, . U
. to destroy those wlw Ile disagreed with, and by· doing so
212 SUPREME COURT REPORTS it983) l s.c.R.
A .demonstrated the greatest human failure-.. tbe inability to
co-exist.

"Daii White symbolizes the violence and brutality 'that
is undermining civilization."

B Dan White's case and the spontaneous .reaction of the public
, opinion that followed, show that opposition to capital punishment
bas (to use the words of Raspberry),"(') much more appeal whe.n
the discussion is merely academic than when the community ·is
confronted with a crime, or a series of crimes, so gross, so heinous,
so cold-blooded that anything short of death s.eems an inadequate
c response''.

The Editor of 'Capital Punishment', Thorsten Sellin has noted
at page 83 of his compilation, the following views of an outstanding
,Justice of the Ontario Appeal Court:

D "The irrevocable ~haracter of the death penalty is a
•
reason why all possible measures should be taken against
injustice-not for .its abolition. ,Now a days, with the
advent of armed criminals and the substantial increase in
armed robberies, criminals of long standing if arrested,
. ·must expect long sentences. However, if they run no risk
E of hanging, when fo'und guilty of murder,,. they will kill
police men and witnesses , with the prospec.t of a future
no more unhappy, as one of them put it, than being fed,
lodged, and clothed· for the rest of their lives. In addition,
Oiice in prison, such people who · are capable of· anything '
could kill their guards and their fellow inmates with relat·
F tive impunity.''·

.J.J, Maclean, the Canadian Parliamentarian: justifies, from
another angle, the right of the State to award capital punishment for
.murder:
G
· "lf the State has the right and the duty to defend the
community against outside aggression, sllch •as in time of
war, and within the country, for instance, in case of treason

H (1) Raspberry, Death Sentence~ th~ Washington Post, March 12t 1976, P; 2?
· ~ols. 5-6.
1
• ·

' '
BACHAN SINGH v. PUNJAB (Sarkar/a, J.) 213

·crimes against the State, etc.; and that to the extent of A
\ taking the life of the aggressors and guilty parties, .if the
citizen wants to. protect his own life by killing whoever
attacks him without .any reason, the State can do the same
when a criminal attacks and endangers the life of the com·
munity by deciding to eliminate summarily another human
being. Capital punishment must be retained to prove the B
san~tity of that m·ost precious thing whicp. · is ihe gift of life;
it embodies the revulsion and horror that we feel for the
greatest of crimes.,. For most people, Jife is P!iceless and
they will. do anything and suffer. the worst privations to \
preserve.it, even when life itself does not hold.many conio- '
lations or bright prospects for the future. As a deterrent, G
the death ·penalty is piayi~g its part for which there is 'no
substitute ... I suggest that statistics do not. prove much,
' .
. either on one side or the other ... There are too many varia-
tions, too many changes as regards circumstances, condition
between one period and. the other, to ,enable us to make
D
worthy comparisons."

(See page 84 of Sellin's Capital Punishment).

-Some penologists justify capital penalty and fife imprisonment
.on the 'isolation'. or 'elimination' theory of criine and punishment. · E
, Vernon Rich in bis "Law & the administra'lion of justice" (Second
Eilition, at page 10), says : ·
.·' ~

"The isolation theory of crime and punishment is that
the criminal law is a device for identifying persons dange- F
rous to society who are then punished hy being isolated from
society as a whole, so that they cannot commit other anti-
social acts, The isolation theory is used to justify the death
penalty and long-term imprisonment. Obviously, this theory
is effective in preventing criminal acts by those execuied or
permanently incarcerated." G

1 While the Abolitionists fook upon death penalty as something
which is per se immoral and inhuman, the Retentionists apprehened
that if we surrender even the risk of the last remaining horrifying H
det~rrent by which t.o frighten the toughts of the underworld, we may
I
214 SUPREMll' COURT REPORTS ( 1983]
' .
1 s.c.11..

A· easily tip the scales in. favour of the anti-social hoodlums. They fear
that abolition of capital punishment, will result in increase of murders
motivated by greed, and in affable "crime passionelle.''

"It is· feared", wrote George A. Floris,(1 ) "the most devastating
B effects of the abolition will, however, show themselves in the realm
of political murder. An adherent of political extremism is usually
convinced that the victory of bis cause is just round the corner: So,
for him long term imprisonment holds no fear. He is confident thai
the coming ascendency of bis friends will soon liberate him." To
c prove' this proposition, Floris cites the instance of Von Paper's
Government who in SeJ:!tember 1932, reprieved. the death sentence
passed on two of Hitler's storm-troopers for. brutal killing of one
of their political opponents. The Retentionists believe that the
dismantling of .the gallows will almost 'everywhere enhance the hit
and run attacks on political opponents. On this ·premise, they
D argue that c.apital punishment is the most formidable safeguard
against terrorism.

The argument cannot be rejected out of band.· A number of
instances can be.cited where abolitionist States feeling the inade-
quacy of their penological armour to combat poli!ically motivated
gangsterism, have r:trieved and used their capital weapon which
E they bad once thrown away. Despite their traditional abhorrence of
death· penalty, the Norwegians executed Major Vedkun Quisling
after World War II. The Belgians, too, executed no less than 242
collaborators' and traitors after the liberation, ·although in their <.
country, the death penalty ~as otiose since .1880.

•
In England, death pe11alty was retained for high treason in the
Silverman Bill of 1956. Even at present, for that offence, death
penalty is a valid sanction in England. In the aftermath of assaS·
sination of Prime Minister Bandernaike in 1959, Ceylon hurriedly
reintroduced capital punishment for murder. Owing to similar
considerations, Israel sanctioned death penalty for crimes committed
G against the Jewish people, and executed the notorious'Jew-baiter,
Adolf Eichmann in 1962. Recently, on April 9, 1979, confronted
with a wave of violent incidents after the signing of Egypt·
• I;raePlllfieace Treaty. Israel sanciioned the ·use of death penalty
"for"acts of inhuman cruelty".
H
(1) Sunday Tribune, December 8, 1963.
BACHAN siNoli v. PUNJAB (Sarkaria; .J.) 215
/

Jn' India, very few scientific studies in r~gard to crime and A
punishment in general, and capital punishment, in particular, have
been made. Counsel for the petitioners referred us to Chapter VI, •
captioned 'Capital Punishment, in the book, 'Quantum of _Punish- ·
ment in' Criminal Law 'in India, written· by Dr. Kripal Singh
Chhabra, now on the staff of G.N. University, Amritsar. ·In this
article, which was primarily meant as LL. D. thesis, the learned
8
author concludes : · '·-

"bn the basis of statistics both. of India and abroad,
U.N.O. findings and .other weighty arguments, we can
safely conclude that· -death penalty is not sustainable on
merits .. Innately it has no reformative element. It has,
c
!~ been proved that death penalty as operative carries no · .
deterrent value and crime of murder is governed by factors
other. than death penalty. Accordingly, I feel that the
death penalty should be abolished."
D
It will' be seen, in the first place, that the analysis by Dr.
Chhabra in coming to fhe conclusion, that ·death penalty is of no
penological value, is based on stale, incomplete and inadequate
statistics. · .This is more particularly true of ,the data relating to
India, which does:not cover the period subsequent to 1961. Secondly,
0

the approach to the problem adopted by him, like the other Aboli- E
tionists referred to by him, is mainly, if not merely, statistical. ·

1
As already noticed, the proponents of tlie opposite view of
capital punishment, po,int out that statistics alone are not determi-
native of the question whether or not death penalty serves any deter- F·
rent or other penological purpose. · Firstly, statistics of deterred
potential murderers are hard, to obtain. s'econdly, the approach
adopted by the Abolitionists is oversimplified. at the cost of other
relevant but imponderable factors, the appreciation of which is
essential, to assess the true peno.logical value of capital punishment.
The number of such factors ·is infinitude, their ·character variable. G
duration. transient and abstract formulation difficult. Conditions
change from country to country and .ti'me to iime. Due to the incons-
tancy of social conditions, it is not scientifically possible to assess
with any degree of ·accuracy, as to whether the variation in the
incidence of capital crime is attributable to the presence or absence H
of death penalty hi the penal law of that country for such crimes.
~16 StJi>RBMll COUU REPORTS [19831 1 s.c.lt.

A That is why statistical attempts to assess the true penological value
of capital punishment, remain inco!lclusive. ·

Pursued beyond a certain point, both the Abolitionists and the
Retentionists retreat into their own conceptual bunkers firmly entren·
ched in.their respective "faiths". We need not take sides with either
·.of them. - T~ere is always . a danger in adhering too rigidly to COD·
cepts. As Prof. Brett has pointed out "all' concepts are. abstraction.s
from reality, and that in the process of abstraction something of the
reality is bound to be lost''('). We must therefore, view the problem
against the perspective of the hard realities of the time and !he c~n
c ditions prevailing in the world, particularly in our own country.
. ' .

A review. of the wo~ld events of the last seven or eight 'years,
as evident from Encyclopaedia Britannica Year Books and other
material ·referred· to by the learned cou~sel, would show that m~st
countries in the world are in the grip of an ever-rising tide of violent
D crime. · Murders ·for monetary gain or from misdirected political
motives, robbery, rape assault are on the increase. India is no
exception. . The Union of India has produced for our perusal a
statement of facts and figures showing the incidence of violent ~rime,
including murder, dacoity and robbery, in the various· States of
India, duri.ng the years 1965 to 1975. Another statement has been
E furnished showing the number of persons ~onvicted of murder and
other capital offences and sentenced to .death 'in some of the States
of India during the period 1974 ·to .1978. This statement however,
is incomplete and i11adeq\Jate. On account of that deficiency and
for the general reasonft set ont above, it cannot, even statistically
' show conclusively or with any degree of certainty, that capital
'. F punishment has no penological worth. But the first statement does
bring out clearly the stark.reality that the crimes of murder, dacoity
and r~bbery in India are since 1965 increasing. ·
I

/
Now, looking.-around at the world during the last decade, we
may ~ecall ·that in Furman v. Georgia {decided on June 29, 1976),
G the Supreme Court of the United States held by a majority, that the
imp~sition and carrying out of the death penalty constituteS 'cruel
and unusual' punishment, in violation of the Eighth and Fourteenth

ff (1) An Enquiry into Cdminal Guilt by Prof. Peter Brett, 1963 Edn. Mel·
bourne, page 13.

'
•'
.'BACHAN SINGH v. PUNJAB (Sarkaria, J.i 217
A
Amendments. . Bren'rian and Marshall, JJ. (differing froni the
plurality) we11t to the extent'of holding that death penalty was per se
unconstitutional as it was a cruel'.and unusual punishment. In so
ho,lding, these learned Justices purported t-0 adopt the coqtemporary
. standards of decency prevailing among the enlightened public of the
United States. Justice Marshall ruled that "it was morally unaccept-
able to the people of the United States''" This opinion of the
learned Justices was sharply rebuffed by the people of the United
States through their .chosen ,representatives. Soon after the decision .
in Furman, bowit{g to the ihrust of public opinion, the LegiSlatures
of not less than 32 · States, post-haste revised their penal laws and
reinstituted death 'penalty for murder and certain other crimes. Public .c
,..._, opinion polls then· taken\show that approximately 70 per.cent oL
' ' Americans 'have been in favour of death I?enalty, (See 'The Voice';
supra). In 1976, a Gallup Poll taken in' the Unitted States showed
that more than 65 per cent ·of those polled · preferred to have an
operative death penalty.
D.
Incidently, the rejection by the people of the approach adopted
, . by the two learned Judges in Furman, furnishes proof of the fact
that judicial opinion does not necessarily reflect the morai attitudes
.of the people. At the·same time, it'is a reminder that Judges should
not take upon themselves the responsibility of becoming ·oracles or
spokesmen of public opinion : Not being representatives of the-. E
people, it is often · bfitter~ ~s a matter of judicial. restraint~ to· leave
the 'function of assessing public opinion to the chosen representatives
of the people in the legislature concerned.
r

Coming back to the revi6w of the world crime situation, during'•
the last decade, Saudi Arabia and some other countries·Mve reinsta-. · F
·led death penalty or enacted harsher punishm.ents not only for murder
..•./·
'
but some other crimes, also. In America, apart froni 32 States which
reinstated death penalty under revised laws after Furman, the ·legisla-
tures of some of the remaining I5 States .have either reinstituted or
are considering to -reintroduce death penalty: Currehtly, a f~deral
legislation for reinstituting or prescribing capital punishment for a · G
larger range of offences of homicide is under consideration of United
States' Congress. According , to the report of the Amnesty Interna-
tional,'.in U.S.A., as on May I, 1979, death penalty can be imposed
for aggravated murder' -in 35 States. Attempts have been made in, H
other countries, · nlso to reintroduce death penalty .. In Britain, in
218 SUPREME COURT REPORTS [l ~83} 1 s.c.R.

A the wake of serious violent incidents of terrorism, a Bill was moved
in .l'arliament to reintroduce capital punishment for murder and
certain other offences. It was defeated by a free vote on April 19, ··-
1979. Even so, no less than 243 Members ofParliament ·bad voted
in favour of this .rneaslire. We have noted that Israel has also
recently reinstituted death penalty for certain criminal 'acts 'o(
B in human cruelty'. In .People's Republic Of China, a new legislation
was adopted on·July l, 1979 by China's Parliament, according to
Article 43 of which, death penalty .can be. imposed "for the most
heinous crimes". In Argentina, the death penalty was reintroduced
in l 976. · Similarly, Belgium reintroduced death penalty and increas- L

ed the number of crimes ·punishable with death'. In France, in 1978
c a movement in favour of abolition initiated by the French bishops
failed·to change the law under which death penalty is a valid sanc-
tion for murder and certain other offences. In Japan,_ death penalty
is a legal sanction for 13 crimes. In Greece and Turkey, death
penalty can be imposed for murder and other capital offences. In'
Malaysia and the Republic of Singapore under the Drugs Act of
D
May, 1979, misuse of drugs is also punishable with death. Cuba
introduced a new penal code in·· February 1978, which provides
punishmen! of death by shooting for crimes ranging from some types
of murder and robbery to hijacking and rape.

E In the U.S.S.R. (Russia),.as many as 18 offences are punish-
able with death. In Russia, at present; the following offences com-
mitted in peacetime are punishable with death under the RSFSR
Criminal Code :

"Treason (Article 64); espoinage (Article 65); terrqrism
F (if the offence includes the killing of an official
(Article 66); terrori.sm against representative of foreign State
(if the offence includes the killing of such a representative·
"for the purpose of provoking war or international compli-
cations") (Article 67); sabotage (Article 6SJ; organizing the
commission of any of the above-named offences (Article 72);
G commission of any of the above-named offences against
other Working People's State (Article 73); banditry (Article
• 77); actions disrupting the work of corrective labour institu-
tions (Article 77~ I); making or passing counterfeit money
or securities (when the ojfence is committed as a
H
form of business) (Article 87); viol~tion of rules for currency
transactions (when committed as a form of business or on ,

•
BACHAN SINOR v. PUNJAB (Sarkaria, J.) 219

a large· scale, or by a person previously convicted under A'
tbis Article) (Art. 88); stealing of State property bn an
especially large scale, regardless of the manner of stealing
(Article 93"1); intentfonal homicide with aggravating cir-
cumstances (Article 102); rape, when committed by a group
of persons or by an especially_ dangerous recidivist, or
resulting in especially grave consequences, or the rape of a B
minor (Article 117); taking a bribe, with especially aggra-
.vating circumstances (~rticle 173); infringing the life of a
policeman or People's Guard, 'with aggravating circumsian-
ces (Article. 191-2); hijacking an aircraft, if th~ offence
results in ~ath or serious physical injuries (Article 213-2);
resisting a superior or compelling him to-violate official :c
duties, an offence .applicable only to military personnel, and
carrying the death penalty in peace-time if committed in
; c~njunction with intentional homicide of a superior or any
other person performing military duties (Article 240)."

• (Vide, Report of Amnesty International, 1979) D

Our object in making the.above survey is to bring out the hard fact
that in spite , of the Abolitionist movement, onJy 18 States (as on
30 [\fay 1979) in the world have abolished the death penalty for all
offences, while 8 more have retained it for specific offences commit-
ted in time of war, only, (See Amnesty International Report (1979) E
page 92). This means, most of the countries in the modern world
still retain death penalty as a 'legal sanction for certain specified
offences. The countries which retain death penalty in their penal
laws, such as, Russia, U.S.A., France, Belgium, Malaysia, China
and Japan, etc., cannot, by any standard, be called uncivilized
nations or immature societies. F

Surveyors and students of world events and· current trends
believe that the reversal of the attitudes towards criminals and their
judicial punishments.in general, and capital p~nishment in particular
in several countries of the world, is partly due to the fact that milder
sanctions or correctiv~ processes, or even the alternlltive of imprison- G
ment, have been found inadequate and wantjlif io stem the mount-
ing tide of serious crime. Writing in Encyclopaedia Britannica,
1978 -Book of the Year 'under the caption, 'Changing Attitudes
Towards Criminals', Richard Whittingham sums ·Up the cause th1J.t
has led to the adoption of this New Hard Line, thus : H
SUPREME COURT REPORTS [19$3] I ·S,C.R.

A "Horror Story after horror story of dangerous c'riminals
sent" back into society on bail or parole from a penitentiary
or (in many cases) release from a mental institution to
. commit further crimes hav.e forced people to say that enough
is enbugh. The. consensus seemed to be that there must
be no repetition of such situations as the one described by
8 Chicago Sun-Times Columnist Roger Simon in a September
4, 1977, article abouf a ·man who had just been convicted
of a p'articularly despicable crime."

Faced with the spectre. of rising ,rime, people and sociologists
alike, have started questioning the rehabilitation policy. "In Cali- '
c fornia another study from the Rand Cooperation, suggests that
keeping habitual· criminals Jocked Up would 00 more to reduce ·Crime
than any rehabilitation efforts. Despite treatment or preventive
meiisur~s, habituarcriminaJsl commonly go back to crime after they
are released from prison, the study showed. In addition, tne study
found that deterrence to crime ~as in. direct proportion to the rela-
D tive certainty of going to jail, after being caught."
.
According .to Encyclopaedia Britannica Year Book 1979, In
1978 also penologists were seriously divided in their views about the
end of punishment. So~e penologists argued that "It is not possible
to punish and reform simultaneously": while "ot.hers would prefer
E to strip punish!nent of its moral overtones", "While many Legis-·
lators and most penologists have supported the idea that reform
ought to take priority in gealing with offen?ers, ma11y Judges esp.e-
cially in Britain and the United States, where rising crime rates are
the source of much public concern have expressed grave ,doubts
F about' the wisdom of this view. They have argued that the courts ·
m.ust reflect a public abhorrence of crime and that justice demands
that some attempt be made to impose punishment fitting to the
crime". I

India also, as the statistics furnished by the re8pondent (Union •
G of India) show, is afflicted by a rising rate of violent crime, parti-·
cularly murder, armed robbery and dacoity etc., and this has been ·
the cause of much public concern. All attempts made by individual ·
membed to move Bills in the Parliament for abolition or restriction
of the area of· death penalty have ended in failure. At least four of
H such unsuccessful attempts were ·made after India wou Indepen~ence,
in 1?49, 1958, 1961 and 1978. It may be noted that the last of

,
BACHAN SINGHY. PUNJAB (Sarkaria, J.) 221
A
these cttempts was only to restdct the death penalty to a few types
of murders sp'ecified in 'the Bill. Though it was passed by the
Rajya Sab.ba ~fter • being recast, it ·bas not , been passed by Lok
Sabha. ,i

. To sum up, the question whether or not death penalty .serves
any penological purpose is a difficult, complex and intractable issue.
It has evoked strong,· divergent views. For the.purpose of testing
the constitutionality of the impugned. provision as to death penalty
in Section 302', .Penal
'
Code on the ground of reasonableness
I
in the
light of Articles 19 and 21 of the Constitution, it is not necessary
for us to express any categorical opinion, one way or .th~ other, as c
to which of these two antithetical views, held by the Abolitionists '
and Retentionists, is correct. It is sufficient to· say that the very
fact that persons of reason, learning and light are rationally and
deeply divided in their opinion on this issue, is a ground among
. others, for rejecting the petitioners argument that retention .of death
:p~nalty in the im'pugned provision, is. totally devoid of reason and D
purpose. If, notwiihstanding the view of the Abolitionists to the
contrary, a very. large segment of people, the world 'over, .includiftg
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 Condi-
tions in India, contemporary public opinion. cbanalised through the
.people's representatives in Parliament, has repeatedly in the last
three decades, rejected all attempts, including the one made recently
to abolish' or specific'ally restrict the area of death penalty, if death
penalty is still a recognis.ed legal sanction for murder or •ome types
of murder in most of th.e civilised .countries in the world, if the
framers of the Indian Constitution were fully aware as we shall
presently show.they were of the existence of death penalty as punish-
ment for m~rder, under fhe Indian Penal Code, if the 3Stb Report.
·and subsequent Reports of the Law Commission sugges~ing retention
of death penalty, ,and reco~mending revision of the Criminal Proce-.
. dure Code an,d the insertion of the new Sec.lions 235' (2) and 354 (3)
in ibat Code providing for pre-sentence bearing and sentencing ·pro- .G
1ced.ure on c0nviction for murder and other ~apital offences Were·
before the Parliament and · prcsum.ably considered by it When in
1972-1973 it tock. up revision ofthe Code of. 1898 and replaced it
by the Code of Criminal Procedure, 1973, it is not possitle to hold
H
that the provision of death penalty as an alternative punishment for
murder, in Section 302, Pen<1l Code is unreasonable and not in the
222 SUPREME COURT REPORTS [1983) 1 S,C.R.

A . public interest.. We would, therefore, c~nclude that the impugned
provision in Section 302, violates neither the letter nor the ethos of -<-.
Article 19.

We will now consider the issue whether the .impugned limb of
the provision in Section 302, Penal Code contravenes Article 21 of
B the Constitution.

Before dealing with.the contention canvassed on the point, it
will be proper to notice briefly the principles which should inform
the interpretation of Article 21.

c In Maneka Gandhi's case, which was a decision by a Bench of
seven learned Judges, it was held by Bhagwati, J. in bis concurring
judgment, that the expression 'personal liberty' in Article 21 is of
the widest amplitude 1md it covers a variety of rights which go to
constitute the personal liberty of man and some of them have been
raised to the status of distinct fundamental rights under Article 19.
D It ~as further observed that. Articles 14, I 9 and 21 are not to be
interpreted i~ water-tight compartments, and consequently,. a law
depriving a person of personal liberty and prescribing a procedure
for that purpose within the meaning of Article 21 has to stand the
. test of one or more of the fundamental rights conferred under
· Article 19 which may be applicable in a given situation, ex-hypothesi
E it must also be li,able to be tested with reference to Article 14. The
principle of reasonableness pervades ail· the three Articles, with the
result, that the procedure contemplated by Article 21 must be 'right
and just and fair' and not 'arbitrary' fanciful, or 'oppressive', other-
wise, it should be no procedure at all and the requirement o"f
Article 21.would not be satisfied.
F
Article 21 reads as under:

"No person shall be deprived "f his life or personal .
liberty except.according to procedure estabhshed by law.;'
G
If this Article is expanded in accordance with the interpretative
principle indicated in Maneka Gandhi, it will read as follows :

"No person shall be deprived of his life or personal
H liberty except according to fair, just at\d reasonable proce·
dure established by valid law."
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 223
i
· Jn the converse positive form, the expanded Article will read
A
.as below;

"A peron may be deprived of his life or personal
liberty in'accordance with fair, just and reasonable proce-
dure estab)ished by. valid law." B

Thus expanded_ and read for interpretative purposes, Article 21
. clearly bring• out the implication, that the Founding Fathers recog-
nised 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, c
in the Constitution which show that the Constitution-makers .were
fully cognizant of the existence of death pel)alty for murder and' f
certain other offences in the Indian Penal Code. ·Entries I and 2 in
List III-Concurrent List-of the Seventh Schedule, specifically refer

.. to the Indian Penal Code and the Code of Criminal Procedure .as in
force at the commencement of ·the Constitution. Article 72 (I) (c)
specifically invests the President wfth . power to suspend, r~mit or
D

commute the se0 tence of any person convicted of any offence, and,
also "in aH 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 pr commute, inter alia the sentence of
death .of any person convicted of murder or other capital offence E
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 revers'al of bis acquittal by the. trial Court.
Under the successive Criminal ·Procedure Codes which have been in
force for about I 00 years, a sentence of death is to be carried out by F
hanging. ·In view of the aforesaid constitut.ional 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 executi)m by.
hanging, constitutes an unreasonable, crue.1 or unusual punishment.
By reason of the same constitutional postulates, it cannot be 'said
G'
that the framers of the Constitution considered death sentence for
murder or the prescribed traditional mod~ of' its execution a~ a
•
degrading punishment which would defile "the dignity of the indivi-
dual" within the contemplation of the Preamble to the Constitution.
-On parity of reasoniiig, it cannot besaid that death penalty for the H
olfence of mur<Jer violates th~ l/asic structure of the <;:onstitution •
..
•
224 SUPREME. COURT REPORTS [1983] I s.c.R.
A . . Before we pass on to the main Question No. Ii, we may
dispose of another·contention convassed by Dr. L.M. Singhvi.

It i• pointed out that Indja, as a member of the International
Community, was a participating delegate at the international con- ·
ference ·that made the Stockholm Declaration on December 11,
B 1977, that India has also accepted the International Covenant on
Civil. and Political Rights adopted by the. Centr.al Assembly of
the United Natior.s, which came into force on March 23, 1966,
and. to which some 47 countries, including India, are a
Party. This being the position, it is stressed, India stands
committed to the abqlition of the death penalty. It is contended
c that the constitutional validity and interpretation of the impugne~
·limb of Section 302, Peria! Code, and the sentencing procedure for
capiial cases provided in Section 354 (3) Of the Code of Criminal ~··.
Procedure, 1973, must be considered in the light of the aforesaid
Stockholm Declaration and the international Covenant, which
o' represent the evolving attitudes and standards of decency in a
maturing world. ..
-

Let us examine this contention. The European Convention
of Human Rights came into force on September l, 1953, and 18
countries.had signed this Convention on November !I, i950. India
·acceded to this Resolution of the Convention on March - 27, 1979.
E The'lnternational Covenant on Civil.and Political Rights, i711er alia,
provides:

0
Article 6 (!) Everylrnman being has the 'lnherent right
to .life. This ~ight .shall be protected by law, No one
F shall be arbitratily deprived of his life. ·

(2) In countries which have not abolished· the death .
penalty, sentence of death may be imposed only for fhe
most serious crimes in accordance with the law in force at
the time of, the commission of the crime ... " .
G
It will be seen that clauses (I) and (2) of Article 6 do not abolish or
prohibii the imposition of death. penalty in all circumstances.. All
that they require is that, firstly, death penalty shall not be arbitrarily
· inflicted; secondly, it shall be imposed only for most serious crimes
in accordance with a law, which shall not be an ex post facto
legislation, Thus, the requirements of these clauses are substantially
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 225
the same as the guarantees or prohibitions contained in Articles 20 A
and 21 of our Constitution. India's commitment therefore does not
go beyond what is providecl in the Co;stitution and the Indian Penal
Code and the Criminal Procedure Code. The Penal Code prescribes
death penalty as an alternative punishment only for heinous crimes
which are not more than seven in number. Section 354 (3) of the
Criminal Procedure Code, 1973, as we shall presently discuss, in B
keeping with the spirit of the Internaiional Covenant, has further
restricted the area of death penalty. India's penal laws, including
the impugned- provisions and their application, are thus entirely in
accord with its international commitment.

It will be pertinent to note that most of the countries including c
those who have subscribed to this International covenant, retain
death penalty for murder and certain other crimes even to the pre-
sent day in their penal laws. Neither the new interpretative dimen-
sions gi_ven to Articles 19 and 21 by this Court in Maneka Gandhi
and Charles Sobraj v. The Superintende11t Central Jail, Tihar, New
·D
Delhi(') nor the acceptance by India of the International Covenant
on Civil and Political Rights, makes any change in the prevailing
standards of decency and human dignity by which counsel require
us to judge the constitutioual validity of the impugned provisions.
The International Covenant, as already noticed, does not outlaw
capital punishment for murder, altogether •. E

For all the foregoing reasons, we would' answer the first main
question in the negative. This takes us to Question No. II.

Question No. II.
F
Are the provisions of Section 354 (3) of the Code of Crim_inal
J'rocedure, 1973 unconstitutional ? That is the question. The cons-
tit_utional validity of section 354 (3) is assailed on these grounds :

(i) (a) Section 354 (3) of the Code of Criminal Procedure,
1973, delegates to the Court the_ duty to legislate
G
the field of 'special reasons' for choo_sing between
life and death, and

H
(IJ [1979J 1 s.c.R.. s11.

•
226 SUPREME COURT REPORTS [1983] I S.C.R.

A (b) permits imposition of death penalty in an arbitrary
and whimsical manner in as much as it does not
lay down any rational principies or criteria for
invoking this extreme sanction. (Reliance has
been placed on Furman v. Georgia (ibid).

B
(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 comes to be restricted only to those types of
grave murders and capital offences which· imperil
c the very existence and security of the State. (Reliance
for this argument has been placed on Rajendra Prasad's
case (ibid) ).

•
As against this, the learned Solicitor-General submits that the
policy of the law in the matter of imposition of death sentence is
D writ large and clear in Section 354 (3), namely, that life imprison-
ment is the rule and death sentence an exception ; that the correct
approach should be to apply this policy to the relevant facts of the
particular case, bearing on tbe question of sentence, and to find out
if there are any exceptional reasons justifying impositionof the death
penalty, as a departure from the normal rule.
E
It is submitted that conferment of such sentencing discretion
on the courts, to be exercised judicially, in no sense, amounts to dele-
gation of the legislative powers by Parliament.

Shri Sorabji further submits that there is no inherent impossi-
F bility in formulating broad guidelines consistent with the policy
indicated by the legislature, for the exercise of the judicial functions . '1,
under Section 354 (3). He emphasises that only broad guideline~. .>-..
as distinct from rigid rules, can be laid down by the Court. Since
the discretion-proceeds the argument-is to be exercised judicially
after .taking into consideration ail the aggravating and mitigating
G
circumstances relating to the crime and the· criminal in a particular
case, and ample safeguards by way of appeal and reference to the
superior courts against erroneous or arbitrary .exercise of the sen·'
tencing discretion have been provided, Section 354 (3) cannot be
H said to be violative of Articles 14, 19 and 21 or anything else in the ~
Constitution. '
BACHAN SINGH v. PUN1AB (Sarkaria, J.) 227

Before embarking upon a discussion of the arguments advanced A
on both sides, it is necessary to have a peep into the history and the
legislative background of the procedurll provisions relating to sen-.
tencing in the Code of criminal Procedure.

Under the Code ·of Criminal Procedure, 1898, as it stood B
before its amendment by Act No. 26 of 1955, even for the seven
offences mentioned earlier, which are punishable in the alterna-
tive with death, the normal sentence was the death sentence,
and if the Court wanted to depart from this rule, it had to give
reasons for doing so. This requirement was embodied in sub·
•
section (5) of Section 367, which, as it then stood, was as c
follows : "If the accused is convicted of an offence punishable
with death and the Court sentences him to any punishment other
•
than death, the Court shall in its judgment state the reason why
sentence of death was not passed.

D
The Law Commission in its 35th Report (Vol. I), made the
following comments on this provision :

" ... a considerable body of opinion is in favour of a
provision requiring the court to state its reasons for
imposing the punishment either of death or of E
imprisonment for life. Further, this would be good
safeguard to ensure that the lower .courts examine the
case as elaborately from the point of view of sentence
as from the point of view of guilt ... It would increase
the confidence of the people, in the courts, by showing
that the discretion is judicially exercised. It would F
also facilitate tbe task of the High Court in appeal or
in proceedings for confirmation in respect of tl;ie sen-
tence (where the ~entence awarded is that of death) or
in proceedings in revision for enhancement of the sen-
tence (where the sentence awarded is One of impriSOl)-
ment of life."
G

In deferance to this recommendation, section 66 of the Code of
··criminal Procedure (Amendment) Act, 1955 (XXVI of 1955) deleted
old sub-section (5) of Section 367 with effect from January l, 1956, H
and thereafter, for such capital offences, it was left to the Court, on
the facts of each ca~, to pass, iq its discretion, for reason to be
228 SUPREME COUR'r REPORTS (1983) l s.c.R.

A recorded, the sentence of death or the lesser sentence. This led
to some difference of opinion whether, even after the Amendment
of 1955, in case of murder the normal punishment was death or
imprisonment for life (See A.LR. Commentaries on the \:ode of·
· Criminal Procedure, Vol. 3, page 565, by D.V. Chitaley and S.
Appu Rao). Overruling its earlier decision, the Bombay High
B Court in the State v. Vali Mohammad,(') held that death ·is not a
normal penalty for murder. As against this, the Division Bench
of the Madras High Court in Veluchami Thevar,( 2 ) held that death
was the normal punishment where there were ilo extenuating
circumstances. The third set of cases held that both the sentences
were normal but the discretion as regards sentence was to ~ exer-
c cised in the light of facts and circumstances of the case.

This view appears to be in accord with the decision of this
Court in Iman Ali & Anr. v. State of Assarn.(3 ) In that case, there
was a clear finding by the Court of Session which had been upheld
D by the High Court, that each of the two appellants therein, com- ...
mitted a cold-blooded murder by shooting two inmates of the
house simply with the object of facilitating commission of dacoity
by them. Those persons were· shot and killed even though they had
not tried to put up any resistence. It was held by this Court
(speaking through Bbargava, J.) that in these circumstances where
E the murders were committed in cold-blood with the sole object of
committing dacoity, the Sessions Judge bad not exercised bis discre-
tion judicially in not imposing the death sentence, and the High
Court was justified in enhancing the sentence of the appellants from
life imprisonment to death,

F Jagmohan Singh's case, which we shall notice presently in
further detail, proceeds on the hypothesis that even after the dele-
tion of sub-section (5) of Section 367 in the. Code of 1898, both the
alternati.ve sentences provided in Section 302, Penal Code are normal
punishment for murder, and the choice of either sentence rests· in
G the discretion of the Court which is to be exercised judicially, after
taking into account all the relevant circumstances of the case.

(l) AIR 1959 Born, 294 (299).
(2) A.I.R. 1965 Mad, 48 at p. 49,
H (3) (1968] 3 S.C.R. 6t0.
• ,, , ' . . , . :; I \ ;
BACHAN SINGH v. PUNJAB (Sarkaria, I.)

Section 354 (3) of the Code of Criminal Procedure, 1973, marks A
a significant shift in the legislative policy underlying the Code of
1898, as in force immediately before Apr. l, 1974, according to which
both the alternative sentences of death or imprisonment for life provi-
ded for murder and for certain other capital offences under the Penal
Code, were normal sentences. Now, according to this changed
legislative policy which is patent on the face of Section 354 (3), the B
, normal punishment for murder and six other capital offences under
the Penal Code, is imprisonment for life (or imprisonment for a term
of years) and death penalty is an exception. The Joint Committee of
Parliament in its Report, stated the object and reason of making this
change, as follows :

"A sentence of death is the extreme penalty of law
and it is but fair that when a Court awards that sentence in
a case where the alternative sentence of imprisonment
for life is also available, it should give special reasons in
support of the sentence " D

Accordingly, sub-section (3) of Section 354 of the current Code
provides :

"When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for
E I
., 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 r
sentence.'' I
.,
I·
-.:.>~---
In the context, we may also notice Section 235. (2) of the Code
of 1973, because it makes not only explicit, what according to the
F i
I
decision in Jagmohan' s case was implicit in the scheme ·of the Code,
but also bifurcates the trial by providing for two hearings, one at
the pre-conviction stage and another at the pre-sentence stage. It
requires that : G
I
f
'

"If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of Section 360,
hear the· accused on the question of sentence, and then
pass sentence on him according to faw." H

I'
.
. '
I.
230 SIJPR8ME COIJl\T REPORTS [1983] 1 s.c.11"'
A The Law Commission on its 48th Report had pointed out this
deficiency in the sentencing procedure :

"45. It is now being increasingly recognised that a
rational and consistent sentencing policy requires the
8 removal or several deficiencies in the present system.
One such deficiency. is the lack of comprehensive in-
formation as to characteristics and background of the
offender.

The aims of sentencing 1-Themselves obscure-
become all the more so in the absence of information on
which the correctional process is to operate. The public .A..
I
as well so the courts themselves are in the dark about
judicial approach in this regard._

We are of the view that the taking of evidence as to
D
the circustances relevant to sentencing should be encouraged
and both the prosecution and the accused should be allowed
to cooperate in the process."
,
By enacting Section 235 (2) of the New Code, Parliament has
E accepted that recommendation of ihe Law Commission. Although
sub-section (2) of Section 235 does not contain a specific provision
as to evidence and provides only for hearing of the accused as to
sentence, yet it is implicit in this provision that if a request is made
in that behalf by either the prosecution or the accused, or by both,
the Judge should give the party or parties concerned an opportunity
F of producing evidence or material relating to the various factors
bearing on the question of sentence. "Of course", as was pointed
out by this Court in Santa Singh v. State of Punjab,(') "care would
have to be taken by the Court to see that this hearing on the
question of sentence is not turned into an instrument for unduly
protracting the proceedings. The claim of due and proper hearing
G would have to be harmonised with the requirement of expeditious
disposal of proceedings."

We may also notice Sections 432, 433 and 433A, as they throw
H light as to whether life imprisonment as currently administered in

(I) A.I.R. 1976 SC. 2286.

•• :
llACHAN SINGH v. PONiAB (Sarkaria, J,) 231

India, can be considered an adequate alternative to the capital sen- A
tence even in extremely heinous cases of murder.

Sections 432 and 433 of the Code of 1973 continue Sections
401 and 40~ of the Code of 1898, with necessary modifications which
bring them in tune with Articles 72 and 161 of the Constitution.
Section 432 invests the "appropriate Government" (as defined. in B
sub-section (7) of that Section) with power to suspend or remit
sentences. Section 433 confers on the appropriate Government
power to commute sentence, without the consent of the person
sentenced. Under clause (a) of the Section, the appropriate Govern-
men(may commute a sentence of death, for any other punishment
provided by the Indian Penal Code. c
With effect from December 18, 1978, the Code of Criminal
Procedure (Amendment) Act, 1978, inserted new Section 433A,
which runs as under :
D
"433A. Restriction on powers of remission or commuta-
tion In certain cases-Notwithstanding anything contained
in Section 432, where a sentence of imprisonment for life ·
is imposed on conviction of a person for an offence for
which death is one of the punishments. provided by law or E
where a sentence of death imposed on a person has· been
commuted under Section 433 into one of imprisonment for
life, such person shall not be released from prison unless he •
had served at least fourteen years of imprisonment."

It may be recalled that in Jagmohan this Court had observed F
that, in practice, life imprisonment amounts to 12 years in prison.
Now Section 433A restricts the power of remission and commuta-
' .
tion conferred on the appropriate Government under Sections 432
and 433, so that a person who is sentenced to imprisonment for life
or whose death sentence is comO)uted to imprisonment for life must
ser.ve actual imprisonment for a minimum of 14 years. G
_, We may next notice other provisions of the extent Code (corres-
ponding to Sections 374, 375, 376 and 377 of the repealed Code)
bearing on capital punishment. Section 366 (i) of the Code requires
the Court passing a sentence of death to submit the proceedings to H
the High Court, and further mandates that such a sentence shall not
be execilted unless it is confirmed by the High Court. On such a
"
232 SUPREM~ COUl!.t RBPOl!.ts
'· !
(1983) 1 s.c.&.

A reference for confirmation of death sentence, the High Court is
required to proceed in accordance with Sections 367 and 368. Sec-
tion 367 gives power to the High Court to direct further inquiry to
be made or additional evidence to be taken. Section 368 empowers
the High Court to confirm the sentence 9f death or pass any other
sentence warranted by law or to annul or alter the conviction or
B ord~.r a new trial or acquit the accused. Section 369 enjoins that in
every case So submitted, the confirmation of the sentence, or any
new sentence or order passed by the High Court, shall, when such
court consists of two or more Judges, be made, passed and signed by
at least two of them. Section 370 provides that where any such case
is heard before a Bench of Judges and such Judges are equally divi-·
c ded in opinion, the case shall be referred to a third Judge.

In this fasciculus of Sections relating to confirmation proceedings
in the High Court, the Legislature has provided valuable safeguards
of the life and liberty of the subject in cases of capital sentences. These
provisions seek to ensure that where in a capital case, the life of the
D
convicted person is at stake, the entire evidential material bearing on
the innocence or guilt of the accused apd the question of sentence
. must be scrutinised with utmost caution and care by a superior
Court.

The High Court has been given very wide powers under these
E provisions to prevent any possible miscarriage of justice. In State
of Maharashtra v. Sindhi, (') this Court. reiterated, with emphasis,
that while dealing with a reference for confirmation of a sentence of
• death, the High Court must consider· the proceedings in llll their as·
pects reappraise, reassess and reconsider the entire facts and law and,
if necessary, after taking additional evidence, come to its own conclu-
sions on the material on record in regard to the conviction of the
accused (and the sentence) independently of the view expressed by
the Sessions Judge.

Similarly, where on appeal, the High Court reverses an acquit·
G
.
tal and convicts the . accused person and sentences. him to death,
Section 379 of the Code of 1973, gives him a right of appeal to tile
Supreme Court. Finally, there is Article 136 of the Constitution
under which the Supreme Court is empowered, in its discretion, to
H
(I) A.l,R. 1975 S.C. 1665.
' -· ' • I , .; ,'.
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 233

entertain an appeal on behalf of a person whose sentence of death A
awarded by the Sessions Judge is confirmed by the High Court.

In the light of the above conspectus, we will now consider the
effect of the aforesaid legislative changes on the authority and
efficacy of the propositions laid down by this Court in Jagmohan's
case. These propositions may be summed up a's under : B

(i) The general. legislative policy that underlines the struc·
ture of our criminal law, principally contained in the
Indian Penal Code and the Criminal Procedure Code,
is to define an offence with sufficient clarity and to
p.rescribe only the maximum punishment iherefor, and c
to allow a very . wide discretion to the Judge in the
matter of fixing the degree of punishment.

With the solitary exception of Section 303, the
• same policy permeates Section 302 and some other sec- D
tions of the Penal Code, where the maximum punish-
ment is the death penalty. ·

(ii) (a) No exhaustive enumeration of aggravating or
mitigating circumstances which should be conside-
red when sentencing an offender, is possible. "The E
infinite variety of cases and facts to each case
would make general standards either meaningless
'boiler plate' or a statement of the obvious that
no Jury (Judge) would need." (Referred to
McGauthe v. Ca/ifornia(l)
F
(b) The impossibility of laying down standards is at
the very core of the criminal law as administered
in India which invests the judges with .a very wide
discretion in the matter of fixing the degree of
punishment.
G

(iii) The view taken by the plurality in Furman v. Georgia
decided by the Supreme Court of the United States; to
a
the effect, that law Which gives uncontrolled and un-
H
(I) [1971] 402.US 183.
234 SUPREME COUltt REPOl\TS (1983] I s.c.il.
A guided discretion to the Jury (or the Judge) to choose
arbitrarily between a sentence of death and imprison-
ment for a capital offence, violates the Eighth Amend·
ment, is.not applicable in India. We do not have in
our Consti\ution any provision like the Eighth Amend-
ment, nor are we at liberty to apply the test of reason·
B ableness with the freedom with which the Judges of
the Supreme Court of America arc accustomed to
apply "the due process" clause. There are grave
doubts about the expediency of transplanting western
experience in our country. Social conditions are diffe-
c rent and so also the general intellectual level. Argu-
ments which would be valid in respect of one area of
the world may not hold good in respect of another
area.

(iv) (a) This discretion in the matter of sentence is to be
D exercised by the Judge judicially, after balancing
all the aggravating and mitigating circumstances'
of the crime.

(b) The discretion is liable to be corrected by superior
courts. The exercise of judicial discretion on
E well-recognised principles is, in the final analysis,
the safest possible safeguard for the accused.

In view of the above, ft will be impossible to
say that there would be at all any discrimination,
· since crime as crime may appear to be superfi·
F cially the same but the facts and . circumstances
of a crime are widely different. Thus considered
the provision in Section 302, Penal Code is not
violative of Article 14 of the Constitution on the
ground that it confers on the judges an unguided
and uncontrolled discretion in the matter of awar-
G
ding capital punishment of imprisonment for
life.

(v) (a) Relevant facts and circumstances impinging on
H the nature and circumstances of the crime can be
brought before the Court at the preconviction
l!ACHAN s!NOH v. PUNJAB (Sarkaria, J.) 2~S

stage, notwithstanding the fact that no formal A
procedure for producing evidence regarding such
. facts and circumstances had been specifically pro-
vided. Where counsel addresses the Court with
regard to the character and standing of the accu-
sed, they are duly considered by the Court unless
B
there is something in the evideqce itself which
belies him or the Public Prosecutor challenges the .
facts.

(b) It is to be emphasised that in exercising its discre-
tion to choose either of the two alternative senten-
ces provided in Section 302, Penal Code, "the
c
Court is principally concerned with the facts and
circumstances whether aggravating or mitigating,
which are connected with the particular crime
under inquiry. All such facts and circumstances
are capable of being proved in accordance with the D
provisions of the Indian Evidence Act in a trial
regulated by the Cr. P.C. The trial does not come
to an end until all the relevant facts are proved
and the counsel on both sides have an opportunity
to address the Court. The only thing that remains
is for the Judge to decide on the guilt and punish-
•E
ment and that is what Sections 306(2) and 309(2)
Cr. P.C. purport to provide for. These provisions
are part of the procedure established by law and
unless it is shown that they are invalid for any
other reasons they must be regarded as valid. No
reasons are offered to show that they are constitu- F
tionally invalid and hence the death sentence
imposed after trial in accordance with · the proce-
dure established by law is not unconstitutional
·under Article 21."
' . (emphasis added) G

A study of the propositions set out above, will show that in
substance, the authority of none of them bas been affected by the
legislative changes since the decision in Jagmohan' s case. Of course, H
two of them require to be adjusted and attuned to the shift in the
'
236 SUPREME COURT REPORTS
' ~ <' ;,

(1983) 1 S.C.R.
~

A legislative policy. The first of those propositions is No. (iv) (a)
which postulates, that according to the then extant Code of Criminal
Procedure both the alternative sentences provided in Section 302,
Penal Code are normal sentences, and the Court can, therefore, after
weighing the aggravating and mitigating circumstances of the
particular case, in its discretion, impost!' either of those sentences.
B 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 !Vith imprisonment for life or
imprfsonment for a term of years, not to impose the sentence of

..,,.
death on that person' unless there are "special reasons" -to be recor-
ded-for such sentence, The expression "special reasons" in the
c context of this provision, obviously means "exceptional reasons"
founded on the exceptionally grave circumstances of the particular I
case relating to the crime as well as the criminal. Thus, the legisla-
tive 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
D penalty should be imposed only in extreme cases.

In this view we are in accord with the dictum of this Court in
Ba/want Singh v. State of Punjab ('), wherein the interpretation of
• Section 354(3) first came up ·for consideration. After surveying the
E legislative background, one of us (Untwalia, J,) speaking for the
Court, summed up the scope and implications of Section 354 {3),
thus:

"Under this provision the Court is required to state the
reasons for the sentence awarded· and in the case of sen-
F tence of death, special reasons are required to be stated. It
would thus be noticed that awarding of the sentence other
than the sentenceJof death is the general rule now and only
special reasons that is to say, special facts and circumstances
in a given case, will warrant the passing of the death sen-
tence. It is unnecessary nor is it possible to make a cata-
G logue of the special reasons which may justify the passing
of the death sentence in a case."

While applying proposition (iv) (a), therefore, the Court has to bear
H'
(!) A.I.R. 1976 SC 231=[1976) 2 SCR 684.
BACHAN SINGH v. PUNJAB (Sarkaria, J.) 237

in mind this fundamental principle of policy embodied in Section A
354(3).
-·
Another proposition, the application of which, to an extent,
is affected by the legislative changes, is No. (v). In portion (a) of
that proposition, it is said that circumstances impinging on the B
nature and circumstances of the crime can be brought on record
before the pre-conviction stage. In portion (b), it is emphasised
that while making choice of the sentence under Section 302, Penal
Code, the Court is principally concerned with the circumstances con·
nected with the particular crime under inquiry. Now, Section 235(2)
provides for a bifurcated .trial and specifically gives •the accused c
I
person a right of pre-sentence hearing, at which stage, he can bring
··1' '
on record material or evidence, which may not be strictly relevant
to or connected with the particular crime under inquiry, but never·
theless, have, consistently with the policy underlined in Section
354(3), a bearing on the choice of sentence. The present legislative
policy discernible from Section 235(2) read with · Section 354(3) is D
that in fixing the degree of punishment or making the choice of
·sentence for various offences, including one under Section 302,
.Penal Code, the Court should not confine its consideration princi·
pally" or merely to the circumstances connected with the particular
crime, but also give c!ue consideration to the circumstances of the
criminal. E

·r Attuned to the legislative policy delineated in Sections 354(3)
and 235(2), propositions (iv) (a) and M (b) in Jagmohan, shall have
to be recast and may be stated as below :

(a) The normal rule is that the offence of moder shall be
F
punished with the sentence of life imprisonment. The
court can depart from that rule and impose the sen-
tence of death only if there are special reasons for
doing so. Such reasons must be recorded in writing
before imposing the death sentence.
G
(b) While considering the question of sentence to be impo·
sed for the offence of murder under Section 302 Penal
Code, the court must have regard to every relevant
circumstance relating to the crime as well as the crimi- H
!lal, If the court finds, but -not otherwise, that the
•
238 SUPREME COURT REPORTS [1983] I s.c.R.
A offence is of an excepti~nally depraved and heinous
character and constitutes, on account of its design and
the manner of its execution, a source of grave danger
to the society at large, the court may impose the death
sentence.
B
The soundness or application of tbe other propositions in
Jagmohan, and the premises on which they rest, are not affected in
any way by the legislative changes since effected. On the contrary
these changes reinforce the reasons given in Jagmohan, for holding
that the impugned provisions of the Penal Code and the Criminal
c Procedure Code do not offend Articles 14 and 21 of the Constitution.
Now, Parliament has in Section 354(3) given a broad and clear
guideline which is to serve the purpose of lodestar to the court in
the exercise of its sentencing discretion. Parliament has advisedly
not restricted this sentencing discretion further, as, in its legislative
judgment, it is neither possible nor desirable to do so. Parliament
D could not but be aware that since the Am.ending Act 26 of 1955, '·
death penalty has been imposed by courts on an extremely small
percentage of persons convicted of murder-a fact which demons-
trates that courts have generally exercised their discretion in inflict-
ing this extreme penalty with great circumspection, caution and
restraint. Cognizant of the past experience of the administration
E of death penalty in India, Parliament, in its wisdom, thought it best
and safe to leave the imposition of this gravest punishment in gra-
vest cases of murder, to the judicial discretion of the courts which
are manned by persons of reason, experience and standing in the
profession. The exercise of this sentencing discretion cannot be said
to be untrammelled and· unguided. It is exercised judicially in accor-
F
dance with well-recognised principles crystalised by judicial decisions,
directed along the broad contours of legislative policy towards the
signposts enacted in Section 35.4(3).

The new Section 235 (2) adds to the number of several other -
G safeguards which were embodied in the Criminal Procedure Code of •.
1898 and have been re-enacted in the Code of 1973. Then, the
errors in the exercise of this guided judicial discretion are l.iable to
be corrected by the superior courts. The procedure provided in ,_
Criminal Procedure Code for imposing capital punishment for
H murder and some other capital crimes under the Penal Code can·
not, by any reckoning, be said to be unfair unreasonable and unjust.
•
BACHAN SINGH v, PUNJAB (Sarkaria, J.) 239

Nor can it be said that this sentencing discretion, with which the A
courts are invested, amounts to delegation of its power of legisla-
tion by Parliament. The argument to that effect is entirely miscon-
ceived. We would, therefore, re-affirm the view taken by this Court
in Jagmohan, and hold that the impgned provisions do not violate
'' Articles 14, 19 and 21 of the Constitiltion.
B
Now, remains the question whether this Court can lay down
standards or norms restricting the area of the imposition of death
penalty tci a narrow category of murders,

Dr. Chitale contends that the wide observations in Jagmohan)as
to the impossibility of laying down standards or norms in the matter c
of segtencing are too sweeping. It is submitted that soon after the ·
.decision .in Furman, several States in U.S.A. amended their penal
statutes and brought them in conformity with the requirements of
Furman, Support has also been sought for .this argument from
Gregg v. Georgia, wherein the Supreme Court of the United States D
held that the concern expressed in Furman decision that death
penalty may not be imposed in an arbitrary or capricious manner
could be met by a carefully drafted statute ensuring that the senten-
cing authority was given -adequate guidance and information for
determining the appropriate sentence, a bifurcated sentencing procee-
ding being preferable as a general proposition. E
If by "laying down standards", it is meant that 'murder'
should be categorised before han·d according to the degrees of its
culpability and all the aggravating and mitigating circumstances
should be exhaustively and rigidly enumerated so as to- exclude all
free-play of discretion, the argument merits rejection. F
j) As pointed out in Jagmohan, such "standardisation" is well-
' nigh impossible.

Firstly, there is little agreement· among penologists and jurists
as to what information about the crime and criminal is relevant and G
what is not relevant for fixing th.e dose of punishment for a person
...,' convicted of a particular offence. According to Cessare Beccaria, who
is supposed to be the intellectual progenitor of today's fixed senten-
cing movement 'crimes are only to be measured by the injnry done
to socie1~'. But t)le 20th Century sociologists do not wholly asree H
240 SUPREME COURT REPORTS [!983) 1 s.c.a.

A with this view. In the opinion of Von Hirsch, the "seriousness of.
a crime depends both on the harm done (or risked) by the act and
degree of the actor's culpabilitf'. But how. is the degree of that .
· culpability to be. measured. Can any thermometer be devised to
measure its degree ? This is a very baffling, difficult and intricate
problem. '
B
Secondly, criminal cases do not· fall into set-behavioristic
patterns. Even within a single-category offence there. are infinite,
unpredictable and unforceable variations. No two cases are
exactly identical. There are countless permutations and combina-
tions which are beyond the anticipatory capacity of the human
c calculus. Each case presents its own distinctive features, its peculiar
•
combinations of events and its unique ·configuration of .facts. ·
"Simply in terms of blame-worthiness or dessert criminal cases are
diferent from one another in ways that legislatures cannot anticipate,
and limitations of language prevent the precise description of
differences that can be anticipated."(') 'This is particularly true of
D
murder. "Th~re is probably no offence", observed Sir Ernest
Growers, Chairman of the Royal Commission, "that varies so widely
both in character and in moral guilt as that which falls within the
legal definition of murder." The futility of attempting to lay down
exhaustive standards was demonstrated by this Court in Jagmohan
E by citing the instance of the Model Penal Code which was presented
to the American Supreme Court in McGoutha.

Thirdly, a standardisation of the sentencing process which
leaves little room for judicial discretion to take account of variations
in culpability wlthin single-offence category ceases to be judicial. It
F tends to sacrifice justice at the alter of blind. uniformity. Indeed, •
there is a real danger of such mechanical standardisation degenera-
ting into a bed of procrust"ean cruelty.

Fourthly, standardisation or sentencing discretion is a policy
matter which belongs to the sphere of legislation. When· Parliament
G as a matter of sound legislative policy, did not deliberately restrict,
control or standardise the sentencing discretion any further than that
incoropassed by the broad contours delineated in Section 354 (3).

(I) Messinger and Bittner'• Crimonology Year Book (Ibid) Albert W. . ...
ff Alcberler's article at page 421.
. BACHAN SINGH v. PUNJAB (Sarkaria, J.) 241

the Court would not by over-leaping its bounds rush to do what· A
Parliament, in its wisdom, varily did not do. / ·

We, must leave upto
. the Legislature,
. the things that are Legis-
lature's. "The highest judicial duty is to recognise the limits on
judicial power and to permit the democratic processeS'to deal with · B
matters falling outside of those limits". As Jlldges, we have io resist
the temptation to. substitute our own value choices for the will of the
peoJ?le. Since substituted judicial 'made-to-order' standards, howso-
.ever painstakingly made, do not bear the peoples imprimatur, they
may not have the same authenticity and efficacy as the silent zones
and green belts designedly marked out and left open by Parliament c
in its legislative plannirig for fair-play of judicial discretion to take
. care of the variable, unpredictable circumstances _of the individual
cases, relevant to Individualised sentencing. When judges, acting
individually or colJectively; ·in their benign anxiety. to do what they
' take upon
think is morally j!Ood for the people, . themselves, the.res-
ponsibility of setting down social norms of conduct. There is every D
danger, despite their effort to make a rational guess of the notions of
right and wrong prevailing. in the community at large and despite
their intention to abide by the, .dictates gf mere reason, that
they might write their own peculiar view or personal pre-dilection
•into the Jaw, sincerely mistaking that changeling for what
they perceive to be the community ethic. The perception of E
· 'community' standards or ethics may vary from Judge to Judge.
• In this sensitive, highly controversi.al 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 repre- ·
sentatives of the people in Parliament, particularly when Judgesbave F
no divining rod to divine accurately the will of the people. In
Furman, the Hon'ble Judges claimed.to articulate .the contemporary
standarJls of morality among the· American peopie. But speaking
through public referenda, Gallup polls and the state legislatures, the
G
American people sharply rebuffed them. We must draw a lesson·
from the same.
\
What the iearned Chief Justice, who is amongst us in this case
has s.Vd · recently in Gurbaksh Singh Sibbia and others v. State of
Punjab(') in. the context of laying down standards in the d'iscre- · H
(I) Criminal AppeaJs·Nos, 33? et!'. 9f 1977 ~11d 81 and 82of1978,
/
' '

242 SuPREME CoiJRT REPORTS [1983) Ls.c.R.

·tionary area of anticipatory bail, comes in as a timely reminder. In
principle, these ·observations aptly apply to the desirahility and
feasibility of laying down standards in the area of sentencing discre·
tion, also. Let us therefore, hark to the same:
/

"Generalisations on matters which rest on \liscretion and the
B attempi to discover formulae of universal application when facts are
bound to differ from case .to case frustrate the very purpose of con-
ferring discretion. No two cases are alike on facts and, therefore,
Courts have to be allowed a little free play in the joints if the con-
ferment of. discretionary power is to be meaningful. There is no
risk involved in entrusting a wide discreiion to the Court of Session •
c and the High Court in granting anticipatory. bail because, firstly,
.these are higher courts manned by experienced persons, secondly,
their orders are not final -but are open to appellate o.r revisional
scrut'iny an<! above all because, discretion has always to be exercised
--by courts judicially and not according to whim, caprice or fancy.
On the other band, there is a risk .in foreclosing categories of cases
D in which anticipatory bail may be allowed because life throws uP
unforeseen possibilities and offers new challenges. Judicial di.scre-
.•
tion has to. be free enough to be able to take these possibilities in
its stride and to meet these challenges.. While dealing with the
necessity for preserving judicial discretion unhampered by rules of
general application, Earl Loreburn L.C. said in •Hyma~ and Anr. v.•
Rose(').

"I desire in the first instance to point out that the
discretion given by the section is v~ry wide .. Now it seems
to me that when the Act is so express to provide a wide
discretion .. it is not advisable to lay dow~ any rigid rules
F for·guiding that discretion. I do not doubt that the rules
enunciated by the Master of the Rolls in the present case are
useful maxims in general, and that in general they reflect
the point of view from which judges would regard an
application for relief. But I thi.nk it. ought to be distinctly
understood that there may be cases in which any. or all of
G
them may be disregarded. If it were otherwise, tbe ,free
discretion given by the statute would be fettered by limita·
tions which have nowhere been en'acted. It is one thing to
decide ~hat is the true meaning of the language contained
H
(I) [19J2j A.C. 623,
BACHAN SINGH v. PUNJAB (Sarkaria, J.J 243
\
in an Act of Parliament. It is quite a .different thing to A
place cond,itions upon a free discretion enttusted by.statute
to the Court where the conditions ·are not based upon
statutory enactment at all. It is not safe.' I think, to say'
tbat the Court must and will always insist upon certain
things when the Act does not require them, and the facts of
B
some unforeseen case may make the Court wish it had kept'
a free band."

"Judges have to decide cases as they come before ·them, mind·
ful of the need to keep passions and prejudices out of the.ir decisions. ·
And it will be strange if, J:>y employing judicial artifices and techniques, -C
we cut down the discretion so wis.ely conferred upon the Cou.rts, by'
devising a formula which will confine the power to grant anticipa-
tory bail wiihin a strait-jacket. While laying down cast-iron rules
in a matte~ like granting anticipatory bail, as .the High Court has
done, itis apt to be overlooked that even Judges can have but an
' imperfect awareness of the needs of new situations. Life is never,
s.tatic and every situation has to be assessed in the context of emerg·
jng· concerns as and when it arises. Therefore, even if we were to
frame a 'Code for the grant of anticipatory bail', which really is the
business ofthe legislature, it can at best furnish broad guidelines and
cannot compel .blind adherence." '
E
From what has been extracted above, it is. clear that this Court
should not venture to formulate rigid standards in an area in which
the Legislature so warily . treads. Only broad guidelines consistent
with the policy indicated by the Legislatu.re in Section 354(3) can be
laid down .. Before we come to this aspect of the matter, it will be
fair to notice briefly the decisions of the Supreme Court of ·U.S.A. F-
I
---l/ in Gregg v. Georgia and companion cases.

Sopn ·after th'e .decision in Furman, the Georgia Legislature
·amended .·its statutory scheme. The· amended statute retains the
death penalty for six categories of crime: murder, kidn_apping for. G
ransom or where victim is harmed, armed robbery, rape,' treason,
and aircraft hijacking. The statutory aggravating circumstances;
the existence of any of which may justify the imposition of the
. . .....
extreme penalty of. death, as provided in that statute, are :·
H
"(l) The '01f~n9~ of murder, rape, armed robberr, Of
. 244 SUPREME COURT REPORTS (198.3) I s.c.R.

A kidnapping was committed by a person with a prior record·
of conviction for a cacpital felony, (or the offence of murder
was committed by a person who bas a substantial history
of serious assaultive criminal convictions).

(2) The offence of murder, rape, armed robbery, or
B kidnapping was committed while the offender was engaged
in the commission- of another capital felony, or aggravated
battery, or the offence of murder was committed while the
offender was engaged in the commission of burglary or
arson in the first degree. '
c (3) The offender by his act of murder, armed rob-
bery, or kidnapping knowingly created a great risk of death
to more than one person in a publlc place by means of a
weapon or device whicli would normally' be hazaradous to
the lives of more ihan one person. '
D
(4) The offender committed the· offence of murder for '
himself or another, for the purpose of receiving money or
any other thing of monetary value.
,,-
(5) The murder of a judicial 'officer, former judicial
officer, district-attorney or solicitor or former district attor-
E ney or solicitor during or because of the . exercise of his
official duty.
•
(6) The offender caused or directed another to com-
mit murder or committed murder as an agent or employee
of another person.
'
(7) The offence of murder, rape, armed robbery, or
kidnapping was outrageiously or want only vile horrible or
'iohun:ian in that it involved torture, depravity of mind, or
G an aggravated battery to the victim.

· (8) The offence of murder was committed against any
peace officer, corrections empioyee or fireman whiie enga-
ged in the performance or his official duties. •
H
(9) The offence of murder was committed by a person
_ in, or who has escaped from, the lawful custody of a peace
· ptficer or place of lawful confinement.
MCHAN SINGH v. PUNJAB (Sarkaria, J.) 245
(IO) The murder was committed for the purpose of A
avoiding, interfering with, or preventing a lawful arrest or
custody in a place of lawful confinement, of himself or
another."

The Supreme Court of.,Georgia in Arnold v. State ('),held
.unconstitutional the portion (within brackets) of the first circum- B
stances encompassing persons who have a "substantial history of
serious assaultive criminal convictions" but did not set clear and
objective standards.

The amended statute, also, provided for a bifurcated trial and
a pre-sentence hearing. It also provides for an automatic appeal of c
death sentence to the Supreme Court of Georgia, which may or may
not affirm the death sentence. The appellate court is also required
to include reference to similar cases that the court considered. .

The defend~nt (accused) in· that case was convicted of two .
counts of armed robbery and 'two counts of murder. The accused.
D
had committed the murders for the purpose of receiving money and
an automobile of one of the victims. Afte~iewing ·ihe tri'al record,
. the Georgia Supreme Court affirmed the convictions and the imposi- ·
tion of death sentences for murder, only, The constitutional validity
of the amended statutory scheme of Georgia was challenged before E.
the Supreme Court of U.S.A .. on the ground that the imposition of
the death penalty for the crime of ·murder under the Georgia statute
violated the prohibition against the infliction of cruel and unusaal

-
I
~~
I
punishment unde~ the Eighth and Fourteenth Amendments.

Likewise in the companion case Proffitt v. Florida ('), the
Florida Legislature adopted new statutes that authorised the imposi-
tion of the death penalty on those convicted of first-degree murders.
F

Under the new Florida statutes, if a defendant (accused) is found
guilty of first-degree murder, a separate presentence hearing is held
before the jury, where arguments may be presented and where any
evidence deemed relevant .to sentencing may be admitted and must G
include matters· relating to eight aggravating and seven mitigating
circumstances sp~cified in the statutes, the jury is directed to weigh·
such circumstances and return an advisory verdict as to the sentence.

(I) 236 Ga 534, 540, 224 SE 2d 386, 391 (1976) H
(2) 428 US 242, 49 r,. Ed 2d 913 (1976),
246 SUPREME COURT REPORTS '(1983) I S.C,R,

A The actual sentence is, however, determined by tbe \ria! judge,
who is also directed to' weigh the statutory aggravating and mitigat-
ing circumstances. If a death sentence i.s imposed, the trial court
must set forth in writing its fai:t findings that· sufficient statutory
aggravating circumstances exist and· are not outweighed by statutory
mitigating circumstances. Just as in the Georgia statute, a death
B sentence is to b'e· automatically reviewed by the Supreme Court of
Florida. ·Under this new statutory scheme, the Florida Court found
Proffitt (defendant) guilty of first-degree murder and sentenced him
to death on the finding that these aggravating circumstances were
established : ·
/
c : "(!) The murder was premeditated and ·occurred in ·the
course of a felony (burglary) ;

(2) the defendant had ihe propensity to commit murder ;

(3) the murder was especially heinous, atrocious, and
,D cruel; and

(4): ·the defendant knowingly, through his intentional act,
had created a great risk of serious bodily harm and
•. · death to many pers\:ms;"

I E The trial judge also found specifically that none of the statutory
mitigating circumstances existed. The S~preme Court of Florida
affirmed the death sentence. Before the Supreme Court of U,S,A.
the constitutio.nal validity of the imposition of death penalty for.the
crime of murder under the Florida statutes was challenged on the .
same ground as in Gregg v. Georgia, The Supreme Cour! of U.S.A.
F in both the aforesaid cases negatived the challenge to the statutes·
and upheld their validity.

It\may be recalled that in Furman, that Court had held that
if Clear, definite and articulate standards' channeling the sentencing
discretion for Imposition ,of the death penalty are not laid down ·in
a statute, it would violate the Eighth and Fourteenth Amendments:
It may be noted that the aggravating circumstance No. (7) is
couched in a very wide and elastic language, The expressions
"outrageously or wantonly vile'', "horrible or inhuman"
employed therein a~e of the widest amplitude and give this aggra-
H vating circu!"stance the character of an omnibus clause. Likewise,
llACHAN ~INGll v. PUNJAB (Sarkaria, J.) 247
1 A
in the Florida .statute, the.scope of the words ·"especially heinous,
atrocious and ~rue!" was equally large and imprecise.

It can b~\ seriously questioned whether these extremely elastic.
- standards really exclµde the uncontrolled' exercise of sentencing dis-
cretion so as to meet the requirements of Furman.
·B
In Gregg v. Georgia, the petitioner attacked the seventh statu-
tory aggravating circumstance which authorises imposition of the
1
death penalty if the murder was "outrageously, or wanfonly vile,
horrible or inhuman" on the ground that-it was so broad that capital
.. -..:.
punishment could be imposed by its application in any. murder case .
Stewart, J., speaki.ng for himself and for Powell and Stevens, JJ .., c
goi over this attack, in three ways :

Firstly, by reading down the concerns expressed. in Furman.
In this connection, Stewart, J. said, all that Furman mandate's is that·
discretion in s~ grave a mattermust b.e ·sµitably directed "so as to
minimize the risk of wholly arbitrary and capricious action." This D
was, if we may say so with respect, an admi.ssion of the fact that a
considerable range of sentencing discretion bas perforce to be left
- with the sentepcing body to be exercised by it according to its own
good, sense and reason, and that no .standards howsoever meticulo·
. usly drafted can .totally exclude scope for arbitrary .and capricious
action. · E

The second reason given to parry this attack was of a general
nature. It was observed :
"As a general proposition these concerns (expressed
in Furman) are best met by a system . that provides for a F
_..,,..
' I bifurcated proceeding at w.hicb the sentencing au(hority is
apprised of the Information releva.nt to the imposition of
sentence and provided 'with standards to guide its use of
,the ~nfo~matio.n." •
(

The third course adopted t~ foil the attack was : G
" ' '- .
"It is, of course, arguable that any murder involves
depravity of mind or an ·aggravated battery. But this
language need not be construed in this way, and. there is •
no reason to assume that the Supreme Court' of Georgia H
will adopt such an open-ended· construction,'"
248 slJl>kEMli coukt REPORTS (1983) 1 s.C.R,

A ·White, J. with whom the Chief Justice and Rehnquist, J.
joined, negatived the change of these standards being vague and
· incomplete, with these observations :
..
"The argument is considerably overstated .. The
'B Georgia Legislature has plainly made an effortto guide
the jury in the exercise of its discretion, while at the· same
time permitting the jury to dispense mercy on the basis
of factors too intangible .to write into a statute, and I
cannot_ accept the naked assertion that the effort is bound
to fail. As the types of murders for which the death
c penalty may be imposed became more narrowly defined
•
and are limited to those which are particularly serious or
for which the death penalty is particularly appropriate as
. they are in Georgia by reasons of the ag11rvating-circum-
stance requirement, it becomes reasonable to . expect .....
that Georgia's current system would escape the ·infirmities
which invalidated its previous system under Furman. Indeed, '
if the Georgia Supreme Court properly performs the task
assi_gned to it under the Georgia statutes, death sentences ...
imposed wantonly or freakishly for any given category of
crime will be set aside."

E
Similarly, in Proffit v. Florida, it was contended that the
enumerated aggravating and mitigating circumstances ill'the Florida
statute are so vague and so broad that virtually "any capital defen-
dant becomes a candidate for the death penalty''. In particular, the
petitioner attacked the eighth and third statutory aggravating cir-
F cumstances which authorise the dealh penalty to be imposed if the
crime is "especially heinous, atr~cious, or cruel" or if ''the defen.
dant knowingly created a great risk of death to .many persons".

Agreeing with the Supreme Court of Florida, the Supreme
Court of U.S.A. recognised that "while it is arguable that all killing
G are atrocious, still we believe that the Legisl_ature intended some-
thing especially heinous, atrocious, of cruel" when it· authorised the
death penalty for first-degree murder. As a consequence, the Court
has indicated that the eighth statutory provision is directed only at
"the conscienceless or pitiless crime which is unnecessarily tortuous
H to the victim".
. llACHAN SINGH v. PUNJAB (Sarkaria, J.) 249
. \ . /
It appears to us that in Gregg v. Georgia and the companion A
cases, the Supreme Court of U.S.A. was obliged· to read down. the
requirements of Furman and to accept these broadly worded, loose-
ended and not-all-inclusive 'standards'- because in the area of sen-
tencing. discretion, if .it was to retain its judicial character, exhaustive
standardisation or perfect regulation was neither feasible nor
desirable.
B

, Moreover, over-standardisation of the sentencing process tends
to defeat its very purpose, and may actually produce opposite
results.

Messinger and Bittner's Criminology Year Book (ibid) c
Albert W. Alcherler's article at page 421 highlights this danger, by
taking, inter alia, the example of the guided-discretion capital
punishment statutes favoured by the Supreme Court in Gregg v.
Georgia and its companion cases, as follows :
>
A defendan'i convicted of capital mµrder might wish . D
to make the following speech to the jury about to consider
whether capital punishment should be imposed :

"I am deeply sorry for my crime which I recognize
was about as bad. as any that can. be imagined. ·I did, in
fact, go to the police station shortly ·after the killing to
E
'surrender and make a full confession. Although i have
done some terrible things in my life you may •wish to
know, before deciding whether I should. live or die, that I
have also done some good. I once risked my life in
combat to save five comrades-an action for which I was
awarded the Silver Star~and for the last IO years I have ' F
personally cared for my invalid mother while supporting 5 '
, younger brothers and sisters.
•
; "The mitigating factors listed in today's capital
punishment statutes are sometimes quite general, but none G
that I have seen. in any statute would permit a jury to con-
sider any of the circurµstances mentioned in this defen-
dant's speech (or., for that matter any other evidence~ of
. pre-crime virtue or past-crime remorse)~'-' Apparently the
Florida srntute"s upheld in Proffitt v. Florida would not; yet H
the Supreme Court plurality, seemingly oblivious to the
~o SUPREME CoU&t_ liBPOkts (! 9S3] ) · s.C.R.

A statutes limitations; declared in a companion case, 'A jury
must be allowed to consider on the basis of all relevant
evidence not only why a death.sentence should be imposed,
but also why it should not be imposed." (Jurek v.
Texas.(') · ·

B Critically examioed,.it is clear that the decisions in Gregg v.
Georgia and its companion cases demonstrate the .truth of what we
have said earlier, that it is neither practicable· nor desirable to
imprison the sentencing discretion of a judge or jury in the. strait-
jacket of exhaustive and rigid standards. N~vertheless, these
decisions do show that it is not impossible to lay down broad
c guidelines as distinguished (rom ironcased standards, which will
minimise the risk of arbitrary imposition of death penalty for
I murder and some other offences under the Penal Code:

" This takes us to the 9uestioo of indicating ,the br.oad criteria.
which should guide the Courts in the matter of sentencing a person
convicted of murder under Section 302, Penal Code. Before we
embark on this task, it will be proper to remind ourselves, again
that "while we have an Obligaticin to ensure that the constitutional
bounds are not over-reached, we may not act as judges as we might
as legislatures."(~)
E In Jagmohan, this Court had held that this sentenCiog discre-
tion is to be exercjsed judicially on well-recognised principles, after
balancing all the aggravating. and mitigating circumstances .of the
crime. By "well-recognised pdnciples" the Court obviously meant
the principles crystallised by judicial decisions illustrating as to what
were regarded as aggravaiing or mitigating circumstances in those
eases. The legislative changes since Jagmohan-as we have discussed
afready-do not have the effect of abrogating or nullifying those
principles. The only effect is that the application of those principles
is now to be guided by the paramount beacons of legislative policy
discernible from Sections 354· (3) and 235 (2), namely : (I) The
G 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 circum-
stances of the offender, also. ·

.H · (0 42s us 262, 211 0976J. '
(2) Per Stewart, J. in Gregg. v. Georgia.
\

BACHAN SINGH v. PUNJAB (Sarkar/a, J.) 251
We will first ·notice some of the aggravating circumstan.ces A
which, in the, absence of any mitigating circumstances,.havc been
regarded as an indication for imposition· of tQ.e extreme penalty ..

Pre-planned, calculated, cold-blooded murder has always been
. regarded as one of an aggra_vated kind. In Jagmohan, it was reiterat-
ed l>y·this Court that if a murder is "diabolically co1!9"ived and B
cruelly executed", ·it would justify the imposition of the death
penalty on the murderer: The ·same principle was substantially
reiterated by V.R. Krishna Iyer, J., speaking for the Bench, in Ediga
Anamma, in these terms :

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

· 11 may be noted that this indicator for imposing the death-
sentence was crystallised in that case after paying due regard to the D
shift in legislative policy embodied in' Section 354(3) of the Code of
Criminal Procedure, 1973, although on the date of \hat decision
(February II, 1974), this provision-had not 'come into force. In
Paras Ram's case,.ajso, to 'j'hich a reference has been made earlier,
it was emphatically s!ated that a person who .in a fit of anti-social .
piety-commits "blood-curdling butchery" of his child, .fully deserves E
to be punisbed with death. In Rajendra Prasad, however'· the
majority(of 2:1) has completely reversed the view that had been .
taken in Ediga Anamma, regardi,ng the application of Section 354(3)
on this point. According to it, after the enactment of Section 354(3),-
'murder most foul'. is ncit the test. The shocking nature of the
crime .or the number of murd_ers committed is also not'the criterion. F
It was said 'that the focus has now completely shifted from the crime
to the criminaL "Special teasons" necessary for. imposing death
penalty "must relate not to the crime as such but to' the cr_iminal".

With great respect, we ..find ourselves unable to agree to this
G
enunciation. ·As we read Sections 354(3) .and 235(1) and ·other
related provisions 9f the Co.de of 1973, it is quite clear to ~s that
for making the choice of punishment or for ai;certaining the exis- .
tence or absence of "special reasons" in that context, the Court must.
pay due regard both to the crime and the .criminal. What is the H
relative weigh.I to be given to the aggravating and mitigating factors,
252 SUPRBMI! COURT REPORTS [1983] I s.c.I\.

A depends on the facts and circumstances of the particular case. More
often than not, these two aspects are so intertwined that it 'is diffi-
cult to give a separate treatment to each of them. This is so because
'style is the man'. In many cases, 'the extremely cruel or beastly
manner of the commission of murder is itself a demonstrated index
of the depraved character of the perpetrator. That is why, it is not
B desirable to consider the circumstances of the crime and the circu'ms-
tances of the criminal in two separate water-tight compartments.
In a sense, to· kill is to be cruel and, therefore, all murders are cruel.
But such cruelty may vary in it.s degree of culpability. And it is
only when the culpability assumes. the proportion of extreme
depravity that "special reasons" cari. legitimately be said to exist.
c
Drawing upon tho penal statutes of the'states in U.S.A. framed
after Furman v. Georgia, in general, and clauses (2){a), (b), (c) and
(d) of the Indian PenarCode (Amendment) Bill passed in 1978 by the
Rajya Sablia, in particular, Dr. Chitale has suggested these "aggra·
vating circumstances". •
D

"Aggravating circumstances :, A Court :nay, however,
in the following cases impose the penalty of deatb in its
discretion :·
E (a) if the murder has been committed after previous
planning and involves extreme brutality; or r

(b) if the murder involves exceptional depravity; or

(c) :_if the murder js of a member of any of the armed
F forces of the Union or_ of a member of any police
force or of any public servant and was commit-
t~d.

(i) while such member or public servant was on
duty; or
G
(ii) in consequence of anything done or attemp-
ted to be done by such member or public
servant in the lawful discharge of his duty as ·
·such member <;>r public servant whether at the
H time .of murder he was such member or public
BACHAN SINGH v. PUNJAB (Sarkaria, J;) 253

servant, as the case may be, or had ceased to A
be such member or public servant;.or
.....
(d) if the murder is of a person who had acted in the
lawful discharge of his duty under Section 43 of
the Code of Criminal Procedure, 1973, or who
bad rendered assistance to a Magistrate or a police B
officer demanding bis aid or requiring his assis-
tance under Section 37 and Section 129 of the said
Code."

Stated broadly, there can be no objection to the acceptance ~f
these indicators but as we have indicated al.ready, we would prefer c
not to fetter Judicial discretion by attempting to make an exhaustive
enumeration one way or the otlier. ·
"
In ·Rajendra Prasad, the majority said : "It is constitutionally
permissible to swing a criminal out of corporeal existence only if the
security of State and society, public.order and the interests. of the
general public compel that course as provided in Article 19(2) to
(6).'; Our objection is only. to the word "only". While it may be
conceded that a murder which directly. threatens, or has an extreme
pote~tiality to harm or endanger the security Of State and society,
public order and the foterests of the general public, may provide
"special reasons" to justify the imposition of the extreme penalty E
on the person convicted of such a heinous murder, it is not possible
to agree that-imposition of death penalty on murderers who do not
fall wit~in .this narrow category is constitutionally impermissible.
We have discussed and h~ld above· that the impugned provisions in
Section 302, Penal Code, being reasonable and in the general public
interest, do not offend Article 19, or· its 'ethos'; nor do ·they in any F
manner violate Articles 21 and 14. All the reasons given by us for
upholding the validity of Section 302, Penal Code, fully apply to the
case of Section 354(3), Code of Criminal Procedure, also. The
same criticism applies to the view taken in Bish nu Deo Shaw v. State
of West Bengal, (1) which ·follows the dictum in Rajendra Pras~d
(ibh!). G

In several countries which have retained death penalty, pre-
planned murder for monet.ary gain, or by an assassin hired for

' (I) [1979) S.C.c. 714.
ff
254 SUPREME COURT REPORTS [ 1983] I s.c,R.
A monetary reward is; 11lso, considered a cap.ital offence of the first-
degree which, in the absence of any ameliorating circumstances; is
punishable with death .• Such rigid categofisation would dangerously
overlap the domain of legisiative policy •. Jt may necessitate, as it
were, a redefinition of 'murder' or its further classification.· Then,·
in some decisions, murder by fire-arm, or an automatic projectile or
B
bomb, or like weapon, the use of which creates a high simultaneous
risk of death or injury to more than one person,. has also been
treated as an aggravated type of offence. No exhaustive enumera-
tion of aggravating circumstances is possible. But this much can be
said that in order to qualify for inclusion in the category of "aggra-
c vating circumstances" .·which may form the basis of 'special reasons"
in Section 354(3), circumstances found on the facts of a particular
case, must evidence aggravation of an abnormal or special degree.

Dr. Chitaley has suggested these mitigating factors :

D "Mitigating circumstances: In the exercise of its discre· •
tion in the above cases, the Court shall take into account
the following circumstances :

·{1) That the offence was committe.d under the influ-
ence of extreme mental or emotional disturbance.
E
(2) The age of the accused: If the accused is you~g
or old, he shall-not be sentenced to oeath.
(3,) .The ptobabilit~ .that the accused would not com-
mit criminal acts of yiolence as would con_stitute a
F . continuing threat to society.
(4) The prooability that the accused can be reformed
~--
and rehabilitated. The State shall by evidence
prove that the accused does not satisfy the condi-
ti'on s 3 and 4 above.
G (5) That in the facts and circumstances of the case
the accus~d believed that he was morally justified
in committing the offence.

(6) That the accused acted under tlie duress or domi-
pation of another person,
' .
•
,
...
BACHAN SINGH v. ·PUNJAB (Sarkaria; J.) 255

(7) That the condition· of the accused showed that he .A
was mentally defective and that the saig defect
impaired his capacity to appreciate the criminality
of his conduct."

We will do no more than to say that these are undo.ubtedly
B
relevant circumstances and must be given. great weight in the deter•
mination of sentence. Some of these factors like extreme youth can
instead be of compelling importance. In several States-of India,
. there are in force special enactments, according to wh.ich a .'child',
that is, 'a person ;_,ho·at the date ·or murder was less than 16 years.
of age', cannot he tried, convicted and sentenced to death or impri·
sonment for life for murder, nor dealt with according to the same
c
procedure as an adult. The special Acts provide for a reformatory
procedure for such juvenile offenders or childreni'
. I

According to some Indian decisions, the. post-murder remorse,·
penitance or repen.tence by the murderer iS not a factor. which may ·n
induce the ·court ·to pass the lesser penalty (e.g. Mominaddi Sardar).
But tliose decisio~s cari no longer be held to be good law in views
of the current penological trends and the sentencing policy outlined
· i~ Section 235(2)° and 354(3). We have already extracted the view
of A.W. Alchuler in Cr. Y.E. by Messinger and Bittner (ibid),'which
are in point. E

There are numerous other circumstances justifying the passin°g
of the lighter sentence; as there are countervailing circumstances of
aggravatitm. "We cannot obviously feed into a judici~l computer
all such situations since they are astrological imponderables in an
imperfect and undulating society." ·Nonetheless, it cannofbe over· F
emphasised that the scope and concept of mitigating factors in the
area of death penalty must receive a liberal and expansive construe- ~
_ · -lion by. the courts in accord _with the sentencing policy writ large in·.
Section 354(3). Judges should never be blood-thirsty. Hedging of
murderers has ~ever been too good for them. Facts and figures,
albeit incomplete, furnished by_the Union of India, show that in the
G
pagt, Courts have inflicted the extreme penalty with extreme infre-
quency-'a fact which attests to the caution and compassion which
> t,hey have alway·s brought to ..bear on the exercise of their sentencing
discretion. in -so grave a matter. It is, therefOre, imperative to voice
lh~ concern_ that courts, aided by-the bro;id illqstrative !luideline_$
H

'I . '
256 SUPREME COURT REPORTS

A indicated by us, will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the highroad·
of legisfative 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
.B instrumentality. That ought not to be done save in the rarest of
rare cases when the alternative option is unquestionably foreclosed.

For all the foregoing reasons, we reject the chillenge to the
constitutionality of the impugned provisions contained in Sections
c 302, Penal Code, and 354(3) of the Code of Criminal Procedure,
1973.
-f
The 'writ petitions and the connected petitions· can now be
heard and disposed of, on their individual merits, in the light of the
broad guidelines and principles enunciated in this judgment. ·
D •

BHAGWATI, J. These writ pefitions'challenge·the constitution.al
-validity of Section 302 of the Indian Penal Code read with Section
354, sub-section (3) of the Code of Criminal Procedure in so far as
it provides death sentence as an alternative punishment for the
E
, offence of murder. There are several grounds on which the constitu- .
tionlll validity of the death penalty provided in Section 302 of the
Indian Penal Code read with sec1iQn 354 sub-section (3) of the Code
of Criminal Procedure is assailed before us, but ft is not necessary
to set them out at this stage, for I propose to deal with them when
I examil)e the arguments advanced on behalf of the partie,s. Suffice
F
it to state for the present that I find, considerable'force in some of
these grounds and in my view, the constitutional validity of the
death penalty provided as an alternative punishment in section 302
of the Indian Penal Code read with section 354 sub·seccion (3) of
G the Code of Criminal Procedure cannot be sustained. f am cons-
cious that my learned brethren on the· Bench who constitute the
majority have taken a different view and upheld the constitutional
validity of the death penalty but, with the <greatest respect to them
and in all humility, I cannot persuade myself to concur with. the
view taken by them. Mine is. unfortunately a solitary dissent and
0

H it is therefore, with a certalh amount of hesitation that I speak but
my initial diffidence is overcome by my deep and abiding faith iffthe
dignity .of man and worth of the bµman person and passiom1te
j

BACHAN SINGH v. PUNJAB (Bhagwati, J.) 257

:conviction ·a.bout the true spiritual. nature and dirnensicm of man. A
I agree with Bernard Shaw"that "Criminals do not cjie by the hands
of the law. They die by the hands of other men. Assassination
on the scaffold is the worst form of assassination because there it is
invested with the approval of the society .... Murder and capital
punishll)ent are not opposites that cancel one another but similars
th~t breed their kind." It was the Father of the nadoil who said B
years ago, reaffirming wha\ Prince Satyavan said on capital punish-
ment in Shanti Parva of Mahabharata that "Destruction of indivi-
duals can ne~er be a virtuous' act" and this sentiment has been
echoed by many eminent men such as Leonardo Da Vinci, John
' 'Bright, Victor Hugo aqd Berdyaev. To quote again.from Bernard
Shaw from Aci IV of his play "Caesar and Cleopatra : ·
c
' ' . . . ~

"And so to the end of history, murder shall breed
murder, always in the name ·of right and honour and peace,
until the Gods are tired of blood and create a race that c.an
understand," D

I share this sentiment because I regard men as an embodiment of
divinity and I.am therefore morally against death penalty. But my
dissent is based noi upon any ground of morality or ethics but is
founded on constitutional issues,'for as I shall presently show, death
penalty does not serve anY social purpose or advanc~ any constitu- · ·~
. tional value and is totally arbiJrary and unreasonable so as to be
violative of Articles 14, 19 and 21 of the Constitution ..

Before. I proceed·· to consider the vari~us constitutional issues
arising out of the challenge to the validity of the death penalty, r
must deal with a preliminary ·objection raised on behalf of the res-. F
pendents against our competenge to entertain this· challenge. ·The·
learned counsel appearing on behalf of the respondents urged tha.t
the <Iuestion of constitutional validity of the death penalty stoocl c~n
cluded again.st the .petitioners
•
by the' decision of a constitution bench
I
of five Judges of this Court in Jagmohan v. Stale ofU.P.(') and
it could not thtl'efore•be allowed to be reagitated before this Bench G
con~isting of the same number of Judm,s. This Bench, co~tended the
resporydents, was· bound by the decision in Jagmoh.an's case(supra) and
the same issue, once decided :in Jagmohan's .case (supra), could not
be raise.d again and reconsidered- by this Bench. N<?W it is true that
n
(I) AIR 1973 SC 947,
,,

258 SUPREME COURT REPORTS (1983) I S.C.R

A · the question of constitutional validity of death penalty was raised
in Jagmohan's case (supra) and this Court by a unanimous judgment
held it to be constitutionally valid and, therefore, ordinarily, on the
principle of stare decisis, we would hold ourselves bound by the
view t~ken in that case and resist any attempt at reconsideration of
the same issue. But there are several weighty considerations which
B compel us to depart f;om this' precedential rule in the present case.
It' may be pointed out that the rule of adherence to precedence' is
not a. rigid . and inflexible rule of law but it is a rule of practice
. adopted by the courts for the purpose of ensuring uniformity and
stability in the law. Otherwise, every Judge will decide an issue
according to his own view and lay down a rule according to his own
c /
perception and there will be no certainty and predictability in the
,Jaw, leading to chaos and confusion and in the process, destroying \''
the rule of law. The labour of the judges w0uld .also, as pointed '!
out by Cardozo J. in his lectures of "Na(ure of Judicial Process"
increase "almost to the breaking point if every past decision could
be reopened in every case and one could not lay one's own course
D of bricks on · the secure foundation of the courses laid by others
who had gone before him." But this rule of adherence to prece·
dents, though a necessary tool in what Maitland called "tlie legal
smithy", is only a useful servant and- cannot be ailowed to turn 'into
a tyrannous master. We would do well to recall what Brandies J.
said .in his dissenting judgment in State of Washington v. Dawson and
E company,(') namely; "Stare decisis is ordinarily a wise rule of action.
But.it is not a universal and i,nexorable command." If. the Rule of
stare decisis were followed blindly and mechanically, it would dwarf
and stultify the growth of the law and affect its capacity to .adjust
itself to the changing needs of the society. That is why Cardozo
pointed out in his New York State Bar Addres.s :
F
".That was very well for a time, but now at last the
precedents have turned upon us and are engulfing and_
annihilating us-engulfing and annihilating' the very devo-
tees that worshipped at their shrine. So the air is full of .
new cults that disavow the ancient faiths. Some of them
G tell us that instead of seeking certainty in the word, the.
outward sign, we are to seek for something deeper, a cer-
tainty of ends and aims. Some of them tell us that certainty
is merely relative and temporary, a wdting on the sands to
H
0) 264 US 646; 66 Lawyers Edo. 219
J

BACHAN SINGH v. PUNJAB (l1hagwati, f.i 259

be effected by the advancing tides. Some of them even go · A
so far as to adjure us to give over the vain quest, to purge
ourselves of these yearnings for an unattainable ideal, and
to be content with an empiricism that is untroubled by
strivings for the. absolute. With all their, diversities of form
and doctrine, they are at· one at least in their emphasis B
upon those aspects of truth/ that are fundamental atid ulti-
mate. They e"emplify the method approach, the attitude
and outlook, . the concern about the substance of things,
which in all its phases and disguises is the essence of philo-
·.,. sophy,"
c
We must therefore rid stare decisis of something of its petrifying·
·rigidity and warn ourselves with Cardozo that "in many instances
the·principles and rules and concepts .of our own creation are merely
apercus and glimpses of reality" and remind. oursevels "of the need
of reformulating. \hem. or at times abandoning them altogether when
they stand condemned as misch.ievous in the. social consciousness of D
the hour, ... the social consciousness which it is our business as Judges
· to interpret as best as we .can." The question at issue in the
present writ petitions is one of momentous ·significance namely,
whether the state can take the life of an individual under the cover
of judicial process and whether .such an act of killing. by the State
is in accord with the constitutional norms· and values and if, E
on an issue like this, a Judge feels strongly that it is not com-
petent to the State to extinguish the flame of life in an'individual by
.employing tlie instrumentality of the judicial process,- it is his
bounden duty, in.all conscience, to express his dissent, even if such
killing by the State· is legitimized by a previous decision of. the
court. There are certain issues which transcend iechnical considera~
F
lions of stare .decisis and if such an jssue is brought before the court,
it would be nothing short of abdication of its constitutional duty for
the court to consider such issue by taking refuge under the doctriDe
of stare decisis. The court may refuse to entertain such an issue
like the constitutional validity of death penalty because it .is satisfied
G
that the previous decision is correct but it cannot decline to consider . I
ii on the ground that it is barred by the rule of adherence to pre-
cedents. Moreover; in the present case, there are two other ·super-
> vening circumstances which justify, nay 'compel, reconsideration of
the decision in Jagfnohan's case (supra), The first. is the introduc- H
tion of the new Code· pf Criminal Procedure in 1973 w!Jich by sec-
. '
260 SUPREME COURT REPORTS [198~] I S.C.R.

A tion 354 sub-section (3J has made life sentence the rule in case of
offences punishable with death or in the alternative imprison-
ment for life and provided _for imposition of sentence of
:\.death ,only in exceptional cases'Joi special reasons. I shall presently
refer to this section enacted in the new Code of Criminal Procedure
:md show how, in view of that provision, . the i~position of death
,B ' penalty has become still more indefensible' from th'e constitutional
point of view. But the more importa~t circumstance which .has
' supervened since the decision in Jagmohan' s·case (supra) is· the new
· dimension of Articles 14 and 21 unfolded by·this Court in Maneka
Gandhi v. Union of India.(') This new dimension of Articles 14
21 renders the death penalty provided in section 3b2 of the Indian
and ..
G Penal Code.read with sec. 354 (3) of the Code of Criminal Procedure
vulnerable to attack on a ground not available at the time when
'Jagmohan's case (supra) was dicided. Furthermore, it. may also be
noted, and this too is a circu'mstance not ·entirely without signifi·
cancc, that since Jagmohan' s case (supra) was decided, India has
ratified two international instruments'· on human rights and parti-
D cularly the International Convenant on Civil and Political Rights. We
camiot therefore consider ourselves bound by the 'vi~w taken· .in
Jagmohan' s, case (supra) and I must proceed to Consider. the issue as
regards the co·nstitutional validity of death penalty afresh, without
being in any manner inhibited by the decision in Jagmohan' s case
(supra).

It must be realised that the question of constitutional validity
of death penalty is not just a simple question of application of cons-.
. 'titutional standards bY' adopting a mechanistic approach. It is a
difficult problem of constitutional interpretation to which. it is not
F not possible to give an objectively correct legal anwer. It )s not
a mere legalistic problem which can be answered definitively 1 by the
application of logical reasoning but 'it is a problem which raises •
profound social and mo\-al issues and the answer must therefore
nece.ssarily depend on the judicial philosophy of the Judge. This
would be so in case of any problem of conititutional interpretation
G
but much more so would it be iu a.case like the/present where the
constitutional conundrum is enmeshed in complex social and moral
' issues defying a formalistic judicial attitude. That is the reason
why in ·soi:ne countries like the United States and Canada where
H
(I J [1978] 2 SCR 663.
BACHAN siNGH v. PUN1AB (iJJwgwati, J.j
I ,

there is power of judicial review, there. bas been judicial disagree- A
ment on the constitutionality of·deatb penal.ty. On an issue like
this, as pointed ·out· by David Pannick in his book on "Judicial
Review of the Death Penalty" judicial conclusions emanate fro~ the
judicial philosophy of those who sit in judgment 'and npt from the
language oft.he Constitution.~ But even so, in their effort to' resolve
such an issue of great constitutional significance, the Judges must
B
take care to see that they-are guided by "objective factors to_ t'he
maximum possible extent." The culture and ethos of the nation as
gathered from its history, its tradition and its literature would clearly
·be relevant factors in adjudging the constitutionality of death penalty
and"so would the ideals and. values embodied in the Constitution
wbiCh lays down the basic frame-work of the s9cial and· political
c
structure of the country, and which sets out the objectives and
goals to be pursued by 'the people in a common ehdeavour to secure
happiness and w.elfare ·of every 1 member of the society. So also
standards or norms set b~ International organisations and bodies
· have relevance in determining the constitutional validity of death D
penalty and equally important in construing and applying the
equivo·cal formulae of the Constitution would be the "wealth of non·
legal learning and ext>erience that encircles and illuminates" the·
topic of death penalty. "Judicial dispensers", said Krishna Iyer, 1.
in Dalbir Singh an4 Others v .. State of Punjab(') "do not ,behave' like
cavemen but breathe the fresh air of finer culture'.'·. There is no reason E
why, in ~djudicating upon the constitutiohal validityof death penalty•
Ju·dges should not obtain assistance from the writings of men like
Dickens, Tolstoy, Dostoyevsky, Koestler and Camus or frqm tlie
investigations· of soda! scientists or moral philosophers in deciding
the circums.tances in whfoh and the reasons why 'the death penalty
could be seen as arbitrary or a denial of equal protection. It is F
. necessary to bear in mind the wise and felicitous words of Judge
Learned Hand' in' his "Spirit of Liberty" that 'while passing
, on a question of constitutional interpretation,. it is as important to
a'Judge:

" .... to have atleast a bowing acquaintance 'with Acton G
' and Mait)and. With Thucydides, Gibbon and Carlyle,
with Homer, Dante Shakespeare and Milton, with Machia-
velli,· Montaigne and Rabefais, with Plato, Bacon, Hu~e
• H
(1)[1~79] 3 SCR 1059.

'
262 SUPREME COURT REPORTS [1983) 1 S.c.tt
'.
A and Kant, as with the books which have been specifically
written on the subject. For in such matters everything turns
upon the spirit in which he approaches t\le question before
him. The words he must construe are empty vessels into
which he _can pour nearly anything be will. Men do not
gather figs of thistles, nor supply institutions from judges
B whose outlook is limited by parish or class. They must be
aware that there are before them more. than verbal
problems; more than final-solutions cast in generalisatio)ls
of universal applicability." .

Constitutional)aw raises, in a legal context, problems of economic,
c social, moral and political theory and practice to which non-lawyers
have much to contribute. Non-lawyers have not reached unanimity
on the answers to the problems posed; nor will they ever do so,
But when judges are confronted by issues to which there is no legal
answer, there is no reason (other than-a desire to maintain a fiction
that the law provides the answer). for judicial discretion ·to be exer-
D cised in a vacuum, immune from non-legal learning and extra-legal '
dispute. "Quotations, from noble minds are not for· decoration
(in hard constitutional cases) but for adaptation within the frame-
work of the law." Vide: David Pannick on 'Judicial Review of the
Death' Penalty.' The Judges must also consider while deciding an
issue of constitutional adjudication as to what would be the moral,
E social and economic consequences of a decision either way. The
.consequences.of course do not alter the meaning of a constitutiona •
. or statutory provision but they certainly help to fix its meaning.
• With these prefatory observations I shall now proceed to consider
the question of constitutional validity of death penalty.
F
I shall presently refer to the constitutional provisions which
bear on the question of constitutionality of death penalty, but before
I do so, it would be m©re logical if I first examine what is the inter-
nat~onal trend of opinion in regard to death penaity. There are quite
a large number of countries which have abolished death penalty
de Jure or in any event, de facto The Addendum to the Report of
G
the Amnesty International on "The Death Penalty" points out that
as on 30th May 1979, the following
\
countries have abolished. death '
'

penalty for all offences : Australia, Brazil, Colombia, Costa Rica,
Denmark, Dominican Republic, Ecuador, Fiji, Finland, Federal
H Republic of Germany, Honduras, · Iceland, Luxembourg,
Norway,.Portugal, Sweden, Uruguay and· Venezuela, and -according
•
llACltAN SINGH v. PUNJAB (llhag\\lati, J.) 263

to this Report, Canada, Italy, Malta, Netherlands, Panama, Peru, A
'7 Spain and Switzerland have ·abolished death penalty in time of
peace, bui retained it for specific offences committed in time of war.
The Report also· states that Algeria, Belgium, Greece, Guyana,
Ivory Coast, Seychelles and Upper V6lta hve retained the death
penalty on {heir statute book .but they did not conduct any
executions for the period from 1973 to 30th May 1979. Even in B
the United States of America there .are several States which have
abolished death penalty ~lld so also in the United Kingdom, death
penalty stands abolished from the year 1965 save and except for
offenc,es of treason a11d certain forms of piracy and offences com-
mitted by members of the armed forces during war time. It may be
pointed out that an attempt was made in the United Kingdom in c
December 1975 to reintroduce death penalty for terrorist offences
involving murder but it was defeated in the· House of Commons
and once again a similar motion moved by a conservative member
of Parliament that "the sentence of capital punishment should again
' be available to the courts" was defeated in ·the House of Commons
in a free vote on 19th July 1979._ So also. death penalty has been
abolished either formally or in practice in several other countries
such as Argentina, Bolivia, most of the federal States of Mexico and
.- V·
Nicaragua, Israel, Turkey and Australia do not use the death
: penalty in practice.. It will .thus be seen that there is a definite trend
in most of the countries of Europe. and America towards abolition
of death penalty.
.
E.

It is significapt to note that the United Nations· bas also taken
great interest in the abolition of capital punishment. ·In the Charter
of the United Nations signed in 1945, the founding States emphasized
the value of individuals' s life, stating th~ir will; to "achieve inter- F
.national co-operation ... in promoting ana encouraging respect for
human rights and for fundamental freedoms for all without distinc-
tion as to race, sex, language or religion." Though ihe San
Francisco Conference did not address -itself to the issue of. death
penalty specifically, the provisions.of the charter paved the way for
further action by Uniled Nations bodies in the field of huma~ rights, G
by establishing a Commission. on Human Rights and, in. effect,
charged that ,body with formulating.an International Bill of Human
Rights .. Meanwhile the Universal Declaration of Human Rights,
was,adopted,by the Gene_ral Assembly in its Resolution 217 A (Ill)
of IO December 1948. Articles 3 and 5 of \ihe Declaration H
provided :
,

264 stJPREM~ COURt RliPORTs (198311 s.c.il.

A 3. "Everyone has the right to life, liberty aad security
of per.son." ""
5. "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.'

B 'rlie United Nati~ns; position on the question of death penalty was
expected to be ·stated more specifically in the. International Co·
venant on Civil and Political Rights, the drafting of which had been
under way since .the first session of the Commission on Human
Rights in 1947..But during the 11 year. period of drafting of the
c relevant provision of the Covena11t, two main approaches to the
' issue of aapitai punishment became evident : one sti'essed· the need
for barring the death penalty and the second placed emphasis .an res·
strlcting its application to certain cases. The proponents of the first
position suggested eithe; the total abolition or' the death penalty.
or its a.bolition in· time of peace or for political offences. This
[) approach was however regarded as unfeasible, since many countries, .
including abolitionist ones, felt that the provision for an outright
ban on the death penalty would prevent some States from ratifying
th~ Cove'nant, but at the same.time, it was insisted by manY coun-
tries that the Covenant should not create the impression of sup-
porting or perpetuating death penalty and hence a provision to/
this effect should be included. The result was that the second
E approach Btressing ·everyone's right to life l/-nd emphasizing the.need
for restricting the application of capital punishment with ·a view to
eventual abolition of the death penalty, won greater 'support and
Article 6 of the Covenant.as finally adopted by the General Assembly
in its resolution 20\JO (~XI) of 16 December 1966 provided as
follows :
F
l. Every human being has the inherent right to life.
This right shall be protected by law. No one shall
be arbitrarily 'deprived of his life.

· 2. In countries which have not abolished the death
G 'penalty, sentence of death may be imposed only
for the most serious crimes in accordance with the law
in force at the time of the commission of 'the crime
and not contrary to the provisions of the present ·
Covenant and to the Convention on -the Prevention
H and Punishment •of. the Crime of Genocide. This
iJ:CilAN SiNOI! v." PUNJAB. (Bhagwati, 1.) ' 265

penalty can only be carried out pursuant to a final
A
judgment rendered by a competent court.

3. When deprivatfon of life constitutes the crime of ge!!?-
cide, it is understood, that nothing in this article
shall auth6rise a~y State Party to the present Covenant.
to derogate in any way from any obligation assum_ed . B
under th.e provisions of the Convention on the Preven-
tion and Punishment of the Crime of Genocide.. ·"

Anyone sentenced to death shall h.ave the right .to seek,'
, pardon' or commutation of the sentence. Amnesty
pardon or commutation of the sentence of death may · c
be 'granted in all cases. /

5. Sentence of death shall not be imposed for crimes com- ·
milted by pers!'ns below eight~en years of age and
shall not 'be carried out on pregnant women ..
D
6. Nothing in this article shall be inv~ked to. delay. or
prevent the abolition of capital punishment by any
State Party to the present Covennt."

Article 7 of the Covenant corresponding ,to Article 5 of the Uni-
versal Declaration of Human Rights reaffirmed that no one shall be .
subjected to tcrture or to cruel, inhuman or ·degrading treattiient
or· punishment.

So deep and profound"was the United Nation's concern with
the issue ·of death penalty that the General Assembly in its resolution
·1396 (XIV) of 20 November, 1959invited the Economic· and Sodial
F
Council to initiate study of the question of ,capital punishment, of
the laws and practices relating thereto, and of the effects of capital
punishment and the abolition thereof on ·the . rate of crimina-
lity. · Pursuant to this resolution, the Economic and Soclai
Council activised itself on this issue and at its instance· G
a Substantive , report report Was prepared by the I;IOted
French jurist . Marc Ancel. Jh,e report . entitled "Capital
.> . Punishment" was the first maj~r survey of the. problem from an
international stand point on the deterrent aspect of the death penalty ·
and in its third chapter, it contained a -cautious statement "that' the H
deterrent effect of the death penalty
. is, to. .say the least, not demons,
\
I
266 SUPllEME COURT lUJPORTS (198j) I S.c.lt.
. \
A' tratetj". This view had been expressed not only by abolitionists
countries in theit replies to the questionaires but also by some r·
retentionist countries. The Ancel report alongwith the Report of
the ad hoc Advisory Committee of Experts on the Prevention of
Crime and the Treatment of Offenders which examined it in Jan~arv
1963 was presented to the Economic and Social Council at its 35th
8 Session whcg its Resolution 934 (XXXV) of 9th April 1963 was
adopted. By this Resolution the Economic and Social Council
urged member governments inter a/la to keep under review the effi-
cacy of capital punishment as a deterrent to crime in their countries
~·
and to conduct research into the subject and to remove _this punish-
ment from the criminal law .concerning any crime to which it is, in
c fact, not applied or to which. there is no intention to apply it. This . _y"
Resolution clearly shows that there was no evidence supporting the /""
supposed deterrent effect of the death penalty and that is why the
Economic and Social Council suggested further research on the ·
topic. Moreover, the urging of the de facto abolitionist countries ,
by'this Resolution to translate the position into de jure terms cons-
D
tituted an iniplicit acceptance of the principle of abolition. The
same year, by Resolution 1918 (XVIII) of 5th December 1963, the
General Assembly endorsed this action of the Economic and Social
Council and tequested the Economic and Social Council to invit~
the Coaimission on Human Rights to study and make recommenda-
E. tions on the Ancel Report and the comments of the ad hoc Advisory
Com~ittee of Experts. The General. Assembly also requested the ·
Secretary General to present a report on new developments through
the Economic· and Social Council. Norval Morris, ·an American
professor of criminal law and criminology, accordingly prepared a
Report entitled· "Capital Punishment; Developments 196 t--1965"
F and amongst other things, this Report pointed· out that there was a
steady movement towards legislative abolition of capital punishment
and observed with regard to the deterrent effect of death penalty,
tJ;iat:

"With respect to the influence of the abolition or
G capital punishment upon the · incidence of murder, all of
the available data suggest that where the murder rate is
increasing, abolition does not appear to hasten the increase
where the rate is decreasing abolition does not. appear to
interrupt the decrease; where the rate is stable, the presence '
H
or absence of capital punishment does not appear to affect
it." .
BACHAN SINGH v PUNJAB (Bhagwati, J.). 267

The Commission on Human Rights considered this Report and A
adopted a draft General Assembly Resolution which was submitted
by the Economic and Socia( Council to the General Assembly and
on 26th November 1968, the Gener.al Assembly adopted this draft
with certain modifications as its Resolution 2393 (XXIII) inviting
member governments to take .. various measures and requesting the
Secretary General to invite member goverments ''to inform him of B
their preseni attitude to possible further restricting (he use of the
death penalty or to its total abolition" and to submit a. report to
the Economic and Social Council. The Secretary .General accord-
ingly .sub.mitttld his report to the Economic and Social Council at
its 50th session in 1971. This Report contained a finding· that "most
countries are gradually restricting the number of offences for which
c
the death penalty is to be applied and a few have totally abolished
capital offences even in war times", The discussion in the Economic
and Social Council led to the adoption 'of Resolution 1574 (L) of
20th May 1971 ~hich was reaffirmed by !}eneral Assembly Re&olu-
tion 2857 (XXVI) of 20th December 1971. This latter resolution D
clearly affirmed that :

"In order, to guarantee.fl/UY the right to life, provided
for in article 3 . of the Universal Declaration· of Human ,
Rights, the main objective to be pursued i's that of progres- E
sivel1y restricting the nu.mber of offences for which capital
punishment may be imposed, with~ view to the desirability
of abolishing this punishment in all countries". r .

(Emphasis supplied)
F
. In 1973 th.e Secretary General submitted to the Economic and
Social Council at its 54th session his third report on capital punish-
ment as requested by the Council and at this session, the Council
·adopted Resolntid'n 1745 (LIV) in w·hich,· inter alia, it invited the
Secretary General to submit'to it periodic updated reports on capital G
•pu~ishment at five-year intervals starting from 1975. A fourth
report on capital punishment was accordingly sub'mitted in I ~75 and
a fifth one in .1980. Meanwhi'ie the General Assembly at its 32nd.
Session adopted Resolution. 32/61 on 8th December' 1977 and this
Resolution re-affirmed "the desirability of abolishing this" that is H
capital "punishment" in all countries. ·

\
I , .
268 SUPREME COURT REPORTS · ' [1983] I s.c.~.
A It will thus be seen that the United Nations has gradually
shifted from the position of a neutral observer concerned ab.out but
' not committed 90 ihe question- ~f death penalty, to a position
favouring the eventual abolition of .the death penalty. The objective
of the United Nations has been and that is the standard set by the
world body ,that capital punishment should ultimately be abolished
B
in all countries. This normative standard set by th'e world body
must ,be taken into account in determining whether the death penalty
can be regarde4 as arbitrary, excessive and unreasonable so as to be
constitutionally' invalid.

'
I will now proceed to consider the relevant provisions of the
Cons.titution bearing on the question of constitutional validity of
death penalty. It may be pointed out that our Constitution is a
unique document. It is not a mere pedantic legal text but it embo-
. dies certain human values cherished principles and spiritual norms
and 'recognis.es and upholds the ~igni,ty of m~n. It accepts the'
D individual as the focal· ·point of all. deyelopment and regards his
material, 'moral and spiritual development as the chief concern of its
various provisions. It does not treat the individual as a cog in the
mighty all-powerful machine of, the State but places him' at the
centre of the constitutional scheme and focuses OD the fullest
E development' of his personality. The Preamble makes it clear that
the Constitution is intended to secure to every citizen social, econo-
mic and political justice and equ~lity of status and opportunity and r.
to promote fraternity assuring the dignity of the individual. The
Fundamental Rights lay down limitations on the power of the
l~gislature and the executive .with a view to protecting• the citizen ,
F ,and confer certain basic human rights· which are enforceable against
the State in a court .of law. The Directive Principles of State Policy '
also emphasise the dignity, of the individual and the •worth. of the
hum~n person by obligating the State to take various measures for
the purpose of securi?g and protecting a social order in which justice
•
social, economic and political, shall inform all the institutions of
G national life. What is the concept of social and economic justice
which the founding fathers had in mind is also el~borated in the
various Ar,ticles setting out the Directive Principles of State Policy.
But all these provisions enacted for the-purpose of ensuring the
dignity or' the~ndividual and providing for his material, moral and
•
H spiritual development would be meaningless and. ineffectual unless
there is rule of law to invest them with life and force.
BACHAN SINGH v. PUNJAB (Bhagwatf, J.) 269

Now lf we look at tbe various constitutional provisions includ- A
ing the Chapters on Fundamental Rights and Directive Principles of
State Policy, it is clear that the rule of law permeates the entire
fabric of the Constitution and indeed forms one. Of its basic features.
The rule of la,,; excludes arbitrariness; its postulate is 'intelligence
with.out passion' and 'reason freed from desire'. Wherever we find
arbirrariiless or unreasonableness there is denial of the rule of law.
B
That is why Aristotle preferred a g9vernment of laws rather than of
men. 'Law,', in the context of the rule of law, does not mean any
law enacted by the legislative· autho.riiy, howsoever arbitrary or
·. " despotic it may b~. Otherwise even under a dictatorship. it wonld
I
be possible io say that there is rule of law, because every law made
by the dictator howsoe-~er arbitrary and unreasonable has .to be obe-
c
yed and every action has to be taken in conformity with such law. In
such a case too even whe.re the political set up is dictatorial, it is
law ·that governs the relationship between men and men and between -
. men and the State. But still i.t is not rule of law as understood in
r - modern jurisprudence, because in jurisprudential terms, the law D
itself in· such a case being an emanation from the absolute will of ihe
dictator it is in effect and substance the rule of man and not of law
which prnvails in such a siiuation: What is necessary element of
the rule of law is that the law must not be arbitrary or irrational
and it must satisfy the test of reason and the democratic form of
polity seeks t~ ensure this element by making the framers of the E
.·'law accountable to the people. Of course, in a country like the
United Kingdom, where there. is no written constitution imposing
fetiers on legislative power and providing for .judicial re.view .of
legislation, it may ·be difficult to hold a law to be invalid on the
ground that it is arbitr.ary and irrational and hence· violative of an
essential element of tqe rule .of law and the only ' remedy if at all F
would be an appeal to ihe electorate at .the time when a fresh man-
' .
date is sought. at the ~lection. But the situation is totally different
·iii· a couptry like India which bas.a '
written Constitution. enacting
Fundamental Rights and conferring p,ower on the courts to enforce
.' them not only against the executive but also against the legislature .
. The Fundamental Rights erect a protective armour for the indivi- G
dual against arbitrary or unreasonable executive or legislative
action. l '

There are three Fundamental Rights in the Constitution which ff
are of prime importan\:e ~iid whil!h breathe vitality iri the concept
270 SUPREME COURT.REPORTS [1983] I S.C.R.

A of the rule of law. They are Articles 14, 19 and 21 which, in the
words of Chandrachud; C.J. in Minverva Mills case(') constitute a
golden triangle. It. is now settled law as a result of the decision of
this Court in Maneka Gandhi's case (supra) that Article 14 enacts
primarily a guarantee against arbitrariness and inhibits State action
whether legislative or executive, which suffers from the vice of
B arbitrariness. This interpretation place\! on Article 14 by the Court
in Maneka Gandhi's case has opened up a new .dimel'lsion of that
Article which' transcends the classificatory principle: For a long
time in the evolution of the constitutional law of our country, the
·courts had construed Article 14 to· mean only this; namely, that you
can classify persons and things for the application of a Jaw but such
c classification must be based on intelligible differentia having rational
relationship to the object. sought to be achieved by the Jaw. But
. the court pointed out in Maneka Gandhi's case that Article 14 was
not to be·equated ·with the principle of classification. 1t was prima-
rily a guarantee against arbitrariness in State action' and the doctrine
D
of classification was evolved only as a subsidiary rule for testing or ,
1 determining whether a particular State action was arbitrary or not.

The Court said "Equality is antithetical to arbitrariness. In fact,
equality and arbitrarin,ess are sworn enemies. One belongs to the
rule Qf -law while the other to the whim and caprice of an absolute \
monarch. Where an act is arbitrary, it is· implicit in it that it is
I
unequal both according to political Jo.gic and constitutional law and
E is, therefore, violative of Article 14." The Court thus l~id dowr.
that every State action must be non-arbitrary and reasonable; if it
is not, the court would strike it 'down as invalid. ' ·

Ttiis view was reaffirmed. by the Court in another outstanding
F
decision in Ramana Dayaram Shetty lnt~rnational Airport Authority of.
India & Ors. There tenders were invited by the Airport Authority for
giving a c9ntract for running a canteen at the Bombay Airport. The
invitation for tender included a condition that the applicant must
have at least 5 years' experience cys a registered 2nd class hotelier.
G Several persons .tendered. One was a person who had considerable
experience in the catering business but he was not a registered 2nd
class hotelier as required by the condition in the invitation to tender. ,
Yet his. tender was accepted because it was the highest. The con- ~-

tract given to him was challenged and the court held ·!hat the action
H of the Airport Autho.rity was illegal. The court pointed out that a

(I) [1979] 3 SCR 1014.
\'
'\ ' .
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 271

\ A
new form of property consisting of government largesse in the shape
of jobs, contracts licences, quotas, .mineral rights and other benefits
and services was emerging in the social welfare State that India was
and it was necessary to develop new forms of protection in regard to
this new kind of property.
,, B
The cour,t held that in regard to.,government largesse, the
· discretion of the government is not unlimited in that the government
cannot give or withhold largesse in its a.rbitrary discretion ,or at its
sweet will. The government action must be based on standards that
are not arbitrary or irrational. · This requirement was spelt out from .
the application of Article 14 as a constitutional .requirement, and it. c
was held that having regard to the constitutional mandate of Arti-
cle 14, the Airport Authority was not ~ntitled to act arbitrarily in
' accepting the tender but was .bound tq_ conform to the standards
or norms laid down by it. The Court thus reiterated and reaffirmed
its commitment against arbitrariness in State action.
'.· D
•
It can, therefore, now be taken to be well-settled that if a law
is arbitrary or irrational, it would fail foul of Article I 4 and would
1
be liable to bo struck down. as. invaiid. Now a law 'may
.' contravene Article 14 because it enacts provisions which are arbi-
trary; as for ex11mple; they make discriminatory classification which
is not founded on intelligible differentia. having rational .relation to E
the object sought to be achieved by the law or they arbitrarily seiect
persons or' things for discriminatory treatment. But there is also
anothercategory of cases where without enactment of specific pro- ,
visions which are arbitrary, a law may still offend 'Article 14 oecause
it confers discretion on an authority to select persons or things for
application of the law without laying down any policy or principle F
to guide the exercise of such discretion. Where such unguided
and unstructured discretion is conferred on an authority, the law
would be violative of Article 14 because it would enable tile atrtho-
rity to exercise such discretion arbitrarily and thus discriminate
wiihout reason. Unfettered and uncharted discretion conferred on
any authority, even if it be the judiciary, thr~ws the door open for - G
arbitrariness, for after all a judge does not cease to be a human
being subject to human limitations wh~ ·he puts on the judicial r~be
and the nature of the judicial process being what it is, it cannot be
entirely free from judicial subjectivism, c,rdozowJ. has frankly
pointed·tbis out in his lectures on "Natqre of the Judicial Process" ; H
..
272 SUPREME ,COURT REPORTS '[I 983] I s;c.R.

A "There bas been a certain lack of caddor in much of
the discussion pf the theme, or rather perhaps in the refusal
fo discuss it, as if judges must lose respect and confidence
by the reminder that they are subject to human .limitations ...
• if there is apything of reality in my analysis of the judicial
process, .they do not stand aloof on these chill and distant .
B heights; and we shall not h.elp the cause of (ruth by acting
and speaking as if they do. The great tides and currents
which engulf the rest of men 'do not turn aside in their
course and pass the judges by.

This facet of the judicial process ·has also been emphasized by
c Richard B. Brandt in bis book on "Judicial Discretion" where he
has said :

"Much of law is designed to avoid the necessity for the
judge t<> reach what Holmes called hii 'can't helps', his
ultimate convictions or values. The force of precedent, the
0
close applicability of statute law, the separation of powers, •
legal presumptions, statutes of limitations, rules of pleading
and evidence, and above all the Pfagma'.tic assessments of
fact that point to.one result whichever ultimate values be·
' assumed, all enable the judge in most cases'to stop short of '· •
E a resort to his personal standards. When these prove un-
availing, as is more likely in the case of courts of last' resort
/
at the frontiers
' '
cif the
. law, and most likely in a supreme
constitutional court, the judge necessarily resorts to his
own scheme of values. It may, therefore, be said that the
most important thing about a jiidge is his philosophy; and
F if it be dangerous for him to . have one, it is at all events
lfsS dangerous than the self-deception of having none.

That is why Lord Cam'den described the discretion of a judge to be
:'the law of \yran.ts; it is always unknown; it is different in different
men; ·it is casual' and depends on C!?nstitutiun, Tamper, and Passion.
G In the best it is often times Caprice, in the worst it is every Vice,
Folly and Passion to whiCb human Natufe is liable " Doe d. Hind-,
son v. Kersey (1765) at p. 53 of the pamphlet published i'n London
· by J. Wilkes in 1971 'entitled "Lord Camden's Genuine Argumer.t
in giving Judginent on the Ejectment between 'Hindson .• and others
against Kersey". Megarry J. also points out in his delightful book
"Miscellany at Law" ~hat "discretion is indeed a poor substitute for
•. BACHAN SINGH v. PUNJAB (Bhagwati, J.) 273

principles, however, great the Judge". Therefore, where discretion A
is conferred on an authority by a statute, the court ·always strains
to find in the statute the policy or principle laid down by the legisla-
ture for the purpose of guiding• 'the exercise of such 'discretion and,
as pointed out by Sµbba Rao, J. as he then was, the court some-
times even tries to discover the policy or principle in the crevices of
the statute in order to save the law'from the challenge of Article 14 · 8
which would inevitably result in striking down of the law if the
discretion conferred were unguided and unf~ttered. · But where after
the utmost effort and intense search, no policy or principle to guide
the exercise of discretion can be ·found, the discretion confeRed by·
the law would be unguided and .. unstructured, like a tumultuous
river overflowing its banks and that would render the law open to
c
·~···
'\ attack on ground of arbitrariness under Article 14. ·
\
So also Article 19 strikes against arbitrary legislation in so far
· as such legislation . is violative of one or the other provisiol\ . of
• clause (I) of that Article. Sub-clauses (a) to (g) of clause (I) of D
Article 19 enact various Fundamental freedoms; sub-clause (!)
guarantees freedom of speech and expression, sub-clause (b), free-
dom to assemble peacefully and without arms; sub-clause (c), free-
dom to. form associations or unions; sub-clause (d), freedom to
move freely throughout the territory of India; sub-clause (e) t.o
reside and settle in any part.of the territory oflndia and sub-clause .E
(g), freedom to practise any profession or to carry on any occupa-
> tion, trade or business. There was originally sub-clause (f) in
~lause (!) of Article 19 which guaranteed freedom to acquire, hold
and dispose of property but that sub-clause was deleted by the
Constitution (Forty Fourth Amendment) Act 1978. Now the free-
doms guaranteed under these various sub-clauses of clause (I) of
F

-?.
" -
Article 19 are not absolute freedoms but they can be restricted by
law, provided such law satisfies the requirement of the applicable
provision in one or the other of clauses (2) to (6) of that Article.
The common basic requirement of the saving provision enacted in
G
clauses (2) to (6) of Article 19 is· that the restriction imposed by the
law must be reasonable. If, therefore, any law is enacted. by the
legislature which violates one or ihe other provision of clauses(!)
of Article 19, it would 'not be protected by the saving provision
enacted in clauses (2) to (6) of that Article, if it is arbitrary or
irrational, because in that event the restriction imposed by it would
"afortiorarl be unreasonable,

'
,, .
274 SUPREME COURT REPO!!.TS (1983] I S.C.R,

A The third Fundamental Right . which strikes againsL arbitrari-
ness in State action is that embodied in Article 21. This Atticle
is worded in simple language and it guarantees the right to life and
personal liberty in the following terms.

"21. No person shall be deprived of his life or per'
sonal liberty except according to procedure established
by Jaw."

This' Article also came up for interpretation in Maneka Gandhi's
cas'e (supra). Two questions arose before the Court in that case :
one was as to what is the content of the expression "personal
c liberty" and the other was as to what is the meaning of the
expression "except according to procedure established 'by law". We
are not concerned here with the first question and hence I .shall not
dwell upon it. But so far as second Ql\estion is concerned,· it pro-
voked a decision from the Court which was to mark the beginning
of amost astonishing development of the .Jaw. It is with this. decision
D that the Court burst forth into on-precedented creative activity •
and gave to the law a new dimension and a new vitality. ·Until this
decision was given, the .view held by this Court was that Article 21
merely embodied a facet of the Diceyian concept of the rule of Jaw
that no one can be deprived of his personal .liberty by executive
action unsupported by law. It was intended to be no more than a
protection against executive action whic.h had no authority .of law.
If there was a Jaw which provided some sort of procedure, it was,
enough to deprive a person of bis life or personal liberty. Even if,
to ;take an example cited by S.R. Das, J, in his Judgment in A.l!:.
Gopalan' v. State of Madras(') the law provided
'
that the Bishop of
F Rochester be boiled in old, it would be valid under Article 21. But •
in Maneka Gandhi's case (supra) which marks a watershed· in· the
history of development of constitutional Jaw in our country, this
Court for the fir;! fone took the view that Article 21 affords pro-
tection not only against executive action but also against Jegisla-
tfon qnd any Jaw which depri.ves a person of his life or personal
G li~rty would be invalid unless it prescribes a procedure for ·such
deprivatio11 which is reasonable fair and just. The concept of rea-
S!lnableness, it was held, runs through the entire fabric of the
Constitution and it is not enough for the law merely to provide
spme:sembJance of a procedure but the procedure for depriving a
.I
(I) [1950].SCR 88.
BACHAN SINGH v. PUNJAB (Bhagwati. J.) i1s
I.
person of his life or personal liberty must be . rasonable, fair and A
~.

just. It is for the court to determine whether in a particular case
the procedure is reasonable, fair and just and if it is not, the
court will strike \!own the law as invalid. If therefore a law is
enacted by the legislature which deprives a person of the life-and ·
'life' according to the · decision of this Court in Francis Coralie
Mullen's v. Administrator, Union Territory of Delhi and Or.•.,(') B'
would include not merely physical existence but also the use of any
faculty or limb as also the right to live with hu111an dignity-or any
aspect of his personal liberty, it would offend against Article 21 if
the procedure prescribed for such deprivation is arbitrary
and unreasonable. Thtt word 'procedure' in Article 21 js
wide enough to cover the entire process by which deprivation is c
effected and that would include not only the adjectival hut also· the
substantive part of the law. Take for example, a law' of preventive
. detention which sets out the grounds on which a person may· be
preventively detained. If a person is preventively detained on a
ground other than those set ·out ·in the Jaw, the ·.preventive deten-
D
tion. would obviously not be according to the procedure prescribed
by the la\V, because the procedure set out in the law for preventively
detaining a person prescribes certaill specific grounds ·on which alone
a person can be preventively, detained, and if he is detained on any
other ground, it would be violative of Article 21. . Every facet of the
law which deprives a person of his life or personal liberty would
E
therefore have to stand the test of reasonableness, fairness and just-
ness in order to be outside the inhibition of Article 21.

It will thus be seen that the rule of law has much ·greater
vitality under our Constitution that it has in other countries like the F
United Kingdom which has no constitutionally enacted Fundamental
Rights. ~The rule of law has really· three. basic and fundamental
assumptions ohe is that law making must be essentially in the hands
of a democratically . elected legislature, subject of· course to any
power in the executive in an emergent situation to prom'!lgate
ordinances effective for a short duration while the legislature. is. not G
in session as als'o to enact delegated legislation in accordance with
the guidelines laiil down by the legislature; the other is that, even
in the bands 'or a democratically elected legislature, there sbouid not
be unfettered legislative power, for, as Jefferson said: "Let no ma11 be
trusted with power but tie him c!C>Wll fro111 · makin~ mischief br the Q.
(J) [1981).2 SCRi516.
·-
276 SUPREME COURT REPORTS· (1983] 1 s.c.R.

A chains of the Constitution"; and lastly there must be an indepen-
. dent judicially to protect the citizen against ,excesses .of executive
and legislative power. Fortunately, whatever uncharitable and irres-
ponsible critics might say when they find a decision· of the court
going against the view held by them, we can confidently assert that
we have in our country all.these three elements essential to the rule
B of law. It is plain and indisputable that under our Constitution law
cannot be arbitrary or irrational and if it is, it would be clearly
invalid, whether under Article 14 on Article 19 or Article 21
• whichever be applicable.

C · It is in the light .of these constitutional provisions that I must
consider whether death penalty provided under Section 302 of the
Indian Penal Code read with section 354 sub-section (3) of the Code
_of Criminal Procedure . is constitutionally valid. Now one thing. is
certain t 1 at the Constitution does not in so many terrns prohibit
capital ponishment. In fact, it recognises death sentence as one. of
D the penalties which may be imposed by law. Article 21 provides inter •
a/ia that no one shall be deprived of his ,(jfe except according to
procedure established by law and this clearly postulates that a person:
may be deprived of his life in accordance with the procedure prescri-
. .;.bed by law or in other words, law may provide a pr<Jcedure, which
- - - - of course according to the decision of this Court in M~neka Gandhi's
E case (supra) must be reasonable, fair and just procedure, for inflict-
ing death penalty on a person depriving him of his life. Clause(c) of
Article 72 also recognises the possibility of a sentence of death being
imposed on a per~on conviCted of an offence inasmuch as.it provi-
des that the President shall have the power to suspend, remit or
commute the sentence of any person who is convicted of an offence
F and sentenced to death. It is therefore not possible to contend that
the imposition of death sentence for conviction of an ~ffence is in all.
cases forbidden by the Constitution. But that does not mean that
the infliction. of death penalty is blessed by the _Constitution or that
it has the imprimatur or seal ot' approval of the Constitution. The
G Constitution is not a .transient document bu( it is 111ean·t to endure
for a Jong time to· come and during its life, situations may arise
where death ·penalty IT\ay be found to serve a social purpose and its
prescription may not be liable to be regarded as arbitrary or un-
reasonable and therefore to meet such situations, the Constitution
had to make a provision and this it did in Article 21 and clause (c)
H of Article 72 SQ that, even ·Where death penalty is prescribed by any
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 271
· law and it is otherwise not unconstitutional, it must still comply · A
with the requirement of Article 21 and it would be subject to\the
clemency power of the President under clause (c) of ArtiCle 72. The
question would however still remain whether the. prescription of ~
death penalty by any particular law is violative of any provtsion of
the Constitution and is therefore rendered unconstitutional. This
question has to be-answered in the present case with refere~ce to B
· section 302 of the Indian Penal Code read with section 354 sub-
section/ (3) of the Code . of Criminal
. Procedure.

Now in order to answer this question it is necessary first of all
to examine the legislative trend in our country so far as the imposi-
tion· of death penalty is concerned. A ''brief survey of the trend of c
legislative endeavours" will, as pointed out by Krishna Iyer, J. in
Rajendra Prasad v. State of U.P.(') "serve to ·indicate whether ·the
people's consciousness has ·been protected towards . narrowing or
widening the scope for infliction of death penalty." If we look at
the legislative history of the relevant provisions of the Indian Penal
Code and the Code of Criminal Procedure we find that in our country' D
there has been a gradual shift against the imposition of death .
penalty. "The legislative development, . through several successive
amendments had shifted the punitive centre of gravity from life·
taking to· life sentence." Sub-section (5) of section 361 of the Code
of Criminal Procedure 1898 as it stood prior to its amendment by
Act 26 of 1955 provided : · E
\

"If the accused is convicted of an offence punishable
with death, and the conrt · sentences_ to any punishment
other than death, the conrt shall in its judgment state th~
reasons why sentence of death was not passed," F

This provision laid down that if an accused was convicted of an
offence 'punishable with death, the imposiiion of death sentence was
the rule and the awarding of a lesser sentence was an exception and
the court had to state· the reason's for not passing the sentence-of
death. In other words, the discretion. was direct.ed positively towards G
death penalty. But, by the Amending Act 26 of 1955 which came
into force with effect from' !st January 1956, this provision was
deleted with the result that from and after that date, it was left to
_ the discretion of the court on tlie facts of each case to pass a sen-
H
. <Il [197913 sec 646.
218 SUPREME COURT REPORTS [1983] I s.c.ll.

A tence of death or to award a lesser sentence. Where the court found
in a given case that, on the facts and circumstances of the case, the
death sentence was not called for or there were extenuating circum-
stances to justify the passing of the .lesser sentence, the court would
award the lesser sentence and not impose the death penalty. Neither·
death penalty nor life sentence was the tole under the law as it
B stood after the abolition of sub-section (5) of the sec!ion 367 by the
Amending Act 26 of 1955 and the court was left "equally free to
award either sentence". But then again, there was a further shift
against death penalty b.Y reason of the abolitionist pressure and
when the new Code of Criminal Procedure 1973 was enacted, sec-
tion 354 sub-section (3) provided;
c
"When the conviction is for ,a sentence 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 11entence awarded and, in the case
of sentence of death, special reasons for such sentence."
D
The court is now · required under this ·provision to state the reasons
for the sentence awarded and in case of sentence of death, special
reasons are required to be stated. It will thus be seen that life
sentence is now the rule and it is only in exceptional cases, for
E special reasons, that death sentence can be imposed. The legislature
bas however not indicated what are the special reasons for which
departure can be made from the normal rule and death penaltfmay
be inflicted. The legislature has· not given any guidance as to what
are those exceptional cases in which, deviating from the normal rule,
death sentence may be imposed. This is left entirely to the unguid-
F ed discretion of the court, a feature, which, in my opinion, bas lethal '
/ '

consequences so far as the constitutionality of death penalty is .con·
cerned. But one ,thing is clear that through these legislative changes
"the disturbed con'science of the State on the question of legal
threat to life by way of death sentence ·has sought to express itself
legislatively", the stream of tendency being towards cautions
G abolition.

It is also interesting to note tba.t a further legislative attempt
towards restricting and rationalising ..death penalty was made in the
late seventies. A Bill called Indian Penal Code (Amendment) Bill
H
1972 for amending section 302 was passed by the Rajya Sabha in
1978 and it was pending in the Lok Sabha at the time when Rajendra ·
BACHAN SINGH v PUNJAB (Bhagwati, J.) 279
A
Prasad'ii rase was decided and though it ultimately lapsed with the
dissolution of the Lok Sabha, it shows how strongly were th~ !11~nds
of the elected representatives of the people agitated against: "ho,i-
cidal exercise of discretion" whifh is often an "obsession with.
retributive justice in disguise". This Bill sought to narrow drasti•
~cally the judicial discretion to impose death penalty and tried to for- 8
mulate the guidelines which should co"ntrol the exercise of judicial
exercise in this punitive area. But unfortunately the Bill though passed
. by the Raj ya Sabha. could not see its way through the Lok Sabha
and was not enacted into la:w. Otherwise perhaps the charge against
the present section of 302 of the' Indian· Penal Code read with section
354 sub-section (3) of the Code. of Criminal Procedure that it does
·1..- not indicate any policy or principle to guide the exercise of jud,icial
c
--' ~ ' . discretion in awarding death penalty, would have been considerably .'
diluted, though even then, I doubt very much wh_ether. that section
could have survived the attack against its C<>ll,Stitutional!y .on the
.ground that it still leaves the door open for arbitrary exercise of
discretion in imposing death penalty. D
Having traced the legislative history of the releviiiit-provisions
in regard to death penalty, I will now turn my attention to what
great and eminent men have said in regard to death penalty, for
their words serve to bring out in ·bald relief the utter barb~rity a:nd
futility of the death penalty. Jaiprakash Narain, the great humanist, E
said, while speaking on abolition of death penalty ;
>
"To my mind, it is ultimaiely a question of respect for
life and human approach to those who commit grievous
hurts to others. Death sentence is no remedy fcir su~h·
F
crimes. A more humane· and. constructive remedy is to
remove the culprit .concerned from the normal milieu and
treat him as a mental case. I am sure a l~rge proportion
of the murderers could be weaned· away from their path
and their mental condition sufficiently improved to become
' useful citizens. In a minority of cases, this may ·not be
possible. They may be kept in prison houses tilf they die
a natural death. This may cast a heavier economic burden
ori society than hanging. But I have no doubt that· a
humane treatment even or·a murderer will enharite ·man's
dignity and make society more human .. H
·~ ~ -

(emphasis added)
280 'SUPREME COURY REl>Oll.'ts (1983] 1 s.c.a·.

A Andrei Sakharov i'n a message to the Stockholm Conference on Aboli-
tion of death Penalty organised by Amnesty International in 1978
expressed himself firmly against death penalty :

"I regard the death penalty as a savage and immoral
institution which undermines the moral and legal founda-
B tions of a society. A. state, in the person of its functionaries
who like all people are inclined to making superficial con~
clusions, who like all pegple are subject to influence, con-
nections, prejudices and egocentric· motivations for their
behaviour, takes upon itself the right to the most terrible
and irreversible act-the deprivation of life. .Such a State
c cannot expect an improvement of the moral atmosphere in
its country. I reject the notion that the death penalty has
any essential deterrent effect on potential offenders.' I am·
convinced that the contrary is true-that savagery begets
only savagery ... I am convinced that society as a whole and
· each of its members individually, .not just the person who •
D comes ·before the courts, bears a responsibility for the
<5ccurrence of a crime: I believe that the death penalty.has
no moral or practical justification and represents a survival
of barbaric customs of revenge. Blood thirsty and calculat-
ed revenge with no temporary insanity on the part of the
judges, and therefore, shameful and .disgusting."
E
(emphasis added) ·

Tolstoy also protested against death sentence in an article "I Cannot
be Silent" : I ·

, "Twelve of those by whose labour we ·live, the very
men whom we have depraved and are still depraving by
every means in our power-from the poison of vodka to
the terrible falsehood of a creed we impose on them with
G all our might, but do not ourselves believe in-twe/ve of
those men strangled with cords by . those whom we
feed and clothe and house, and who have depraved and
still continue to deprave them. Twelve husbands, fathers,
and sons, from a~ong those upon whose kindness, industry
H
and simplicity alone rests the whole of Russian life, are
seized, imprisoned, and shackled. Then their haQds are tied

/
'

BACHAN SINGH v•.PUNJAB (Bhagwati; J.) :ill!

behind their backs Jest they should seize the ropes by wjiich A
they are to be hung, a~d they are led to the gallows."
..
So also said Victor Hugo in the spirit of the Bishop created· by him
In his 'Les Miserables' : .
I
"We shall look upon crime as a disease.· Evil. will be 8
treated in. charity instead of anger. The change will be
simple and sublime. The cross shall displace the scaffold,.
!
reason is on our side, feeling is on our side, and experience
is on our side."

Mahatma Gandhi also wrote to the same effect in bis simple but
c
inimitable style :

"Destruction of individuals can never .be a virtuous ·
act. The evil doers cannot be done' to death.. Today
,> there is a·· movement afoot for the abolition of capital D
· punishment and attempts are being piade to convert pri-
sons into hospitals as if they ·are persons suffering from a
. \'
disease."
\

· This Gandhian concept . was translated into action with -commend-
·able success in the case of Chambal dacoits who laid down their E
, arms in response to the cit!! of Vinobha Bhave· and Jaiprakash
· Narayan. See "Crime and Non-violence" by Vasant Nargolkar.
There is also the recent instance of surrenoer of Malkhan Singh, a
notorious·dacoit. of Madhya Pradesh. Have these dacoits not been ·
reformed ? Have · they not been redeemed and saved ? What
social purpose
' .
would have been served by killing them ?,
\
F

I may also at this stage make a few observations in regard. to
the barbarity and cruelty of death penalty, for the problem of consti-
tutional validity of death penalty cannot be appreciated· in its
proper perspective without an adequate understanding of the true · · G
nature 'of death penalty and what it involves in terms of human
anguish and suffering. In the first place, death penalty is irrevocable;
it cannot be recalled. It extinguishes the flame of life for ever and ,
is plainly destructive of the right to life, the most precious right of
all, a right .without which enjoyment of no other rights is possible. H
It silences for ever a living being and despatches him to that
'undiscovered country from wlj.ose bourn no ·traveller returns' nor,
SUPREME COUllT llBPORTS [1983] I s.c.R.
A once executed, 'can stored urn or animated bust back to its mansion
call the fleeting breath'. It is by reason of its cold and cruel finality
that death penalty is qualitatively different from all other forms of
punishment. If a person is sentenced to imprisonment, even if it be.
for life, and subsequently it is found that he was innocent and. ·was
wrongly convicted, he can be set free. Of'course the imprisonment
B . that he has suffered till then cannot be undone and the time he bas
spent in the prison cannot be given back to him in specie but he can
come back and be restored to normal life with his honour vindicated
if he is found innocent. But that is not possible where a person has
been wrongly convited and sentencted to death and put out of
existence in pursuance of the sentence of death. In his case, even if
c any mistake is subsequently discovered, it will be too late; in every
way and for every purpose it will be too late, for he cannot be
brought back to life. The execution of the sentence of death in such
a case makes miscarriage of justice irrevocable. On whose conscience
will this death of an innocent man.lie? The State through.itsjudicial
instrumentality would have kil[ed an innocent man. How is it diffe-
D rent from a private murcter ? That is why Lafayatte said : "I shall
ask for the abolition of the penalty of death until I have the infalli-
bility of human judgment demonstrated me."

;
It is argued on behalf of the retentionists that having regard
' .
to the elaborate procedural safeguards enacted by the law in cases
E involving capital punishment, the possibility of mistake is more
imaginary than real and these procedural safeguards .virtually make
conviction of an innocent person impossible. But I do not .think
this argument is well founded. It is not supported by factual data.
Mugo .Bedau in his well known book,. "The Death .Penalty in
F America" has individually documented seventy four cases since 1893
in which it has been responsibly charged and in most of them.proved
beyond doubt, . that persons were wrongly convicted of criminal
homicide in America. E_ight out of these seventy four, though
innocent, were executed. Redin, Gardener, Frank and others have
specifically identified many more additional cases. _These are cases
G in which it has been possible to show from discovery of subsequent
facts that the convictions were erroneous and innOCe!lt persons were
put to death, but there may be many more cases where ~y reason of
the difficulty of uncovering the facts after conviction, let alone after •
executfon, it may not be possible to establish that there was mis-
H carriage of justice. The jurist Olivecroix, applying a calculus of
probabilities to the chance of judicial error, concluded as · far back /
BACHAN SINGH •• PUNJAB (Bhagwati, J.) 283

as in 1860 that approximately one innoce!}t. man ·was condemned A
out of every 257 cases. The proportion seems low but only in rela-
tion' to moderate punishment. In relation to capital .punishment,
the proportion is infinitivelly high. When Hugo wrote that he pre-
ferred to call the guillotine Lesurqtles (the name of an.. innocent
man guillotined in the Carrier de Lyon case) be did not mean that
every man who was decapitated was a Lesurques, but that one
B
Lesurques was enough to wipe out the ·value of capital punishment
for ever: It is interesting to note that where cases of wrongful execu-
tion have come to public attention, they have been a major force
responsible for bringing about abolition of death penalty. The

- Evans case in England in whi~h an innocent man was hanged in 1949
played a large role in the abolition of capital punishment in that
·country. Belgium also abjured capital punishment on /account of
one such judicial error and so did . Wisconsin, Rhode Island. and
c

Maine in the United States of America .

.• Howsoever careful may be the procedura·l safeguards erected D
-by the law before death penalty can be imposed, it is impossible to
•
eliminate the chance of judicial error. No possible judicial safe-
guards can prevent conviction of the innocent. Students of the
criminal process have identified several reasons why innocent men
may be convicted of_ crime.· In the_ first place, our methods .of
investigation are crude and archaic. We are, by and large, ignorant .E.
of modern methods of investigation based ' on scientific and technolo-
>
gical advances. Our convictfons are based largely on .oral evidence
of witnesses. Often; witnesses perjure themselves as they are
/ ·~motivated by caste, communal and factional considerations. ·Some
times they are even .got up by the police to prove what th_e police
believes to be a true case. Sometimes ·there is also mistaken eye F
)
~( witness identification and this evidence is almost always difficult
I to shake in cross-examination. Then there is also the possibility
of a frame up of innocent men by their enemies. There are also ~ases '
where an over zealous prosecutor m~y fail to disclose evidence of
.
innocence known to him .
but not known to the defence. The
possibility of error in judgment cannot_ therefore be ruled out on
G
any· theoretical considerations. It is indeed a very live possibility
and it is not at all unlikely that so long as death penalty renlains a
consiitutionally valid alternative, the court or the State acting
through the instrumentality of the court may have· on its comcience
the blood of an innocent man.
ff
SUPREME COiJilt REPORTS 1!98~] I s.c.il.

A Then again it is sometimes argued that, on this reasoning, every
cri'minal trial must necessarily raise the possibility of wrongfui con-
viction and if that be so; are we going to invalidate every form of t- .

. punishment? But this argument, I am afraid,' is an argument ·of
. despair. There is a qualitative difference between d.eath penalty and.
other forms of punishment. I have already pointed out that the
R former extinguishes the flame of life altogether and is irrevocable and
beyond recall while'the latter can, at least to some extent be set right,
if found mistaken. This vital difference between death penalty and
imprisonment was emphasized by Mahatma Gandhi when be said
in reply to a German writer ;

"I would draw diptinction between · killin,g and deten-.
tion and even corporal punishment. I think there is a
difference not merely in quantity but also in quality.
I can recall the punishment of detention. I can make
-
reparation. to the man upon whom I inflict corporal
punishment. But once a man is killed, the panishment
D •
is beyond recall or reparation."

The same point ~as made by the distinguished criminologist Leon
Radzinowicz when he said : "The likelihood of error in a capital
sentence case stands on a different footing altogether." Judicial
error in imposition of death penalty would indeed be a crime beyond
E punishment. This is the drastic nature of death penalty, terrifying in
its consequences, which has to be taken into account in determining
in constitutional validity.

It is also necessary to point out that death penalty is barbaric
and inhuman in its·effect, mental and physical upon the condemned
' man and ·is positively cruel. Its psychological effect on the prisoner
in the Death Row is disastrous. One Psychiatrist has described
Death Row as a "grisly laboratory" "the ultimate experiment al
siress in which the condemned prisoner's personality is incredibly
brutalised." •He points out that "the strain of existence on Death
Row is very likely to produce ...... acute psychotic breaks." Vide the
G
article of ''West on Medicine and Capital Punishment." Some in-
mates are driven to ravings or delusions but the majority sink into a
sort of catatonic numbness under the over-whelming stress." Vide
"The Case against Capital Punishment" by the Washington Research .
H Project. Intense mental suffering is inevitably associated with con-
finement under sentence of death. Anticipation of approaching
.,
.
BACHAN SINGH v. PUNJAB (Bhagwatl, J.)
. 285

death can ·and does produce stark terror. Vide article on "Mental A
Suffering under Sentence of Death". 57 Iowa Law Review 814.
Justice Brennan in his opmton in · Furman v.. Georgia(')
gave it ~s a · reason for holding the capital punishmeni.: to .be
unconstitutional that menta_l pain is an inseparable part of our prac-
tice of punishing criminals by death, for the ·prosi)ect of pending
execution exacts a frightful° toll during the inevitable long wait bet-
ween the imposition of. sentence and the actual infliction of death."
Krishna Iyer, J. also pointed out in Rajendra Prasad's case (supra) that
. because the con.demoed prisoner had "the hanging agony hanging
over his head since 1973 (i.e. for six years) ... "he must by now be
more a vegetable than a person." He ·added. that "the . excruciation
''") of long pendency of the death sentence with the.prisoner languishing
c.
\ near-solitary suffering all the time, may make the death sentence
)
.~nconstitutionally cruel and· agonising." The California ·.Supreme
Court also,. in finding the death penalty .per se u"nconstitutional
remarked with a sense of poignancy :
D
"The cruelty of'capital"puriishment lies not only in the
execution itself and the pain incident tl]ereto, but also in
the dehumanising effects- of the lengthy imprisonment
prior to execution during which the judicial and adminis-
trative procedures essential to due process of law are
carried out. Penologists and medical experts agree . tl)at E
the prlicess of carrying out a verdict of death is often so
> ·degrading and brutalizing to the human spirit as to consti·
tute psychological torture."

In Re Kemmier(2) - the . Supreme Court of the United States
accepted that "punishments are cruel when they involve a lingering F
death, something more than the mere extinguishment of life." Now
.a death wouldbe as lingering if a man spends severar-y~ars in a
<lea.th cell availing execution as it would be if the method ·of execu-
tion takes an unacceptably long time to kill the vicfim. The pain
of menfal lingering can be as intense as the agony. of physical
lingering. See David Pannick on "Judicial Review of the Death
Penalty." Justice. Miller also pointed out in Re Medley(') that
·"when a prisoner sentenced by a court to death is confined to the

(1) 408 us 238.
(2) 136 us 436..- ff
(3) 134 us J60,
286' SUPREME COURT REPORTS. it 983] l s.c.R.
A • penitentiary awaiting. the execution of the sentence, one of the
most horrible feelings t~ which he can be subjected during that time '
is the uncertainty during the whole of it ...•.. as to the precise time
when his execution shall take place." · We acknowledged that such
uncertainty is inevitably' 'accompanied by an ,. immense mental.
anxiety amounting to a / great increase of the offender's punish-
B ment.'
' .

But quite apart from ·this excruciating mental anguish and
'.severe psychological strain which the. condemned prisoner .has to
undergo on account of the Iong·wait from the date when the sen-
c tence of death is initfally passed by the session's court nntil · it is
confirmed by the High Court and theri the appeal against the death
·sentence· is disposed of by the Supreme Court and if the appeal .is
- dismjssed, then_ until the clemency petition is considered by the
, Pesident and if it is turned down, then until the time appointed· for
actual execution of the sentence of death arrives, ihe worst time
D for most· of the condemned ·prisoners would be ihe last few hours
'lj'hen all certainty is g~ne and the moment . of death , is known.
Dostoyevsky who actually faced a firing. squad only to be reprieved
··at the last instant, described this experience· in .·the following·
words: · ·
'E \ ..
" ... the chief. and· the worst pain 'is . perhaps not.
inflicted· by wounds, but .by your certain knowledge that
..•. . in an hour, in ten .minutes, in half a minute, now this
moment your soul will fly out of your body, and.that you
will be a human being no longer, and that th'at's certain-·
the main' thin.g is that it is certain .. Take a ·soldier and put
' ' · . him in front of a cannon in battle 'and fire at him and he -
• will still hope, b~t read the same soldier his: death s'entence .
_for certain, and he will go mad or burst out, crying. Who )
. says that human nature is' capable ·of ·bearing this without
madness''? Why this cruel, hideous,· unnecessary and use-
G
less mockery? ·Possibly there are men who have sentences .
'of death read out to them. and have been .. given time to go
._ · ' through this torture, and have then· been told, You· can go"
. now, you've been reprieved. -Such men could perhaps !ell/ ).
' - '

us. ; It was of agony like this and of such horror thaf
.C~rist spoke. No you can't. treat a man· like.that."

.'

i
\.
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 287

A
We have also accounts of execution of several prisoners in the
United States which show how in these last moment condemned pri-
soners often simply disintegraie. Canns lias in frank and brutal
language bared the terrible psychological cruelty of capital punish-
ment:
B
/"Execution is not simply death. It is just as different
in essence, from the privation. of life as a . concentration
camp is from prison ...... It adds to death a rule, a public
premeditation known to the future victim, an organisa-
a
tion, in short, which is in itself source of moral sufferings
more terrible than death ... For there to be equivalence, the c
-. "' would have to punish a criminal who had
death penalty
-"\" - warned his. victim of the date at which he would inflict a
I horrible death on him and who, from that moment onward,
had confined him at his mercy for months. -Such a monster
fa not encountered in private life·."
D
There can be no stron.ger words to describe the utter depravity and
inhumanity of death sentence.

The physical.pain and suffering which the execution of the sentence
of death in~olves is also no less cruel and inhuman. In lndia; the
method of execution 'followed is hanging by the rope. Electrocution
E
or application of lethal gas has not yet taken its place as in som~ of
the western countries. It is therefore with reference to, execution by
hanging that I must consider whether the sentence of death 1s bar-.
baric and inhuman as entailing physical pain and agony. It is no
doubttrue that the Royal Commission on Capital Punishment F
1949-53 found that hanging is the most humane method of execu-
tion and so also in Ichikawa v. Japan,(') the ·Japanese Supreme
Court held that exe6"ltion by hanging does not corrospond to 'cruel
punishment' inhibited by Article 36 of the Japanese Constituion.
But whether amongst all the methods of execution, hanging is the
most humane or in the view of the Japanese Supreme Court, hanging G
is not cruel punishment within the meaning of Article 36, one thing
is clear that hanging is undoubtedly accompanied by intense physical
torture and pain. Warden Duffy of San Quentin, a high' security
• H
(1) Vide : David Pannick on "Judicial Review of Death Penalty, page 73,

' -
288 SUPREME COURT REPORTS (1983) 1 S.C.R.

A prison in the Vnited ·states of America, describes the hanging pro:
cess with brutal frankness in lurid details :

"The _day before an execuition the prisoner goes
through a harrowing experience of being weighed, measured
for length of drop to assure breaking of the neck, the size
B
of the neck, body measurement et cetera. When the trap
. springs he dangles at the end of the rope. There are
times when the neck has not been broken and the prisoner
strangles to death. His eyes pop almost out of his head,
his tongue swells and protrudes from his mouth, his neck
·c D!ay be broken, and die rope many times takes large por-
tions of skin and flesh from the side of the face and that the
noose is on. He urinates, be"defecates, and droppings fall
to the floor while witnesses· look on, ' and at almost all
executions one or more faint or have to be helped out of the
witness room. The prison.er remains dangling from
D the end of the rope for frqm 8 to 14 minutes before the •
doctor, who has climbed up a small ladder and listens to ·
his heart beat with a stethoscope, pronounces him dead. A
prison guard stands at the feet of tlie hanged person and
bolds the-body steady, because during the first few minutes
there is usually considerables struggling in an effort to
E breathe."

If the drop is too short, there will be a slow and agonising death by
'-
st~angulation. On the other hand, if the drop is too long, the
bead will be torn off. In England 'centuries of practice have pro-
duced a detailed chart relating a man's weight and physical condi-
tion to _the proper length of drop, ·bgt even there mistakes have been
made. In 1927, a surgeon who witnessed a .!!ouble execution
wrote:

"The bodies were cut down, after fifteen minutes and
G placed in an antechamber, when I was horrified to bear
one of the supposed. corpses give a gasp and. find him ·
making respiratory efforts, evidently a prelude to revival.
The two bodies were quickly suspended 'again for a quarter
of an hour longer ... Dislocation of the neck is the ideal •
.ff aimed at, but, out of all my post-mortem :findings, that bas
proved r11ther an exception, which in the majority of
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 289

instances the cause ·of death was strangulation and A
asphyxin."

These passages clearly establish beyond doubt ·that the execution cif
sentence of death by hanging does involve intense physical pain and
suffering, though it may be regarded by some as more humane than B
electrocution or application of lethal gas.

If this be the true mental and physical effect of death sentence
on the condemned prisoner and if it causes such mental anguish,
·. psychological strain and physical ago·ny and suffering, it is .difficult . ·
to see how it can be regarded as anythin~ but cruel and inhuman. e
The only answer which can be given for justifying this infliction of
mental and physical pain and suffering is that the condemned
·prisoner having killed a human being does not merit any sympathy
and must suffer tbis punishment because he 'deserves' it. No
mercy can be shown to one who did not show any mercy to others.
But, as I shall presently point out, this justificatory reason cannot D
commend itself to any civilised s.ociety because it is based on the.
· theory of retribution or retaliation and at the bottom of it lies the.
desire of the society to avenge itself again$! the wrong doer. That
is not a permissible penological goal.
E
• It is in the. context of this background that the question has
to be considered whether death penalty provided under section 302
of the Indian Penal Code read with section 354 sub-section (3) of
the Code o(Criminal Procedure is arbitrary and irrational for if it
is, it would be clearly violative of Articles J4·and 21. I am leaving
aside for the moment chalienge to death penalty tinder Article 19
F
( and confining myself only to the challenge under Article 14 and 21.
' So far as this challenge is concerned the learned counsel appearing on
ll'ehalf of the petitioner contended that the imposition d dea\h penal-
ty under section 302 of the Indian Penal Code read with section 354
sub-section (3) of the Code of Criminal Procedure was arbitrary and G
unreasonable, firstly because if was cruel and inhuman, dispropor-
tion.ate and excessive, secondly because it was totally unnecessary
and did not serve any social purpose ot advance any constitutional'
value and lastly beca~se the discretion conferred on .the court to
awarli death penalty was not guided by anY policy or principle laid H
down by the legislature but was wholly arbitrary. The Union of
India as also the States supportin11 it sought to counter this arg11-
290 SUPREME COURT REPORTS [1983) I s.c.tt.

A ment of the petitioners by submitting first that death penalty-is
neither cruel nor inhuman, neither disproportionate nor excessive,
secondly, that it does serve a social purpose inasmuch as it fulfils
two penological goals namely, denunciation by .the community and
deterrence and lastly, that the judicial discretion in awarding death
penalty is not arbitrary and the court can always evolve standards
B or norms for the purpose of'guiding the exercise of its discretfon hi •
this punitive area. These were broadly the rival contentions urged
on behalf of the parties and I shall now proceed to examine them
in the light of the observations made in the preceding paragraphs.

c The first question that arises for consideration on these con:
tentions is-and that is a vital questio-n which may well determine
the fate of this challenge to the constitutional validity of death
penalty-on whom does the burden of proof lie in a case like this 1
Oqes it lie on the petitioners to show th•t death penalty is arbitrary
and unreasonable on the various grounds urged by them or does it
D rest on the State to show that death penalty is not arbitrary 0 r un-
reasonable and serves a legitimate social purpose. This question
was debated before us at great length and various decisions were
cited supporting one view or the other. The earliest decision relied
on was that of Saghir Ahmed v. State ojUttar Pradesh(') where it
·was held by this Court that if the petitioner succeeds in showing that
E the imi:mgned law ex facie abridges or transgresses the rights coming
under any of the sub-clauses of clause.(!) of Article 19, the onus
shifts on the respondent State to show .that·· the legislation comes
within the permissible. limits authorised by any of clauses (2) to (6)
as may be applicable to the c'ase, and also to place material before
' the court in snpport of that contention. If the State fails to dis~
F charge this burden, there is no obligation on the petitioner to prove
negatively that the impugned law is not covered by any of the per-
missive clauses. This view as to the onus of proof was reiterated by
this Court_ in Khyerbari Tea Company v. State of Assam('). But '
contended the respondents; a c·ontrary trend was noticeable in some
of the subsequent decisions of this Court and the respondents relied
G principally on the decision in B. Banerjee v. Anita Pan( 3)where Krishna
Iyer, J. speakfog on behalf of himself and Beg, J. as he then was,

<n [1955] 1 SCR 707..
(2) [1964] 5 SCR 975.
(3) [1975] 2 S.C.R. 774,
_BACHAN SINGH v. PUl!JAB (Bhagwati, 'J.) 291

recalled the following statement of the law from the Judgment of A
this Cou.rt in Ram Krishna Dalmia v. S.k Tendo/kar & others ·:( 1)

"there is always a presumption in favour of the consti-
tutionality of an· enactment Wid the burden is upon him
who' attacks it to show that there has been a clear transgres-
sion of the constitutional principles:" · B
and
"that it must be presumed that the -1egishiture under--
stands and correctly appreciates the need of its own people, ....
that its laws are directed to problems made manifest by
experienc_e and that its discriminations -are based on ade-
c
----\-- quate grounds." '

and added ·that "if nothing is placed on record by the challengers,
the verd_ict or<,!1riarily goes against them." Relying inter alia on the
decision of this Court in State of Bombay v. R.M.D. Chamarbaug- D
wa/a( 2 ) the learned Judge again emphasized :

·"Some courts have gone to the extent of holding that
there is a-presumption in. favour of constitutionality, and a
law will not· be declared unconstitutional unless the case is
so clear as to be free from doubt." L E
' I
These observations of Krishna Iyer, J, undoubtedly seem to
support the contention of the respondenis; but it may. be pointed
out that what was said by this Court in the passage' quoted above
from -the judgment in Ram Krishna Dalmia's case (supra) on which .
reliance was -placed by. Krishna Iyer, J. was only with reference to F
·the challenge under Article 14 and the Court was not considering ~
there the challenge under Articles 19 or 21. This statement of the
. law contained in Kam Krishna Dalmia's cdse (supra) could not
therefore be applied straightaway without anything more in a case
where a law was challenged under Articles 19 or 21. The fact, however,
remains that Krishna Iyer, J. relied on this statement· of the law G
even though the case before him involved a challenge under Article
i9(1) (f) and not under Article.14. Unfortunately, it seems that the
attention of the learned Judge was not invited to the decisions of
this Court in Saghir 1hmed' s case and f(hyer~qri Teq Cqmpany' s case
H
(1) [1959] SCR 297.
(2) [1957] SCR 874.
' '
292 SUPREME COURT REPORTS [19S3) I S.C,R.

A (supra) which were cases directly involving challenge under Articl.e 19.
These decisions were binding on the learned Judge and if his atten·
tion had been drawn to them, I am sure that he would not have made
the observations that he did
. casting.
on the petitioners the onus' of
establishing "excessiveness or perversity in the restrictions imposed
by the statute". in a case alleging violation of Article 19. These
B observations are clearly contrary to the law laid down in Saghir
Ahmed and Khyerbari Tea Company cases (supra)

The respondents also relied on the observations of Fazal Ali,
J.
.
in Pathumma v: State of Kera/a (1 ). There the constitutional
.
validity of the Kerala Agriculturists'. Debt Relief Act 1970 was
c challenged on the ground of violation of both Articles 14 and 19(1)
(f). Before entering upon a discussion of the arguments bearing on
the validity of this challenge, Fazal Ali, J. speaking on behalf of
himself, Beg, C.J., Krishna Iyer and Jaswant Singh, JJ. observed that
the court will interfere with a statute only ''when the statute is clearly
violative of the right conferred 011 the citizen under Part III of the
D
Constitution" and proceeded to add that it is 9n account of this
reason "that courts have recognised that there is afways a presump·
tion in favour of the constitutionality of a statute and the onus to
prove its invalidity lies on the party . which assails the same.'' The
learned Judge then quoted with approval the following passage from
-·
E the Judgment of S.R. Das, C.J. in Mohd. Hanifv. State of Bihar (2 ) ·

"The pronouncements of this Court further establish,
amongst other things, that there is always a presumption in
favour ol' the constitutionality of an enactment ~nd that the
F burden is upon him, who attacks it, to show that there has
been a clear violation of th" constitutional principles. The
Courts, it is accepted, must presume that tbe legislature
understands and correct.ly appreciates the needs of its own
people, that its laws are directed to problems made manifest
by experience ·and that its discriminations are based on
G adequate grounds.''

It is difficult to see how these observations can be pressed into service
on behalf of'the respondents. The passage from the judgment of

H (I) [1970] 2 SCR 537 ..
(2) [i959] S.C.R. 6i9,
nACIJAN SINGIJ v. PUNJAB (Bhagwati, J.) 293

S.R. Das, C.J. in Mohd. Hanif's case (supra) relied upon by Fazal
A
Ali, J. occurs in the discussion relating to the challenge u1de'r Article
14 and obviously it was not intended to have any application iri•a
ci:se involving challenge under Article 19 or 21. In fact, while dis-
cussing the ch~llenge to the prevention of cow slaughter statutes
under Article l 9(l)(g), S.R. Das, CJ. proceeded to consider whether B
the. restrictions imposed by the impugned statutes on the Funda-
mental Rights of the petitioners under Article 19(i)(g) were reason·
able in the interest of the general public so as to be saved by clause
(6} of Article 19. Moreover, the observations ·made by Fazal Ali,",
). were general in nature and they were not directed towards conside·
ration of the question'as to the burden of proof in cases involving vio- c
t-·
lation of Article 19. What the learned Judge said was that there is al-
ways a 'presumption in favour of the constitutionality of a statute and
J the court will not interfere unles~ the stat.ute is clearly violative of the
Fundam)!ntal Rights conferred by Part III of the Constitution. · This
is a perfectly valid statement .of the law and no exception can be
taken to it. There must obviously bea presumption in favour of D
the constitutionality of a statute and initially it would· be for the peti-
.tioners
. to show that it violates a Fundamental Right conferred '
under
one or the other sub-clauses of clause (!) of Article 19 and is there- .
fore unconstitutional, but when . that is done, the question arises, on
whom does the burden of showing whether the restrictions are
permissible or not, 1\e ? That was. ~oi a question dealt with by E
Fazal Ali, J. and I cannot therefore read the observations of the
lea~ned Judge as, in any manner, casting doubt on the validity of the
statement of law contained in Saghir Ahmed and Khyerbari Tea·
Company's . cases (supra). · It is clear on first principle that sub-
, clauses (a} to (g) of clause (1) of Article 19 enact certain fundamental
freedoms and if sub-clauses (2) to (6} were not there, aiiy law con· F
!ravening one or more of these fundamental freedoms would have
0

been unconstitutional. But clauses (2) to (6) of Article 19 save laws
restricting these fundamental freedoms, provided 'the. restrictions
imposed by them fall within certain permissible categories. Obviously
.. therefore, when a' law is challenged on the ground that it imposes
restrictions on the freedom gu~ranteed by one or the other sub- ·
G
clause of clause (I} of Article 19 and the restrictions are shown to ~
· exist by the petitioner, the burden of establishing that the restrictions
fall within any .of the permissive clauses (2) to (6) which 'may be
applicable, must rest upon the State. The State would have to H
produce material for satisfying the_court that the restrictions imposed
. ,

294 SUPREMH COll)J.T RBPOR~S . , [1983 j i S.C!ll.
A by the impugned law fall within the appropriate permissive clause
from out of clauses (2) to (6) of Article 19. Of course there may be
cases where the nature of the legisllation and the restrictions imposed
by it may be such that the court may, without mor~, even in the
absence of any positive material produced by the State, conclude
that the restrictions fall within the permissible category, as for
8 example, where a law is enacted- by the legislature for giving effect
to one of the Directive Principles of State Policy and prima facie,
the restrictions imposed by it do not appear to be arbitrary or exces-
sive.· Where such is the position, the burden would again shift and
it would be for the petitioner to show that the restrictions are
arbitrary or excessive and go beyond what is requireC! in public
c interest. But, once it is shown by the petitioner that the impugned·
law imposes·restrictions which infringe one or the other sub·clause
of clause (1) of Article 19, the burden. of showing that such.restric-
tions are reasonable and fall within the permissible category must be
on the State and this burden the State may discharge either by pro-
ducing socio economic data before the court or on consideration of
.the provisions in the impugned law read in the light of the constitu-
tional goals set out in the Directive Principles ofState Policy. The
test to be applied for t1'e purpose of determining whether the restric-
tions imposed by the impugned law are reasonable or not cannot be
cast in a rigid formula of universal application, for, as pointed out
by Patanjali Shastri, J. in. State of Madras v. V.J. Row (1) "no
E
abstract standard or general patt1irn of reasonableness can be laid
down as applicable to all cases". The nature of the right alleged to
· have been infringed, the underlying purpose of the restrictions
imposed, iJte extent and urgency of the evil sought· to be remedied,
·tbe value of human life, the disproportion of the imposition, the
social philosophy of' the Constitution and the prevailing conditions
F
at the time would all enter into the judicial verdict. And we would
do well to bear in mjnd that in evaluating such elusive factors and
forming his own conception of what is-reasonable in all the circum-.
stances of a given case; it is inevitable that the social philosophy and
the seal~ of values of the judge participating in the decision would
G · play a. very important part.

Before I proceed to consider the question of burden of proof
in case of challenge u~der Article 14( it would be convenient first to

H (l) [1952] SCR 597,
'.BACHAN slNGll v. PUNJAB (Bhagwati, J.) , . 295

'-
A
deal with th·e question as to where does the burden of proof lie
· ' when the challenge to a iaw enacted by the legislature is based ou
•, violation of Article 21. The position in regard to onus of proof in
a case where the challenge is under Article 21 is in my opinion much
clearer and much more free from d_oubt or debate than in a case
where the complaint is of violation of clause (1) of Article 19. ·
B
Wherever there is. deprivation of life, and by life I mean not only
physical existence, but also use. of any f~culty or limb through which
life is enjoyed and basic human dignity, or of any aspect of personal
liberty, the burden -must rest on the State to establish by producing
adequate· material or otherwise that the p·rocedure prescribed for
such deprivation is not arbitrary but is reasonable, fair and just. I
have alr_eady discussed various ci1cumstances bearing upon the true
c
nature. and character of death penal,ty and these· circumstances· clearly
indicate that it is reasonable to place .ou the State the onus to prove
that death peualty is not 'arbitrary or unreasonable and serves a .
compelling State interest. In the first place, death penalty destroys
the most fundamental right of all, namely, the right to life which is D
. the foundation of all other fundamental rights, The right to life
stands on a higher footing than even personal liberty, because per-
sonal liberty too postulates a sentient human being who can enjoy
it.• Where therefore a law authorises d'privation of the right to life .
the reasonableness,"fairness.and justness of the procedu}e prescribed
by it for such deprivation JI\USt . be established by the State. Such · E
a law would be 'suspect' in the eyes of the court just as certain kinds
of classification are regarded as 'suspect' in the United States· of
America. Throwing the burden of.proof of reasonableness, fairness
and justness on the State in such a case is a homage which the
Constitution . and the courts must pay to the right to life. It is
significant to point out that-even in case of State action depriviOg a F
person of his personal liberty, this Court has always cast the burden
of proving the validity 'or such action on·the State, when it has been
cpallenged on behalf of the person deprived of his •P.ersonplJiberty.
-It has been consistently held by this Court t_hat when detention -of'a
·. person is challenged in a habeas corpus petition, the burden of pro-
ving the legality of th_e detention always rests on the State. and it is G
for the State to justify the legality of the detention. This .Court has
shown the most zealous regard for personal liberty. and treated even
letters addressed by prisoners and det_enus as writ petiti9ns and
taken action upon them aiid called upon the State to show how the
. detention is justifitd. If this be the anxiety and concer~ shown by H
296 . SUPltllMll cotrltT 'RllPOltTS [198-3] I S.C.R.

A the court for pel'llonal liberty, how much more should be the judicial
anxiety and concern for the right to life which indisputably stands
on a higher ·pedestal. Moreover, as already pointed out above, the
international standard or norm set by the United Nations is in
favour of abolition of death penalty and that_ is the ultimate objec-
tive towards which the world body is moving.· The trend of our
B national legislation is also towards abolition and it is only in·
exceptional cases for special reasons that death sentence is permitted
to be given. There can be no doubt that even under our national
legislation death penalty is. looked upon with great disfavour. The
drastic nature of death penalty involving as it does the possibility of
error resulting in judicial murder of an innocent man as also its
c brutality in inflicting excruciating mental anguish severe psychological
strain and agonising physical pain and suffering on the condemned
. prisoner are strong circumstances which must compel the State to jus-
tify imposition of.death penalty. The burden must lie upon the State
show that death penalty is not arbitrary and unreasonable and serves
a legitimate social purpose, despite the possibility of judicial error
D in convicting and sentencing an innocent man and the brutality and
pain, mental as well as physical, which· death sentence invariably
inflicts upon the condemned. prisoner. The State must place the
necessary material on record for the purpose of discharging this
burden which lies upon it and if it fails to show by presenting ade-
quate evidence before the court or.otherwise that death.penalty is not
E arbitrary and unreasonable and does serve a legitimate social pur-
pose, the imposition of death penalty under section 302 of the Indian
Penal Code read with section 354 sub-section (3) of the Code of
Criminal Procedure would have to be struck down as violative of the
protection of Article 21.
F
So far as the question of burden of proof in a case involving
challenge under Article 14 is concerned, I must concede that the . .\.
decisions in Ram Krishan Dalmia's case (supra) and Mohd. Hannif '\/
Qureshi1 s case (supra) and several other subsequent decisions of the '
Court have clearly laid down that there is a presumption in favour
G of constitutionality of a statute and the burden of showing that it is
arbitrary or discriminary lies upon the petitioner, because it must
be presumed "that the legislatur.e understands and correctly appre:
ciates the needs of its own people, that its laws are directed to
problems made manifest by experience and that its discriminations
H are based on adequate grounds." Sarkaria, J. has pointed out in
the majority judgment that underlying this presumption of constitu-
llACHAN SINGJI v. PUNJAB (Bhagwati, J.)' 291

a
tionality "iS' the rationale of judicial restraint, recognition of the .
limits of judicial review, a respect for the boundaries of legislative
and judiciaf fµnctions and the judicial responsibility to guard the
tresspass from one side or the other." The learned Judge with a
belief firmly rooted in the tenets of mechanical jurisprudence, has
taken the view that "the primary function of the Courts is to inter- B
pret and apply the- laws according to the will of those who made
them and not to transgress into !]le legislative domain of policy
making." Now there can be no doubt that in adjudicating upon
the constitutional validity or a statute, the Judge should show
deference to the legislative judgment and should not be anxious to
strike it down as invalid. He does owe to the legislature a margin c
of tolerance and he must constantly bear in mind that he is not the
legislator nor is the court a representative body. But I do not agree
with Sarkari_a, J. when he seems to suggest that the judicial role is,
as it was for Francis Bacon, '}us dicere and not jus ·dare; to inter-
pret law and not 'to make law or giye law.' 'The function of the
Court undoubtedly is to · interpret the law but the interpretative D
process is highly creative function and in' this process, the Judge, as
pointed out by Justice Holmes, does and must legislate. Lord Reid
ridiculed as 'a fairytale' the theory that in some Aladdin's cave is
hidden the key to correct judicial interpretation of the law's demands
and even Lord Diplock acknowledged that "The court may describe
what it is doing in tax appeals as interpretation. So did the pries- E
tess of the Delphic Oracle. But whoever has final authority to
explain what Parliament meant by the words that i! used, makes law
·as if the explanation it has given were contained in a new Act of
Parliament. It will .need a new Act of Parliament to reverse it."
Unfortunately we are so much obsessed with the simplicities of
judicial formalism which presents the judicial role as jus dicere, .that, F
\_ as pointed out by David Pannick in his "Judicial Review of the
---( a
Death Penalty", "we have, to substantial extent, ignored the Judge
J i11 administering the judicial process. So heavy a preoccupation we
have made with the law, its discovery and its agents who play no
creative role, that we have paid little, if any, regard to the appoint-
ment, training, qualities, demeanour and performance of the indivi-
G
duals selected to act as the mouth of the legal oracle.'' It is now
acknow Iedged by leading jurists all over the world that judges are
not descusitized and passionless instruments which weigh on inani-
mate,and impartial scales "Of legal judgment, the evide,nce and the
H
arguments presented on each side of the case. They are not political
298 SUPRBME COURT REl>ORTS [1983] 1 s.c.a.

A and moral enuchs able and willing to avoid impregnating the law
with their own ·ideas and judgment. The judicial exercise in co~s
titutional adjudication is bound to be influenced, consciously or
subconsciouly, by the social philosophy and scale of values of those
..
who· sit in judgment. However, i agree with Sarkaria, J. that
ordinarily the judicial function must be characterised by deference
B to legislative judgment because the legislature represents the voice of
th.e people and it might be dangero11s for the court to trespass into
the sphere demarcated by the Constitution for the legislature unless
the legislative judgment suffers from a constitutional infirmity; It is
a trite saying that the Court has "neither force nor will but merely
judgment" and in the exercise of this judgment, it would be a wise •
c rule to adopt to presume the constitutionality of a statute unless it
i;
is shown io be invalid. But even here it necessary fo point out
that this rule is not a rigid inexorable rule applicable at all times
and in all situations. There 111ay conceivably be cases where having
regard to the nature and character of the legislation, the importance
of the right affected and the gravity the injury caused. by it and the
D moral and social issues involved in.the determination, the court may
refuse to proceed on the basis of presumption of constitutionality
·and demand from the State justifi.cati•>n of the legislation with a view
to establishing that it is not arbitrary or discriminatory. There are
times when commitment to the values of the Constitution and per-
formance of the constitutional role as guardian of fundamental rights
E demands dismissal of the usual judicial deference to legislative
judgment. The death penalty, of which the constitutionality is
assailed in the present writ petitions, is a fuo'damental issue to which
ordinary standards of judicial review are Inappropriate. The ques-
tion here is one of the most fundamental which has arisen under
F the Constitution, namely, whether the State is entitled to take the •
life of a citizen under cover of judicial authority. It is a question
so vital to the identity and culture of the society and so.appropriate
for judicial statement of the standards of a civilised commtinity-
often because of legislative apathy~that "passivity and activism
become platitudes through which judicial articulation of moral and
social values provides a light to guide an uncertain community."
G The same reasons which have weighed witli me in holding that the
burden must lie on the State'to prove that the death penalty.provid-
ed under section 302 of the Indian Pima! Code read with secHon 354
sub-section (3) of the Code of Criminal Procedure is not arbitrary
· and unreasonable and serves a legitin:iate penological purpose where
H
l!ACllAN SINGll v. PUNJAB (Bhagwati, J.) 299

A
tbe challenge is under Article 21 must apply equally to cast the
'burdeu of the proof upo~ the State ~here the challenge is under -
Article· 14.

Now it is an essential element of the rule of_law that the
sentence imposed must be proportionate to the offence. If a law
B
provides for imposition of a sentence which is disproportionate to
the offence, ii would be arbitrary and irratiom1l, for it would not
pass the test of reason and would be contrary to the. rule of law and ·
void under Articles 14, 19 and 21. The principle of proportionality
• is implicit in these three Articles of the Constitution, If, for example,
death penalty was prescribed for the simple offence of theft'-as indeed c
it was at one time in the seventeenth century England-it would be
cl~arly ex~essive and wholly disproportionate to the offence and
hence arbitrary and irrational by any standards of human decency
and it would be impossible to sustain it against the challenge_ of
these three Articles of the Constitution. It must therefore be taken
• -!
to be clear beyond doubt thai the proportionality principle constitu- D
-tes an important constitutional criterion for adjudging the validity of
a sentence imposed by law.

The Courts in the United States have also recognised the
validity of the proportionality principle. In, Gregg v. Goergia (')
Stewart, J. speaking for the plurality of the American Supreme Court E
said that "to satisfy constitutional requirements, the punishment
must not be excessive ... ~ .. the punishment must not be ou1 of pro-
portion to the severity of the _crime. This con·stitutional criterion·
was also applied in Co_ker v. Georgia(') to invalidate the death
penalty for rape of an adult woman. WhHe, J. with whom Stewarts
and Blackmon, JJ. agreed, said, with regard to the offence of rape
F
---/ committed against an adult woman : "a sentence of death is.grossly
l disproportionate and excessive punishment for-the' crime of rape and
- I is therefore forbidden by tlie Eighth Amenctment as cruel and un-
usual punishment".· Likewise in Lockette v. Ohio(') where the
defendant sat outside the scene of robbery waiting to drive h~r
G
accomplices away and -contrary to plan, th11- robbers murdered three
victims in the course of iheir robbery and sh~ was convicted and
sentenced to death by reso_rt to the doctrine of vic.arious Uabili_ty,

(I) 428 us 153. H
(2) 433 us 584.
(3) 438 us 586.
~00 SUl>REME COIJRT REPORtS [1983] I s.c.R.

A the Supreme Court of the United States applying the same principle
of proportionality held the death sentence unconstitutional. Mar;hail,
J, pointed out that because the appellant ·was convicted under a
'theory of vicarious liability, the death penalty imposed ~n her
"violates· the principle of proportionality em bodied in the Eighth
Amendment's prohibition" and White J. also subscribed to the same
B reasoning when be said, "the infliction of death upon those who
bad no intent to bring about the death of the victim is ..... grossly
out of proportion to the. severity of the crime". Of course, the
Supreme Court of the United States relied upon_the Eighth Amend-
ment which prohibits cruel and unusual treatm~nt or punishment
and we have no such express prohibition in our Constitution, but
c this Court has held in Francis Mullen's case (supra) that protection
against torture' or cruel and inhuman treatment cir punishment is
implicit in the guarantee of Article 21 and therefore even on the
basic of the reasoning in these three American decisions, the prillciple
of proportionallty would have relevance under our Constitution.
But, quite apart from thi_s, it is clear and we need not reiterate· what
D . we have already said earlier, that the principle of proportionality
flows directly as a necessary element from Articles 14, 19 and 21 of
the Con.stitution. We find that in Canada too, in the case of Rex
v. Miller.' and Cockriel/(') the principle of proportionality has been
recognised by Laskin C.J. speaking on behalf of Canadian Supreme
Court as "one of the constitutional criteria of 'cruel and unusual
E treatment or punishment' prohited 'under the Canadian Bill of Rights.
Laskin C.J. pointed out in that case "It would be patent to me, for
c,
example, that death as a mandatory penalty today for theft would be
offensive to s. 2(b). That is because there are ~ocial and moral _con-
siderations that enter into the scope and application of section 2(b). -
F Harshness of punishment and its severity in consequences are rela-
tive to the offence involved but, that being said, there may still be
a question (to which history too may be called in aid of its resolu-
tion) whether. the punishment prescribed is so excessive as to out_rage
standards of decency. That is ·not a precise formula for s. 2(b) but
I doubt whether a more precise one can be found." Similarly, as
G pointed out by Mr. David Pannick in bis book on "Judicial Review
of the Death Penalty" international charters of rights. express or
imply the principle of proportionality. Article 7 of the International
Covenant on Civil and . Political Rights forbids torture and cruel

H (!) 70 DLR (Jd) 324.
BACHAN SINGH v. PUNJAB (Bhagwati, J.) . 301
'
inhuman t>r degrading treatment or punishment and so does Article
A
3 of the European Convention on Human. Rights. It has been
suggested: by Francis Jacobs, a commentator on the European Con-
vention that "among the factors to be considered in deciding whether_
tho death penalty, in particular circumstances, was contrary to
Article 3, would be whether it was aisproportionate to the
B
offence.

It is necessary to point out at this stage that death penalty
cannot be said to be proportionate to .the offence merely because it
• . may be or is believed to be an effective deterrent against the com-
mission of the offence. In Coker v. Georgia (supra) the Supreme
Court of the United States held that capital punishment is dispropor-
tionate to rape "even though it may mea1Urably serve the legitimate
ends of punishment and -therefore is nofinvalid for its failure to do
so." The absence of any rational purpose to the punishment inflic-
ted is a separate ground for attacking its constitutionality. Tlie
existence of a rational legislative purp,ose for imposing. the sentence
D
of death is a necessary ·condition of its constitutionality but not a
sufficient one. The death penalty for theft would, for· example,
deter most potential thieves and may have a unique deterrent effect
in preventing the 'commission of the offence; still it would be wholly
disproportionate and excessive, for the social effect of the ·penalty
is not decisjve of the proportionality to the offence. The European
Court of Human Rig\lts also observed in Tyrer v. United King-
dom (1 ) that "a punishment does not lose its degrading character
just because it is believed to be, or actually is, an effective deterrent
- or aid lo crime . control. Above all, as the court must emphasize,
it is never' permissible to have recourse to punishments whice are
contrary to Article 3, whatever their deterrent effect may be." The F
i utilitarian value of the punishment has nothing to do with its pro-
-(. . portionality to the offence. It would therefore be no answer in the
_present case for the· respondents to say that death penalty ·bas a
·unique deterrent effect in preventing the crime of murder and there-
~ore it is proportionate to the offence. The prop~rtionality between·
the offence and death penalty has to be judged by reference . to G
objective factors such as international standards or norfus or the
climate of international opinion, modern peoological iheories and
evolving standards of.human decency. I have already pointed out
and I need not repeat that the international standard or norm which
H
0) 2 E. H.R.R.I. (1978).
302 SUPREME COURT REPORTS [1983} l s.c.a.

A . is being evolved by the United Nations is against death penaity and
so is the climate of opinion in most of the civilized countries of the
world. I will presently show that penological goals_ also do not
justify the imposition ·of death penalty for the offence of murder.
The prevailing standards of human decency are also incompatible·
with death penalty. The standards of human decency with re(eren~e
B to which the proportionality of the punishment to the offence is-
required to be judged vary from societ'y to society depending on the
cultu!al and spiritual tradition of the society, its history and philoso-
phy and its sense of moral and ethical values. To take an example,
if a sentence of cutting off the arm for the offence of theft or a
'
sentence of stoning to death for the offence of adultery were prescri-
c bed by law, there can be no doul>t that such punishment would be
condemned as barbaric and cruel in our country, even thougn it may
:_--r
be regarded as proportionate to the offence and hence reasonable I
and just in some other ·countries.. So also _the sfandards of human
decency_vary from time to time even within the same society. In an
D evolutionary society, the standards of human decency are progres-
sively evolving to higher levels and what was regarded as legitimate
and reasonable punishment proportionate to the offence at one time
may now acpording to the envolving stan·dards of human decency,
be regarded as barbaric and inhuman punishment wholly dispropor-
tionate to the offence. Therl! was a time when in the United King-
E dom a sentence of death for the offence of theft or shop lifting was
regarded as proportionate to the offence and therefore quite legiti-
/ mate and reasonable according to the stand-ards of human decency
then prevailing, but today such punishment would be regarded as
totally disproportionate to the offence and hence arbitrary and
unreasonable: . The question, therefore, is whether having regard to
- F the intern~tional standard or norm set by the United Nations in
favour of abolition of death penalty, the climate of opinion against
death penalty _in many civilized countries of the world and the
prevailing standards of human decency, a· senlence of death for
the offence of murder can be regarded as satisfying the test of pro-
portionality and hence reasonable and just. I ii?ay make it clear ·
_G that the question to which I am add-ressing myself is only in regard
"to the pr~portionalityot death sentence to the offence of murder
and nothing that I say here may be taken as an expression of opinion
on the question whether a sentence of death can be said to be pro-
portionate to the offence of treason or any other olfence involving
- JI the security of the State,
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 303

Now in order to determine what are the prevailing standards
.A
of human decency, one cannot ignore the curtural, ethos and spiritual
tradition of the country. To quote the words of Krishna Iyer, J. in
·Rajendra Prasad's case "The value.s of a nation and ethos of a
generation mould concepts of crime and punishment. So viewed,
the lode-star. of penal policy today, shining through the finer culture B
of former centuries, strengthens the plea against death penalty ... The
Indian cultural current also counts and so does our spiritual
chemistry, based on divinity in everyone, catalys_ed by the Buddha-

.. Gaildbi compassion. ·Many hu\Dane movements' and sublime souls
have cultured the higher -consciousness of mankind." __In this land
of Buddha and· Gandhi, where from times immemorial, since over
5000 years.ago, every human being .is tegarded as embodiment of
c
Brahman and where it is a firm conviction based not only on faith
but also on ~xperience that "every saint'has a past and every sinner·
a future", the standards of human decency set by our ancient culture
and nourished by our constitutional values and spiritual norms
frown upon impo'sition of death penalty for the offence of murder. D
It is indisputable that the Constitution of a nation reflects its culture .
. and ethos and gives expression to its sense of moral arid ethical
values. It afford~ the surest indication of the standards of human
decency cherished by the people and sets out the socio-cultural
objectives· and goals towards which the nation aspires to move. ·
.There can be no better index of the ideals and aspirations of a nation E
than its Consiitution. When we turn 'to our Constitution, we find
that it is a humane. document which .respects the dignity of the
individual and the worth of the human person and directs every
organ of the State to strive for the fullest developme.nt of th~ per-
sonality of every individual. Undoubtedly, as already pointed· out
above, our Constitution does contemplate death' penalty, and at the
F
time when the Constitution came to be enacted. death .penalty for
the offence of murder was on the statute b_ook, but the entire thrust
of the Constitution is in the directi.on df deve_lopment of the full
·potential of every citizen and the right to life alongwith. basic human
G
dignity is highly prized· and cherished and torture and cruel or in-
buma,n treatment or punishment which would be dcgradi~g and
destructive of human dignity are constitutionally forbidden. More-

- over, ap·art from the humanistic quintessence of the Constitution,
the thoughts, deeds ?Dd words of the great men of this country
provide the clearest indication of the prevailing standar<!s of human
u
,.

304 SUPREME COURT REPORTS [1983 I I S.C.R.

A decency. They represent the conscience of the nation and are the
most. authentic spok~smen of its culture and ethos. Mahatma
Gandhi, the Father of the Nation wrote Jong ago in the Harijan.
"God alone can take, life because He alone gives it. He also said
and this I may be permit~d to emphasize even at the cost of repeti-
tion : "Destruction of individ~als can never be a virtuous act. The
B evil doers cannot be done to death ... Therefore all crimes including
murder will have to be treated as a disease." I have also quoted
above what Jai Prakash Natain said in his message to the Delhi
Conference against Death Penalty. The' same humanistic approach
we find in the utterances of Vinoba Bhave. His approach to the •
problem of dacoits in Chambal Valley and the manner in which be
c brought about their surrender through soulforce bear eloquent testi-
mony to the futility of death penalty and shows \!ow even dacoits
who have committed countless murders can be reclaimed by the
society. But. the more important point is that this action of Vinoba
Bhave was applauded by the whole nation and Dr. Rajendra Prasad
who was then the President. of India, sent the folJowing telegram to
D Vinoba Bhave when he came to know that about 20 dacoits from
the Chambal region had responded 'to the Saint's appeal to surren-
der:

"The ·whole nation looks with hope and admiration
E upon the manner in which you have been able to rouse the
better instincts and moral .sense, and thereby inspire faith
in dacoi_ts which has led to their voluntary surrender. Your
efforts, to . most of us, come as a refreshing proof of the
efficacy of the moral approach for reforming the misguided
·and drawing the best out of them. I can only pray for the
F complete success of your mission· and offer you my regards
and best wishes."

These words coming from the President of India who is the Head of
the nation reflect not -only his own admiration for the manner
in· which Vinoba Bhave redeemed the dacoits but also the admira-
G tion of the entire nation and tr.at shows that what Vinoba Bhave
did, had the approval of the people of the country and the standards·
of human decency prevailing amongst the people commended an
approach favouring reformation and rehabilitation of tl)e dacoits
rather than their conviction for the various offences of murder come
H milted by them and the imposition of death penalty on them. More-
over, it is difficult to see bow death penalty can be regarded as pro'
BACHAN SINGH v. PUNJAB (Bhagwatl, J,) 305

portionate to the offence of murder when legisiatively it has been
A
ordained that life sentence shall be the rule and it is only in. excep-
tional cases for special reasons that death penalty may be imposed.
it is obvious from the provision enacted in section 354(3) of the
Code of Criminal Procedure that death sentence is legislatively
regarded as disproportionate and ·excessive in most cases of murder
and it is only in exceptional cases wha( Sarkaria, J. speaking on
8
behalf of the majority, describes as "the rarest of rare" cases, that it
can at all be contended that death sentence is proportionate to the
offence of murder. But, then the legislature does nofindicate as to
•. what are those exceptional cases in which death sentence may be
regarded as proportionate to the offence and, therefore, reasonable
0
and just. Merely because a murder is heinous or horrifying,_ it
· cannot be said tha.t death penalty is proportionate to the offence
when it is not so for a simple murder. How does it become pro·
portionate IQ the offence merely because it is a 'murder most foul'~
I fail to appreciate how it should make any difference to the penalty
a
whether the murder is simple .murder or a brutal o 0e. A murder ls a D
murder all the same whether it is carried out quickly and inoffensively
J or in a gory and gruesome manner. If death penalty is not propor-
tionate to the offence in the former case, it is difficult to see how it
can be so. in the latter. I may usefully quote in thffi connectiOI! the
words of Krishna Iyer, J. in Rajendra Prasad's case where the learned
· Judge said ; E

"Speaking illustratively, is shocking crime, without
more, good to justify the lethal verdict ? Most murders are
horrifying, and an adjective adds but sentiment, not argu,
-. ment. The personal story of an actor in a shocking murder,
if considered, may bring tears and soften the sentence. He
might have been'a tortured child, an ill-treated orphan, a
jobless starveling, a badgered brother, a w'ounded son, a
tragic person hardened by societal. cruelty or vengeful justice,
/
even a Hemlet or Parasurama.· He might ·have been an-
angelic boy but thrown , into mafia company or iilducted
. into dopes and drugs by parental neglect or morally-ment-
G
ally retarde<,l or disordered. Imagine a harijan village
hacked out of existence by the genocidal fu~y of a kulak
group and one survivor, days later, cutting to pieces the
villain· of the earlier outrage. Is the court in error in reckon·
ing the prior provqc~tive barb~rity a& ll sentencing factor 1
306 SUPREME COURT REP OR TS [1983] 1 s.c.11

A Another facet. May be, the convict's poverty had
disabled his presentation of the social milieu or ·other cir-
cumstances of extenuation in defence ..... When life is at
stake, can such frolics of fortune play with ·judicial
verdicts?

B "The nature of the crime:___too terrible to contemplate
has often been regarded a traditional peg on which to hang
a death penalty. Even Ediga Anamma (supra) has harden-
ed here. But 'murder most foul' is not the test, speaking
scientifically. The doer may be a patriot, a revolutionary, a
weak victim of an overpowering passion who, given better .
c environment, may be a good citizen, a good administrator,
a good husband, a great saint. What was Valmiki once ?
And that sublime spiritual star, Shri Aurobindo tried once --f.
for murder but by history's fortune acquitted."

I agree with these observations of the learned Judge which clearly
D show that death penalty cannot be regarded as proportionate to the
Qffence of murder, merely because the murder is brutal, heinous or
shocking. The nature and magnitude of the offence or the motive
and purposes underlying it or the man~er and extent of.its commis-
sion cannot have any relevance to the proportionality of death
penalty to the offence. It may be argued that though these factors
E may not of themselves be relevant, they may go to show that the
murderer is such.a social monster,, a psychopath, that he cannot be
reformed and he should thereforn be regarded as human refuse, · ·
dangerous to society, and deserving .to be hanged and in such a case
death penalty may legitimately be regarded as proportionate to the
offence. But I do not think thi> is a valid argument. It is for
F reasons which I shall presently state, wholly untenable and it bas
dangerous implications. I do not think it is possible to bold that
death penalty is, in any circumstances, proportionate to the offence
of murder. Moreover, when death penalty does not serve any
legitimate social purpose, and this is a proportion which I shall
proceed to establish in the succeeding paragraphs, infliction of
G
mental and physical pain and suffering on the condemned prisoner
by sentencing him to death penalty cannot but be regarded as cruel
and inhuman and therefore arbitrary and unreasonable.

H J will now examine whether death penalty for the offence of
murder serves any lellitilt!ate social purpose. There are three justi·
r
BACHAN SINGH' v. PUNIAB (Bhagwati, J.) 307

A
fications traditionally advanced in support of punishment in general,
._ namely, (I) reformation; (2) denunciation by the community or
retribution and (3) deterrence. These are the three ends of punish·
ment, its three penological goals,. with reference to which any
punishmen_t prescribed by law must be justified. If it cannot be
justified with reference to one or the other of these three penological B
purposes, it would have to be ~ondemned as arbitrary and irrational,
. for in a civilised society governed by the rule of law, no punishment
can be inflicted on an individual unless it serves some social purpose .
./
It is a condition of legality of a punishment that it sh·ould serve a ·
rational legislative purpose or in other words, it should have a
l
r
measurable social effect. Let us therefore examine whether death
~ pen~lty for the offence of murder serves any , legitimate and of
c
~ punishment. · ' . ·
It would be convenient first to examine the examine the cons-
tutionality of death penalty with reference to the reform t9ry end
of punishment. The civilised goal of criminal justice is the reforma- D
tion of the criminal and .death penalty means abandonment of this
goal for those wh.o suffer it. Obviously death penalty cannot serve
t be reformatory goal because it extinguishes life and puts an end
to any possibility of reforma tion. In fact, it defeats the
reformatory 'end of punishment. But the al)swer given by the
'"' protagonists of death penalty to this argument is that though there E
may 'be a few murderers whom it may be possible to reform 1and
rehabilitate, what about those killers who cannot be reformed
and rehabilitated ? Why should the death penalty be not awarded
to them ? But even in their cases, I am afraid, the argument cannot
lilt. be sustained. There is no way of accurately predicting or knowing
F
, with any degree of moral certainty that a murderer will not be
reformed or is incapable of reformation. All we know is that there
l have been many many successes even with the most vicious of cases.
Was Jean Valjean of Les Miserbles not reformed by the kindness
and magnanimity of the Bishop? Was Valmik.i a sinner not
reformed and did be not become the author of one of the G
world's greatest epics ? ·were the dacoits of Chambal not trans-
formed- by the saintliness of Vinoba Bbave and Jai Prakash Narain ?
We, have also the examples of Naihan Leopold, Paul Crump and
Edger Smith who, were guilty of the most terrible and gruesome
murders but who, having escaped the gallows, became decent and
productive human beings. These <!l!Q 11111nr 01l!~r examples ~!early
•
308 SUPREME COURT REPORTS [1983] I S.C.R.

A show that it is not possible to know before hand with any degree
of cartainty that a murderer is beyond reforination. Then would it
be right to extinguish the life of a human being merely on the basis
of speculation-and it can only be speculation and not any defini-
tive inference-that he cannot be reformed. Ther.e is divinity in
every man and to my mind no one is beyond redemption. It was ·
8 Ramakrishna Paramhansa, one.of ihe greatest saints of the last cen-
tury, who said, "Each soul is potentially divine". There is Brahman
in ev.ery li~ing being, ;i<f "'1: 'l:<i ;rc>f, as the Upanishad says and
to the same effect we find a remarkable utterance in the Brahmasukta >
of Atharvaveda where a sage exdaims : . "Indeed these killers are
Brahman; these servants (or slaves) are Brahman; these cheats and ·
c rogues are also manifestation of one and the same Brahman itself."
Therefore once the dross of Tamas is removed and satva is
brought. forth by methods of rehabilitation such as community
service, yoga, · meditation and sat sang or holy influence,
a_change definitely takes place and the man is reformed. This
is not just a fancy or i_dea!ised view taken by Indian philoso-
D phical th.ought, but it also finds support from the report of the Royal
Commission on Capital Punishment set up in the United Kingdom
where it has been said : "Not that murderers in general are incapa-
ble of reformation, the evidence plainly shows the contrary. Indeed,
as we shall see later" (in paragraphs 651-652) "the experience of
· countries without capital punishment indicates that the prospects of
E
· reformation are at least as favourable with murderers as with those
who have committed other kinds of serious crimes." The hope of
. · reforming· even the worst killer is based on exeperience as well as
faith and to legitimate the death penalty even in the so called excep-
tional cases where a killer is said to be beyond reformation, would
be to destroy this hope by sacdficing it at the altar of superstition •
F
and irrationality. I would not therefore, "speaking for myself, be · "l
inclined to recognise any exception, though Justice Krishna Iyer
has done so in Rojendra Prosad's case, that death panalty may be
legally' permissible where it is found that a killer is such a monster
or beast that he can never be reformed.· Moreover, it may be noted,
G as point,d out by Albert Camus, that in resorting to this philosophy
of elimination of social monsters, we would be approaching some
of the worst ideas of totalitarianism.or the selective racism which
the Hitlet regime prnpounded. Sir Ernest Gowers, Chairman of the
Royal Cornmi5'ion on Capital Punishment also emphasized the
H disturbing implications of this argument favouring elimination of
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 309

a killer who is a social monster and uttered the following. warning A
"If it is right to eliminate .useless and .dangerous members of the
community why should the accident of having committed a capital
offence determine who should be selected. These are only a tiny
proportion and not necessarily the m~st ,dangerous..... It can"· lead
to Nazism." This theory that a killer who is believed to be a social
monster o; beast should ·be eliminated in defence or' the society B
cannot therefore be accepted and it cannot provide a justification
for imposition of death penaity even in this narrow class of
•. cases .

I will now turn to examine the constiutional validity of death c
penalty with reference to the second goal of punishment, namely,
denunciation by the community or retribution. The argument which
is sometimes advanced in support uf the death penalty is that every
punishment is to some 'exetent intended to express the revulsion felt
by the society against the wrong doer and. the punishment must,
therefore, be commensurate with the crime and since m\uder is one D
of the gravest crimes against society, deatli penalty is the only
punishment which fits such crime and hence it must be held to be .
reasonable. This argument is founded on the denunciatory theory'·
of punishment which apparently claiming to justify punishment, as
the expression of tlie moral indignation of. the society against the
wrong doer, represents in truth and reality an attempt to legitimise E
the feeling of revenge entertained by the society against him. The
denunciatory theory was put forward. as· an argument. in favour· of
death, penalty by Lord Denning before the Royal Commission on
Capital Punishment :

"The punishment inflicted for grave crimes should - F
adequately reflect the revulsion felt by the great majority
of citizens for them. It.is a mistake to consider the objects
of punishment as being deterrent or reformative or preven-
tive and nothing else. The ultimate justification of any punish-
ment is not that it is a deterrent but that it is the emphatic
denunciation by the community of a crime, and from this G
point of view there are some murders which in the present
state of opinion demand the most emphatic denunciation
of all, namely, the death penalty ..'.The truth is that some
crimes are so outrageous that it,· irrespective of whether it
is a 4eterrent or not." H
•
310 sUPllbMB COURT REPORTS (J98~) I s.c.a.

A The Royal Commission on Capital Punishment seem~d to agree with
Lord Denning's view about this justification for the death penalty
and observed." ..... the law cannot ignore the public demand for
retribution which heinous crimes undoubtedly provoke; it would be
generally agreed that, though reform of the criminal law ought
sometimes, to give a lead to public opinion, it is dangerous to move
B too far in advance of it." Though garbed in highly euphemistic
language by labelling the sentiment underlying this observation as
reprobation and not revenge, its implication can hardly be dis·
guised that the death penalty is considered necessary not because
the preservation of the society demands it, but because the society
c wishes to avenge itself for the wrong done to it.· Despite its high
. moral tone and phrase, the de.nunciatory theory js nothing but an
echo of what Stephen said in rather strong language : "The
criminal law stands to the passion of revenge in much the same
relation as marriage to the sexual appetite." The denunci~tory
.theory is a. remnant of a prim:itive society which has no respect for
D the dignity of man and the worth of the human person and seeks to
assuage its injured conscience by taking revenge· on the wrong
doer. Revenge is an elementary passion of a brute and betrays
lack of culture and refinement. The manner in which a society
treats crime and criminals affords the surest index of its cultural
growth and development. Long ago in the year 1910 Sir Winston
Churchill gave expression to·this social truth when he said in his
E inimitable language :

"The mood and temper of the public with regad to the·
treatment of crime and the criminals is one of the most un-
failing tests of civilization of any country. A calm dispas-
F sionate recognition of the right of accused, and even of
the convicted, crimiQal against the.State, a constant he.art-
searching by all charged with the duty of punishment ..... .
tireless efforts towards the discovery of curative and
r·egenerative processes, unfailing faith that there is a trea-
sure if you can only find it in the heart of every man-these
are the symbols, which, in treatment of crime 11nd the
'G criminals, mark and measure the stored·up strength of a
nation and are sign and proof of the living virtue
in it."

H A society which· is truly cultured-a society which· is reared on a
spiritual foundation like the Indian society-can never harbour a
bACHAN SINOU v. PUNJAB (Bhagwatl, J.) 311

feeling of re,venge against a wrong doer. On the contrary, it .would A
try to reclaim the wrong doer and find . the treasure that is in his
heart. The wrong doer is a$ much as part of the society as anyone
else and· by exterminating him, would the society not injure itself?
If a limb of the human.body becomes diseased, should we not . try
to . cure it instead of amputating it? Would the human body not
, be partially disabled : would it not be rendered imperfect by the 8
amputation ? Would the amputation not leave a scar on the human
body? Would the human body not cease to be what it was
intended by its maker? But if the diseased limb can be cured,
would it not be so mµch bet~er that the human body remains intact
in all its perfection. Similarly tf\e society also wo~ld benefit if one
of its members who has gone astray and done some wrong can be c
reformed and regenerated. It will strengthen the fabric of the
society and increase its inner strength and vitality: Let it not be
forgotten that no human being is beyond redemption. There
.. is divinity in every human being, if only we can create
conditions in which it can blossom forth in its full glory
· and effulgence. It can dissolve the dross of criminality
D
and m'ake God out of man. "Each soul", said Shri Ramakrishna
Pararnhansa, "is potentially divine" and it should be the endeavour
of the society to reclaim the. wrong doer and bring out the divinity
in him and not to destroy him in a fit of anger or revenge. Retaliai-
.J,. tion can have no place 'in a civilised society and particularly in the E
land of Buddha and Gandhi. The law of Jesus must prevail ovc.sr the
lex tallionis of Moses, "Thou shalt not kill" must .penolOgically over-
power "eye for an eye and tooth for a tooth." The society has
made tremendous advance in the last few decades and today the '-
cionc~pt of human rights has taken firm root in"our soil and there
is a tremendous wave of consciousness in regard to the dignity and F
divinity of man. To t~ke human life even with the sanction of the
law and under the cover of judicial authority, is retributive barba-
rity and violent futility : travesty of dignity and violation of the
divinity of man. So long as the offender can be reformed through
the rehabilitatory therapy which mify be administered to him in
, the prisoo or other correctional inst_itute and he can be reclaime~ G
as a useful citizen and m.ade conscious of the divinity within him by
techniques such as meditation, how can there be any moral justfi-
cation for liquidating him out of existence ? In such a case, .it would
be most unreasonable and arbitrary to extinguish the flame of life
within llim, for no social purpose would- be served ancl uo consti- H
312 SUPRHMI! COURT REPORTS {1983) 1 S.C.R.

A tutional value advanced by doing so. I have already pointed out that
death penalty runs counter to the reformatory theory of punish-
ment and I shall presently discuss· the deterrent . aspect of death
penalty and show· that death penalty bas not greater deterrent
effect than life imprisonment. The only ground' on which the death
penalty may therefore be sought to be justified is reprobation which
B · as already pointed out, is nothing but a different name for revenge
an·d retaliation. But in a civilised society which believes
in the dignity and worth of the human person, which acknow-
ledges and protects the . right to life as the most .precious posses-
sion of makind, which recognises the divinity in man and describes
bis kind as~'!~~ ~~T: that is,. "children of Immortality", it is
a difficult to appreciate now retaliatory motivation can ever be coun-
tenanced as a justificatory reason. This reason is wholly inadequate
since it does not justify punishment by its results, but it merely satis-
fies the passion for revenge masquerading as rightousness.

D I may point that in holding this view I _am not alone, for I find
that most philosophers have rejected retribution as · a proper goal
of punishment. Plato wrote :

"He who desires to inflict rational punishment does
E not retaliate for a past wrong which cannot be undone; he
has regard to the future, an.d is desitous that the man who
is punished, and he who· sees him punished, may -be
deterred from doing wrong again. He punishes for the
sake of prevention .... "

Even in contemporary America, it is firmly settled that retribution
has no proper place in our criminal system. The New York Court
·of Appeals pointed out in a leading judgmen~ m People v.
Oliver( 1 ):

"The punishment or treatment of offenders is directed
a · toward OQe or more of three ends : (1) to discourage and
act as a deterrent upon future criminal activity. (2) to
confine the offenper so that he may not· ha~m society; and
(3) ~o correct and. rehabilitate the offender. There is no ,
H
(1) N.Y. 2dd. 152.
BACitAN SiNGil 11. PUNJAB (1Jhagwati, J.)

place in the scheme for punishment for its ·own sake, the -A
pt~duct simply of vengeance or retribution:"
' '
.Similarly, the California Supreme Court has held that .~'to conclude
that the Legislature was· motivated by a desire _ for vengeance''.'_
would be "a conclusion not permitted in view of modern theories of
penology." ·

.
The same view has. been adopted in. official studies of capital
punishment. The British Royal Commission on Capital Punishment
concluded that ,"'modern penological thought discounts retribution in
tbe sense of vengeance. "The Florida Special Commission on capital
' punishment, which r~~mmended retention of the death pen_alty c
on other grounds, - rejected " vengeance ·or retaliation" as justifica-
tion for the official t,aking of life." ·

The reason for the genetal rejection of retribution as a pur-
pose of the criminal system has b~en stated concisely by Professors ·
Michael and Wechsler : D
"Since punishment 'consists in the infliction of pain it
is, apart from its consequence, an evil : c<:msequently it is ·
good and therefore just .only if and to the degree that it
s~rves the common good by advancing the 'wclfar~ of the
person punished or of the rest of the population_:_Retribu·
-- E
tion is itself unjust since it requires some human beings to
inflict pain upon others , regardless of its effect upon them
or upon the social welfare." .

·The -P!ime Minister of Canada, Mr. Pierre ' Trudeaux, addressing the
Cana e:an Parliament, pleading for abolition of death penalty, posed
F
a .question in the same strain :

· "Are we as a society so lacking in respect for our--
selves, so lacking in hope for human betterment, so ~socially
bankrupt that we are ready to accept state vengeance as our G
penal philosophy" · -- - .

It is difficult to appreciate how a feeling of vengeance whether on
'the individual wronged or the society can ever ·be regarded :as - a
healthy sentiment whicl;i _the State should foster. It is true that when H
'
is
a heinous offence committed not only the individual who suffers
.
314 SUPREME COURT REPORTS [1983] l s.c.R.

A as a result of the crime but the entire society is oppressed with a
feeling ofrevulsion, but as Arthur Koestler has put it in his inimit· 7

able style in his "Reflections on Hanging" :

"Though easy to dismiss ·in reasoned argument on
B .both moral and logical grounds, the desire for vengeance
has deep, unconscious roots and is roused when we feel
strong indignation or revulsion-whether the reasoning
mind approves or not. This psychological fact is largely
ignored in abolitionist propaganda-yet it has to ·be '
accepted as a fact. The admission that even co~~rmed
c abolitionists are not proof against occasional vindictive
impulses does .not mean that such impulses should be
legally sanctioned by society, any more_ than we sanction
some other unpalatable instincts of our biological inhcri.
lance.. Deep inside every civilized being there lurks a tiny
Stone Age ma:n, dangling a club to robe and rape, and
D· screaming an eye for an eye. But we would' rather not
have that little fur-clad figure dictate the law of the
land."

I have no doubt in my mind that if the only justification for the
death penalty is to be found in revenge and retaliation, it would
E be clearly arbitrary and unreasonable punishment falling foul of
Articles 14 and 21.

I must then turn to consider the deterrent effect of death
penalty, for deterrence is undoubtedly an important goal of punish-
ment.

The common justification which has been put forward. on
behalf of the protagonists in support of capital punishment is that
.jt acts as a deterrent against potential murderers. This is, to my
• mind, a myth, which has been ''arefuily nurtured by a society
G which is actuated not so much by logic or reason as by a sense of
retribution. It is really the.belief in retributive justice that makes
the death penalty attractive but those supporting it are not inclined
to confess to· their instinct for retribution but they try to holster with
reasons their ·unwillingness to abandon this retributive instinct and
H seek to justify the death penalty by attributing to it a deterrent
effect. The question whether the death penalty has really and truly
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 315

a deterrent effect is an important iss_ue which has received careful A
attention over the last 4o. years in several countries including the
+ United States ofAmeric~. Probably no single subject in crimino-
logy hr.s been studied more. Obviously, no penalty will deter all ·
murders and probably any severe penalty will deter many. The key
question therefore is not whether death penalty has .a deterrent
effect but whether death penalty has a greater deterrent effect than 8
life sentence. Does death penalty deter potential murderers better
than life imprisonment ? . I shall pr~sently consider this question but
before I do so let me repeat that the burden of showing _that death
penalty is not arbitrary and unreasonable and serves a legitimate
penological goal is on the State. I have aiready given my reasons
for taking this view on principle but I find that the same view has c
also been taken by the Supreme Judicial Court of Massachusettes in
"Commonwealth v. O'Neal (No. 2)(1 ) where it ·has been hel<i that
because death penalty impinges on the · right to life itself,
the onus lies on the State to show a compelling State interest to
justify capital punishment and since in that case the State was unable
D
to satisfy this onus, the Court ruled that death pe!lalty ,for murder
commi tied in the course of rape or attempted rape was unconsti-
tutional. The Supreme Judicial Court of Massachusttes also•
reiterated the same view in Opinion °of the Justices 364 N.E. 2d 184
while giving its opinion whether a Bill before the House of Repre-
sentatives was compatible with Article 26 of the Constituiion which E
prohibits cruel or unusual punishment. The majority Judges stated
that ArtiCle 26 "forbids the imposition of a death penalty in this
Commonwealth in the absence of a showing on the part of the Com-
monwealth that the availability of that penalty contributes more to
the achievement of a legitimate State purpose-for example, the
purpose of deterring criminal conduct than the availability in like
cases of the p.enalty of life imprisonment." It is therefore clear
that the bnrden rests on the State to establish by producing material
• before the Court or otherwise, that death .penalty has greater
deterrent effect than life sent~.nce in order to justify its imposition
under the law. If the State .fails to discharge this burden which
rests upon. it, the Court would have to hold that -death penalty has G
not been shown to have greater deterrent effect and it does n.ot ·
therefore serve a rational legislative purpose,
_,

(I) 339 NE 2d. 676. H
316 SUPREME COURT .REPORTS [1983] I S.C.R.
A The historical course tbtough which death penalty has passed
in the last 150 years_ shows that the theory that death penalty acts
as a greater deterrent than life imprisonment is wholly unfounded.
Not more than a century and a half ago, in a civilised country like
England, death penalty was awardable even for offences like shop-
lifting, cattle stealing and cutting down· of trees. It is inieresting to
B note that when Sir Samuel Romully brought proposals for abolition
of death penalty for such offences, there was a hue and cry from
lawyers, judges, Parliamentarians and other so .called protectors of
social order and they opposed the . proposals on the grounds that
death penalty acted as a deterrent against commission of such
offences and if this deterrent was removed, the consequences would
c be disastrous. The Chief Justice said while opposing abolition of
capital punishment for shop-lifting :

"Where terror of death which now, as the law stood,
threatened the depredatoi' to be removed, it was his opinion
D the consequence would be that shops would be liable to
unavoidable losses from depredations and, in many
instances, bankruptcy and ruin must become the lot of
honest and laborious tradesmen. After all that had been
said in favour of this speculative humanity, they must all
agree that the prevention of c:rime should be the chief
E object of the law; and terror alo.ne would prevent the com-
mission of that crime under their consideration."

and on a similar Bill, the Lord Chancellor remarked : ·

F "So long as humati nature remained what it was, the
apprehension of death would have_ the most powerful co-
operation in deterring from the commission of crimes ;
and· he thought it unwise to withdraw the saluiary influence
of that terror."
G
The Bill for abolition of death penalty for cutting down a tree was
)
opposed by the Lord Chancellor in these terms:

"It did undoubtedly.seem a hardship that so heavy a
H punishment as that of death should be affixed to the cutting.
down of a single tree, or the killing or wounding of a cow.
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 317

_But if the Bill passed in its present state a person might
root up or cut down whole acres of plantations pr destroy
+
the whole of the stock of cattle of a farmer without being
subject to capital punishment."

Six times the House of Commons passed the Bill to abolish capital
punishment for shop lifting and six times the House of Lords threw.
·out the Bill; the majority of one o..:casion including all the judicial
members, one Arch Bishop and six Bishops_ It was firmly believed
by these opponents of abolition that death penalty acted as a d.eter-
rent and if it was abolished, offences of shop-lifting etc· would in-
crease. But it is a matter of common knowle'dge that this belief was
·wholly unjustified and the abolition of deaih penalty did not have
c
any adverse effect on the incidence of such offences. So also it is
with death penalty for the offence 'of murder. It is an irrational
belief unsubstantiated by any factual data or empirical research
•-. that death penalty acts as a greater deterrent than life sentence and
equally ·unfounded .is the impression that the removal of D
death penalty will re~ult in increase of homicide. The argument
that the rate of homicide ·will increase if death penalty. is
removed f~om the statute book has always been advanced by the
established_ order out of fear psychosis, because the established
.order bas a.ways been apprehensive that if there is any change and
. ;. death penalty is abolished, its ·existence would be .imperilled. This E
argument has in my opinion no validity because, beyond a supersti-
tious belief for which there is no foundation in fact and which is
based solely on unreason and fear, there is nothing at all to show
that death penalty has any additionally deterrent effect not posses-
sed by life sentence. Arther Koestler tells us an interesting story
that in the period when pick-pockets were punished by banging in F-
England, other thieves exercised their talents in the crowds sorround-
ing the.scaffold where the· convi~ted pick-pocket was being banged.
Statistics compiled during the last 50 years in England show that
out of 250 men hanged, 170 had p(eviously attended one or even
two public executions and yet they were not __deterred from commit-
ting the offence of murder which· ultimately led to their conviction G
and hanging. It is a myth nurtured by superstition and fear that
death penalty has some special terror for the criminal which acts as
a deterrent against the commission of the crime. Even an eminent
Judge like justice Fr~nk Furler of the Supreme Court of the UJlited.
:>tates expressed the same opinion when he said in the course of bis H
318 SUPREME COUR1 REPORTS [1983] 1 s.c.R.

examination before the Royal Commission on Capital Punish·
ment :·
.,
/ "I think scientifically the claim of deterrence is not
worth much."

B The Royal Commission on Capital Punishment, after four years of
investigation which took it throughout the continent and even to the
United States, also came to the same conclusion: ·

"Whether the death penalty is used oi not and whether
executions are frequent or not, both death penalty states
C and abolition siates show rates which suggests that these
rates are conditioned by other factors than the death
penalty."

and then again, it observed in support of this conclusion : ·'
D "The general conclusion which we have reached is that
there is no clear evidence in any of the figures we have
examined that tbs abolition of capital punishment has led
to an increasing homicide rate or that its reintroduction
has led to a fall."

E Several studies have been carried out in the United States of America
for the purpose of exploring the deterrent effect of death penalty and
two different methods have been adopted. Thefirst and by far the __
more important method seeks to prove the case of the abolitionists
by showing that the abolition of capital punishment in other coun-
tries has not Jed to an increase in the incidence of homicide. This is
F attempted to be shown either by comparing the homicide statistics
of countries where capital punishment has been abolished with the
statistics for the same period of countries where it has been retained
or by comparing statistics of a single country in which capital
punishment has been .abolished, for periods before and after aboli-
tion or where capital punishment has been reintroduced, then for
G. the period before and after its reintroduction. The second method
relates to comparison of the number of executions in a country in
parficular years with the homicide rate in the years succeeding. Now,
so far as the comparison' of homicide. statistics of countries which
have abolished capital punishment with the statistics of countries
H which have retained it, is concerned, it may not yield any definitive
inference, because in most cases abolition or retention of death
BACHAN SINGH v PUNJAB (Bhagwati, J.) 319

penally may not be the only differentiating factor but there may be A
other divergent social, cultural or economic faciors which may affect
+ the homicide rates. It is only if all other factors are equal and the
only variable is the existence or non-existence of death penalty that
a proper comparison can be .made for the purpose ·of determining·
whether death penalty has an additional deterrent effect which life
B
sentence does not possess, but that would be an almost impossible
controlled experiment. It may however be possible to find for com. '
parison a small group of countries or Siates, preferably contiguous
and closely similar in composition of population and social and
economic conditions generally, in some of which capital punishment
has been abolished and in others not. Comparison of homicide
rates in these countries or States may afford a fairly reliable indica-
.c
tion whether death. penalty· has a unique deterrent effect greater than
that of life sente11ce. Such groups of State~ have been identified by
Professor Sellin in rhe United Sjates of America and similar.condi-
•• tions perhaps exist also in Newzealand and the Australian States .
T;he figures of homicide rate in these States do not show any higher D
incidence of ·homicide io States which. have abolished death penalty
than in those which have not. Professor Sellin points out that the
only conclusion which can l:>e drawn from these figures is that there
is no clear evideoce of any influence of death penalty on the homi·
cide rates of these States. In one of the best known studies
conducted by him, Professor Sellin compared homicide rates between E
1920 and 1963 in abolition States with the rates in neighbouring and
similar retention States. He found that on the basis of the rates
.
' to identify the abolition States within each
alone, it was impossible
group. A similar study comparing homicide rates in States recently
abolishing the death penalty and neighbouring retention States
during the 1960's reached the same results. Michigan was the first F
State in the United States to abolish capital punishment and com·
parisons between Michigan and the bordering reten.tion states of
Ohio and Indiana States with comparable demographic cbaracteris·
·tics did not show any significant differences in homicide rates·:
Professor Sellin therefore. concluded : '·'You cannot tell from ..... the
homicide rates alone, in contiguous, which are· abolition· and which G
are retention states; this indicates that capital crimes are dependent
upon factors other than. the mode of punishment."

Students of capital punishment have also studied the effect of H
abolition and reintroduction of death penalty upon tlie homicide

/
. 3.20 SUPRBMB COURT REPORTS [1983) I S.C.R.
A rate in a single state. If death penalty has a significant deterrent
effect, abolition. should produce a rise in homicides apart from the
general trend and reintroduction should produce a decline. After
examini~g statistics from 11 states, Professor Sellin concluded that
"there is no ·evidence that the abolition of capital punishment
generally causes an increase in criminal homicides, or that its re-
B . introduction is followed by a 'de:cline; The explanation of phanges
in .homicide rates must be sough( elsewhere."·

Some criminologists have also examined the short term deter-
rent effects of capital punishment. One study compared the number
of homicides during short periods beforeand after several well-
c publicized executions during the twenties and thirties in Philadelphia.
It was found that there were significantly more homicides in the
period after the executions than before-the opposite of what the
deterrence theory would suggest other studies have also shown that
in those localities where capital punishment is carried out, the inci-
dence of homicide does not show any decline in the period immedia-
D tely following well-publicized executions when, if death penalty had
any special deterrent effect, such effect would be greatest. Some-
times, as Bowers'points out in his book on "Executions in America"
the incidence of homicide is higher. In short, there is no corelation
between the ups and downs of the homicide rate on the one
hand and the presence or absence of the death penalty on the
E
other. . .
I may also refer to numerous other studies made by jurists and
sociologists in regard to the deterrent effect of death penalty Barring
only one study made by Ehrlich to which I shall presently refer, all
the other studies are almost unanimous that death penalty has no
F greater deterrent effect than life imprisonment. Dogan D. l<kman,
a Canadian Criminologist, in a study·made by him on thebasis of
data obtained from the records of all Canadian penitentiaries for the
years 1964 and 1965 observed that the threat of capital punishment
has little influence on potential assaulters. So also on the basi,s of
comparison of homicide and execution rates between Queensland
G
·and other Australian States for the period 1860-1920, Barber and
Wilson concluded that the suspension of capital punishment from
1915 and its aboHtion from 1922 in Queensland did not have any
significant effect on the murder rate. Chambliss, another Crimino-
logist, also reached the same conclusion in ):iis Article on "Types of
H
Deviance .and the Effectiveness of Legal Sanctions" (1967) Wisconsin
BACHAN SINOR v, PUNJAB (Bhagwati, J.) ' 32L

Law Review 703 namely, that "given the preponderance of evi- A
dence, it seems safe to conclude that capital punishment does not act
·of· as an effective deterrent to murder." Then we have the opinion of
Fred J. Cook 'who says in his Article on "Capital Punishment :
Does it Prevent Crime ?" that "abolition of the death penalty may
actually reduce rather than encourage murder!' The European
Committee on Crime Problems of the Council of Eur6pe gave its
opinion on the basis of data obtafoed from var\ous countries who
are Members of the Council of Europe that these data did not give
any "positive indication regarding the value of· capital punishment
as a d~terrent''. I do not wish to· burden this judgment with refer-
• ence to all the studies which have been conducted at different times in
different parts of the world but I may refer to a few of them, namely I
"Capital Punishment as a Deterrent to Crime in Georgia" by Frank \
Gibson, "The Death Penalty ·in Washington·State" by Hayner and
Crannor, Report of the Massachusett Special Col)lmissi6ti Relative
., to the Abolition of the .Death Penalty in Capital Cases, "The use· of
the Death Penalty-Factual Statement" by Walter C Reckless, "Why
was Capital Punishment resorted in Delaware" by Glenn W. Samuel-
D
son, "A Study in Capital Punishment" by Leonard 0. Savitz, '.'The
• Deterrent Influence of the Death Penalty" by Karl F. Schuessler,
"Murder and the Death Penalty" by E.H. ·Sutherland, "Capital
Punishment : A case for Abolition" by · Tidmarsh, Halloran and
Connolly, "Can the I)eath Penalty, Prevent Crime" by George B.
Vold and "Findings on Detterence with Regard to Homicide" by
E
Wilkens and Feyerherm. Those studies, one and. all, have taken the
view that "statistical findings and case studies converge to disprove
the claim that the death penalty has any special deterrent value" and
that death penalty "fails as a deterrent measure", Arthur Koestler
also observes in his book on "Reflections" on 'Hanging" that the
F
figures obtained by him from varions jurisdictions which have
abolished capital punishment showed a decline in the homicide rate
follq,wing abolition. The Report made by the Department of Eco-
nomic and Social Affairs of the United Nations also reaches, the
conclusion' that "!he information assembled confirms the now gener-
-· ally held opinion that the abolition or...suspension of death penalty G
does not have the immediate effect of appreciably increasing the
incidence of crime," These various studies to which I have referred
· clearly establish beyond doubt that death penalty does not have any
special deterrent effect which life sentence does not posses and that
all
in any event there is no evidence at to sugg.~~l t11,11t death penalty
has any such special deterrent effect.

I
322 SUPREME COURT REPORTS [1983) I $.C.R.
A There is unfortunately ~o empirical study ~ade in India to
1
assess, howsoever inJPerfectly, the d;oterrent effect of death penalty.'
But we have the statistics of th~'6rime of murder in ,the former
States of Travancore and Co'.fJ1in . during the period when the capital .
punishment was on the statute· book as also during the 'period when
it was kept in abeyance. These figures have been taken by me from
8 the Introduction of Shri Mohan, Kumar Mangalam to the b,ook
entitled "Can, the State Kill its Citizen" brought out by Shri
Subramaniam :

Statistics of murder cases during the period when Capi-
tal Punishment'was kept in abeyance. •
c
Year Travancore Cochin Total for Travan-
core & Cochin
1945 111 cases 22 133

1946 135 cases 13 148
D
1947 148 cases 26 174
1948 160 cases 43 203
1949 114 cases 26 140
E 1950 125 cases 39 164

Total 793 169 962

Staiistics of murder cases during the period when capi-
F tal punishment was in vogue ..

1951 141 cases 47 1,88
1952 133 cases 32 165
1953 146 c.ases 54 200
G
1954 . · 114 cases 57 ',171
1955 99 cases 30 129
•
1956 97 cases 17 114
-,--,
Total 730 237 967
. BACHAN SINGH v. PUNJAB (Bhagwati, J.) 323

These figures show that the incidence of the crime murder did not A
increase at all during the period of six yea(S when the capital
punishment was in abeyance. This is in line with the experience of
other countries where death penalty has been abolished. '

I must at this stage refer to the study carried out by Ehrlich
on. which the strongest reliance has b~en placed by Sarkaria, J. in
B
t)te majority judgment. Ehrlich was the first to introduce regres-
sion analysis in an effort to isolate the death penalty effect, if it .
.Y should exist, uncontaminated by other inf!uen~es on the capital
crime rate. flis paper was catapulated into the centr.e of legal atten-
tion even before it was published, when the Solicitor General of the
United States cited it in laudatory terms in his brief in Fowler 'v. c
North Cero/ina(') and delivered copies of it to the court. The Solici-
tor General called .jt an "important·empirical support for the a
priori logical belief. that use of the death pen,alty decrease the num-
ber of murders." In view of the evidence available upto that time,
Ehrlich'.s claim was indeed formidable both, in substance and preci-
sion. The conclusion he reached was: "an additional execution per
year ... may have resulted in, •. seven or. eight fewer murders." 'the
basic data from which he derived this conclusion were the execu-
tions arid the homicide rates as recorded in the United States during
the years 1933 to 1969, the former generally decreasing, the latter,
.. 'especially during the sixties, sharp,ly hcreasing. Ehrlich considered -E
simultaneously with the execution and homicide rates, other varia- '
bles that could affect the capital crlme rate and sought t\> isolate the
effect of these variables through the process of regression analysis.
It is not necessary for the purpose of the present judgmel)t to explain
this process of mathematical purific~tion· or the vatious technical
·refinements of this process, bnt it is sufficient to point out that the F
conclusion reached by Ehrlich was that death penalty had a greater
deterrent effect than thefeat of life impr.isonment. Ehrlich's study
because it went against all the hitherto available evidence, received
extra ordinary attention from the scholarly community.

/
First, Peter Passell and ·John Taylor attempted to replicate G
Ehrlich's findings and found th!lt they stood scrutiny only under an
unusually res.trictive set pf circumstances. · They found, for example
that I tlie appearance of det<;rreiice
. . is prod~~ed
. only
. when

H
(I) 96 S. Ct. 3212 (1976],
I •1•

/
324 SUPREME COURT REPORTS (1983] l S.C.R.

A the regression equation is in logarathmic form and in the more
conve!ltional linear regression frame work, the deterrent effect
disappeared. They also found that no such effect emerged when
data for the years afJer 1962 m:re omitted from the analysis and
only the years 1953-61 (were considered. Kenneth Avio of the
University of Victoria made an effort to replicate Ehrlich's findings
B from Canadian experience hut that effort also failed and the conclu-
sion reached by the learned jurist was that "the evidence would
appear to indicate that Canadian offenders over the period 1926-60
did not behave in a manner consistent with an effective deterrent
effect of capital punishment." William Bowers and Glenn Pierce
also made an attempt to replicate Ehrlich's results and in replicating
c Ehrlich's work they confirmed the Passel-Taylor findings that
Ehrlich's re~ults were extremely 1sensitive as to whether the logarith-
mic specification was used and whetljer the data for the latter part
of 1960's were included. During 1975 the Yale Law Journal publi-
shed a series of Articles reviewing the evidence on the deterrent
effect of death penalty and in the: course of an Article in this series,
D
Ehrlich defended his work by addressing him.self to some of the
criticism raised against his study. Hans Zeise!, Professor Emeritus
of Law and Sociology in the University of Chicago points out in his
article on The deterrent effect of death penaliy; Facts v. Faith that in
this article contributed by him to the Yale Law Journal, Ehrlich did
E refute some criticisms but the crucial ones were not met. Ehrllch
ir this Article referred to a second study made by him, basing it this
time on a comparison by States for the years 1940 and 1950. He
c_laimed that this study bolstered his original thesis but conceded
that his findings were "tentative and inconclusive". In the mean
time Passell made a State-by-State comparison for the years 1950
and 1960 and as a result of his findings, conclsded that "we know/
pf no reasonabl,e way of interpretting the cross sections (i.e. State-by
State) data that would lend support to the detetrence hypothesis."

A particularly extensive review of Ehrlich's time . series
analysis was made by a 'team Jed by Lawrence Klein, Pre~ident of
the American Economic Association. The authors found serious
G
methodologjcal problems with Ehrlich's analysis, They,raised ques-
tions about his failure to consider the feedback effect of crime on
the economic variables in his model, although he did consider other
feedback effects in bis analysis. They found some of Ehrlich's
H technical manipulations to be superfluous and tending to obscure
• the accuracy of his estimates. They, too, raised questions about
BACllAN SINGH v. PUNJAB (Bhagwati, J.) 325

variables omitted from the arlalysis, and the effects of these omis-
A
sions on the findings. ,

Like Passell,Taylor and Bowers-Pierce, Klein, and bis collabo-
rators replicated .Ehrlich's results, using Ehrlich's own data which
by that time he ha.d i;nade available. As in P.revious replications,
Ehrlich's results were found to be quite sensitive to the mathemati-
B
. cal specification of the model and the inclusion of data at tlie recent
end of the time series .
•
By this· time, Ehrlich's model had ·been demonstrated to be
peculiar enough. Klein went on to reveal further difficulties .. One
was that Ehrlich's deterrence finding disappeared after the introduc-
c
tion qf a variable reflecting the factors that caused1other crimes to
increase during the latter part of the period of analysis. The inclu- '
. sion of such a variable would seem obligatory not only to substitute
for the factors that had obviously IJ'een omitted but also.to account
for interactions between the crime rate al)d the demographic charac-
teristics of the population.
D

Klein 'also f~und Ehrlich's results 1to be affected by an unusual
construction of the execution rate variable, the central determinant
of the analysis, Ehrlich constructed this variable by using three
other variables that appeared elsewh~re in his regression niodel : the
E
estimated homicide arrest rate the estimated homicide conviction
rate, and. the estimated number ,of homicides. Klein showed
\
that with this construction of the execution rate, a very small error
in the estimates of any of these three variables produced unusually
strong spurious appearances of a deterrent effect. He went on to
show that the combined effect of such slight errors in all three F
variables was likely to be considerable, and that in view of all these
considerations, Ehrlich's estimates of the deterrent effect were so
weak that they "could be regarded as evidence ...... (of) a counter
deterrent effect of capital puniBhmeht." In view of. these serious
problems with 'Ehrlich's analysis, Klein concluded : "We see tcio
many plausible explanations for his finding a deterrent effect other G
than the theory that capital punishment deters murder" and further
oboerved : "Ehrlich0s results cannot be used at this. time to pass
judgment. on the use of. the death penalty.'' ~

This is the analysis of the subsequent studies of Passell and H
Taylor, Bowers and Pierce and Klein and his collegues made by Hans
326 SUPREME COURT REPORTS [1983] I s.c.R.

A Zeise! in his Article on "The deter.rent effect of the Death Penalty :
Facts v. Faith". These studies which were definitely more scientific
:and refined than Ehrlich's demolish to a large extent the validity of
the conclusion reached by Ehrlich and establish that death penalty
does not possess an additional deterrent effect which life sentence
does not. But, according to Hans Zeise!, the final blow to the work
B of Ehrlich came·from a study of Brian Forst, one of.Klein's colla-
borators on the earlier study. Since it had been firmly established
that the Ehrlich phenomenon, if it existed emerged from develop-
ments during the sixties, Forst concentrated on that decade. He
found a rigorous way of investigating whether the ending of execu-
tions and the sharp increase in homicides during this period was
casual or conincidental. The power of Forst's study derives from
bis having analysed changes both over time and across jurisdictions.
The aggregate United· States time series data Ehrlich used were
nnable to capture important regional differences. Moreover, they
did not vary as much as cross-state observati9ns; hence they did not
D provide as rich an opportunity to infer the effect of changes in
executions on homicides. Forst's analysis, according to Hans
Zeise!, was superior to Ehrlich's and it led to a conclusion that went
beyond that of Klein. "The findings" observed Forst "give no
support to the hypothesis that capital punishment deters homicide;'
and added : "Our finding !Mt capital punishment does not deter
E homicide is remarkably robust with respect to a lvide range of alter-
native constructions.'' It will · thus be seen that the validity of
Ehrlich's study which has been relied upon very strongly by Sarkaria
. J. in the majority judgment i.s considerably erode_d by the ~tudies
carried out by leading criminologists such as Passe]] and Taylor,
Bowers and Pierce, Klein and his collegues and Forst and with the
·F greatest respect, I do not think that Sarkaria, J. speaking on behalf
\ of the majority was right in .placing reliance on that study. The
validity, design and findings of that study have been thoroughly
discredited by the subsequent studies made by these _other econo-
metricians and particularly by the very scientific and careful study
carried out by Forst. I may point out that apart from Ehrlich's
G study there is not one published econometric analysis which supports
·Ehrlich's results.

.
I may also· at this stage refer once again to the opinion express-
H· ed by Professor· Sellin. The learned Professor after a serious and
thorough study of the entire subject in the United States on behalf
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 327

of the American Law Institute stated. his conclusion in these terms : A
+
°'Any one who carefully examines the above data is
bound to arrive at the conclusion that the death penalty as
we use it exercises no influence on the extent or fluctuating
rate of capital crime. ft hds failed as afdet~r~ent. ·
· I B
, (~mphasis supplied.)
1
!'

So also in another part of the wotld very close to our country, a
Commission of Inquiry on capital punishment was appointed by late
Prime Minister Bhandarnaike of Shri Lanka and it reported :
J
c
"If the experience of the many· countries )Vhich have
·Suspended or abolished capital punishment is taken info
account, there is in our view cogent evidence of the unlike·
lihood of this 'hidden protection' ... It is, therefore, our view
that the statistics of homicide in Ceylon when related to
the social changes since the s~spension of the death penalty D
in Ceylon and when related to the experience of other
countries tend to disprove the assumption of the uniquely
deterrent effect of the death penalty, . and that in deciding
on the question. of reintroduction or abolition of the capital
punishment reintroduction - cannot be justified on the argu-
ment that it is a more effective deterrent tc potentia.l killers
E
ti\lan the alternative or protracted imprisonment."

It is a strange irony of fate· that Prime Minister Bhandarnaike who
suspended the death. penalty in ·sri Lanka was himself murdered by
a fanatic and in the panic that ensued death penalty was reintroduc· .F
ed in Sri Lanka. ,

The evidence on whether the threat of death penalty has a
deterrent effect beyond the threat of life sentence is ther.efpre over·
whelmingly on one side. Whatever be the measurement yardstick G
adopted and howsoever·sharpened may be the analytical instruments
they have not been able to discover any special deterrent effect.
. Ev.en regression analysis, the· mdst sophisticated of these instruments ,
after careful application by the scholarly community, has failed to
detect special deterrent effeet in death penalty which· is not to be fl
J found in life imprisonment. One answer which the protagonists of
328 SUPREMB COURT REPORtS . (1983) 1 S.C.R.
A C!fpital punishment try to offer to combat the inference arising from
these studies is that one cannot ·prove that capital punishment does
not deter murder because people who are deterred by it do not report
good news to their police departments. They argue that there are
potential murderers in our midst who would be deterred from killing
by the death penalty, but would not be deterred by life imprison-
B ment and there is no possible way of knowing about them since
these persons do not commit ·murder and hence are not identified .
•
Or to use the words of Sarkaria, J. "Statistics of deterred potential
murderers are difficult to unravel as they remain hidden in the
innermost r~cesses of their mind." But this argument is plainly ,
unsound and cannot be sustained. It is like saying, for example, ·
0 that we have no way of knowing about traffic safety because
motorists do not report when they are saved from accidents by
. traffic safety programmes or devices. That however cannot stop us
from evaluating,the effectiveness of those programmes and devices
by studying their effect on the acci~ent rates where they are used
for a rensonable time. Why, use a different standard for.evaluating
.D
the death penalty, especially when we can measure its effectiveness
· by comparing homicide rates between countries with similar social
and economic conditions in some of which capital punishment has
been abolished and in others not or homicide rates in the same
country where death penalty has been abolished· or subsequently
E reintroduced. There is no doubt that if ·death penalty has a special
deterrent effect not possessed by life imprisonment, the number of
/ those deterred by capital punishment would appear statistically in
the homicide rates of abolitionist jurisdictions but according to all
the evidence gathered by different studies made by jurists and
criminologists, this is just not to be found.
F
The majority speaking through Sarkaria, J, has observed that
"in most ~f the countries of the world including India, a very large
segment of the population in~luding noteable penologists, Judges,
jurists, legislators and other enlightened people believe that death
penalty for murder and certain other capital offences does serve as a
G deterrent and a greater deterrent than life imprisonment." I do not
think this statement represents the correct factual position. It is of
·course true that there are some penofogists, judges, jurists, legislators
and other people who believe that death penalty acts as a greater
deterrent but it would not be correct to say that they form a large
H segment of the population. The enlightened opinion in the world~
BACHAN SINGH v. PUNJAB (Bhagwati, J.)

A
as pointed out by me, is definitely veering round in favour of
abolition of death penalty. Moreover, it is not a rational convic-
tion but merely an unreasoned belief which is· entertained by some
people including a few penologists, judges, jurists and legisi'ators
that death penalty has a uniquely det~rrent effect; When you ask
these persons as to what is the reason why they entertain this belief, B
they will not be able to give any convincing answer beyond stating that
basically every human being dreads death and therefore death would
naturally act as a greater deterrent than life imprisonme.nt. That is
the same argument advanced by Sir James Fitz James Stephen, the
drafts;,,an of the Indian Penal Code! is support of the deterrent
effect of capital punishment. That great Judge and author said in
his .Essay on Capital Punishment:
c
"No other punishment deters men so effectually from
committing crimes as the punishment of death. This is
one of those. propositions which it is difficult to prove
simply because they are in themselves more obvious than D
any proof can make them. It is possible to display
ingenuity in arguing against it, but that is all. The whole
experience of mankind is in the other direction. The threat ·
of instant death is the one to which resort has always been
made when .there was an absolute necessity of producing
some results ...... No one goes to certain inevitable death E
except by compulsion. Put the matter the other way, was
there ever yet a ciriminal who when sentenced to death and
brought out to die would refuse the offer of a commutation
of a sentence for a severest secondary punishment ? Surely
not. Why is this ? It can only be because 'all that a man
has'will be given for his life'. In any secondary punishment,
F
however terrible, there is hope; but death is death; its terrors
cannot be described more forcibly."

The Law Commission in its thirty-fifth report also relied largely on
this argument for taking the view that "capital punishment does act G
as a deterrent." It set out . tbe main points that weighed with it in
arriving at this conclusion and the first and· foremost amongst them
was that : "Basically every human being dreads death", suggesting
that death penalty has therefore a greater deterrent effect than any
other punishment. But this argument is . not valid and a little· . H
scrutiny will reveal that it is wholly unfounded. In the first place,
330 SUPREME COURT REPORTS [1983] I S.C.R.

even Sir James Fitz James Stephen concedes that the proposition
that death penalty has a uniquely deterrent effect not possessed by
any oth~r punishment, is one which is difficult to prove, though
according to him it. is self-evident. Secondly, there is a great
fallacy underlying the argument of Sir James Stephen and the Law
Cop:imission. This argument makes no distinction between a threat
B of 9ertain and ·imminent punishment which face.s the convicted
mutderer and the threat of a different problematic punishment
which may or may not influence a. potential murderer. Murder
may be unpremeditated under the sfress of some' sudden outburst of
emotion or it may be· premeditated after planning· and delibera-
tion. ·Where the murder is unpremeditated, as for example, where it
c is the 01;tcome of a sudden argument or quarrel or provocation
leading to uncontrollable anger or' tempc.rary imbalance, of the
mind-and most murders fall within this category-any thought ·of
possibility of punishment is obliterated by deep emotional distur-
bance and the penalty_of'death can no more deter than any ,other
· penalty. Where murder is premeditated it may either be the result
D of'lust, passion, jeal_ousy hatred frenzy of frustration or it may be a
cold calculated murder for monetary or other consideration. The,
former category of murder would conclude any possibility of
deliberation or a weighing of consequences; the thought of the likeli-
hood of execution after capture, trial and sentence would hardly
enter the mind of the killer. So far as the latter category of murder
is concerned, several considerations make it unlikely that the death
penalty would play any significant part in his thought. Since both
the penalties for murder, death as well as life sentence,· are so severe
as to destroy the future of any one subjected to them, the crime
would not be committed by a rational man unless he thinks that
there is little chance of detection. What would weigh with him
F in such a case is the uncertainty of of detection and. conse-
quent punishment rather than the nature of punishment. It is not the
harshness or severity of death penalty which acts as a deterrent. A
life sentence of twenty years would act as an equally strong deterrent
against crime as death penalty, provided . the killer feels that the
G crime would not go unpunished. More ·than the severity of the
sentence, it ls the certainty ·of detection and punishm,ent that acts
as a deterrent. The Advisory Council on the Treatment of
Offenders appointed by the Government of Great Britain stated in
its report in !960 "We were impressed by the, argument that the
H g1eatest deterrent' to crime is not the fear of punishment but the
BACJIAN SINGH v. PUNJA11 (Bhagwati, J.) 331

A
' certainty of detecti9n." Professor Hart emphasized the same point,
t- refuting the argument of Sir James· Fitz James· Stephen in these
words:

"This (Stephen's) estimate of fhe paramount place in
human motivation of the fear of death reads impressively B
but surely contains a .suggestio falsi and once this is
detected its cogency as an' argument in favour of the ,death .
penalty for murder vanishes for there is really no parallel
J
between the situation .of a convicted murderer over the
alternative oflife imprisonment in the shadow of the gallows •
and the situation of the murderer contemplating his crime.
The certainty of death is one thing, perhaps for normal
c
people nothing c~n be compared witb, it. But the existence ·
of the' death penalty does not mean for the murderer cer- .
tainty.of death now. It means not very high .Probability
of death in ·the future. And; futurity and uncertainty,
\ the hope of an escape, rational or irrational, vastly dimini- D
shes the difference between death. and impr,isonment as
deterrent and may diminish to vanishing point...The way
. I in which the convicted murderer may view the immediate
prospect of the gallows after he has been caught must be
a poor guide to the effect of this prospect upon him when'
he is contemplating committing his 'crime." , • E

It is also a circumstance of no Jess significance bearing on the ques-
. \ion of d.eterrent effect of death pemllty, that, even after detection
and arrest, the likelih9od of execution for the murderer is almost ,
nil. In the first place, the machinery of investigation of offences
,being what it i• and the criminal law of our country having a tilt F
in favour of the accused, the killer and look forward to a chance of
acquittal at the trial. Secondly, even if the trial results in a convic-
, tion, it would not, in all probability, be foll~wed by a . senience o.f
death. Whatever may have 1been the position prior to the enact-
ment of the Code of Crimi~al Procedure, 1973, it is now clear that
under section 354 sub-section (3), life sentence is the rule and it is
only in exceptional cases for special reasons that death sentence
·' may be awarded. The entire drift of the legislation is against inflic-
tion of death penalty and the courts are most reluctaµt to imp-0se it
save in the. rarest of rare cases. It is interesting to n~te that in the last
H.
2 years, almost every case where death penalty is confirmed by the
High Q;>urt bas come up before this Court by way of petition for
I. ,
332 SUPREME COURT REPoRTS [1983) l S.C.R.
A spe~ial leave, and, barring the cwie. of Ranga and Billa, I do not
thin:k there is a single case in which death penalty has been affirmed
by this Court. There have been numerous cases where even after
· special leave petitions against sentence of death were dismissed,
review petitions have been entertained and death sentence commuted
by this Court. Then there is also the· clemency power of the
B President under Article_ 72 and of the Governor under Article 161 of
the Constitution and in exercise of this power, death sentence bas been
commuted by the President or the Governor, as the case may be,
in a number·of cases. The chances of imposition of death sentence
following upon a conviction for the offence of murder are therefore
extremely slender. This is also evident from the figures supplied to
c us by the Government of India for the years 1974 to 1978 pursuant
16 the inquiry made by us. During the course of. the hearing, we
called upon the Government of India to furnish us statistical informa-
tion in regard to following three matters, namely, (i) the number of
cases in which and the nut'nber of persons on whom death sentence
was imposed and whose death sentence was confirmed by various
D High Conrts in India; (ii) the number of cases in which death
sentence was executed in the various States and the· various
Union Territories; and (iii) the number of cases in which
death sentence was commuted by the . President of India under
Article 72 or by the Governors under Article 161 of the
E Constitution. The statistical information sought by us was
supplied by the Government of India and our attention was also
drawn to the figures showing the total number of offences of murder
committed inter alia during the years 1974·77. These figures showed
that on an average about l7,000 offences of murder were committed

-~
in India every year during the period 1974 to 1977, and if we calcu-
F late on the basis of this average, the total number of offences of
murder during the period of' five years from 1974 to 1978 would
come to about 85,000. Now, according to the statistical informa-
tion supplied ·by .the . Government of India, out of these approxima-
tely 85,000 case of murder, there were only 288 in which death /
sentence was imp<;>sed by the sessions court and confirmed by the
G High Courts and out cif them, in 12 cases death sentence was com-
muted by the President and in 40 cases, by the Governors and death
sentence was executed in only 29. cases .. It will ,thus be seen that
during the period of five years from 1974 to 1978, there was an
infinitesingly small number of cases, only 29 out of an aggregate
H number of approximately 85,000 cases of murder, in which death
sentence was executed. Of course, the figures supplied by the.
BACHAN SINGH v. PUNJAB (Bhagwati, J.). 333

Government of India did not include the fignres from the States of
A
Bihar, Jammn arid Kashmir, West Bengal and Delhi Adminis-
tration bnt the figures from these - three States and from
·the Union Territory of Delhi w0uld not make any appreciable
difference. It is obvious therefore that even after conviction
in a trial, there is high digree of probability that death sentence may
not be imposed by the· sessions court and even if death sentenoe is
B
imposed by the sessions court, it may not be confirmed by the High
·Court· and even after confirmation by the High Court, it may not
be affirmed by this Court and l~stly, even if affirmed by this Court,
it may be commuted by the President of India under Article 72 or
by the Governor. under Article 161 of the Constitution in exercise
of the power of clemen.cy. The possibility of execution pursuant to
c
a sentence of death is therefore almost negligible, particularly after
the enactment of section 354 sub-section (3) of the Code of Criminal
Procedure 1973 and it is difficult to see how in these circumstances
death penalty c~n ever act · as. a deterrent. The knowledge that
death penalty is rarely/imposed and almost certainly, it will not be D
imposed takes away whatever deterrent value death' penalty might
otherwise have. The expectation, bordering almost on certainty,
that death sent~nce is extremely. unlikely to be imposed is a factor
that would condition the. behaviour of the offender and death
penalty cannot in such a situation have any deterrent effect. The
risk of death penalty being rem 0 te and improvable, it cannot operate
as a greater deterrent than the threat of life imprisonment. Justice
Brennan and Justice White have also expressed the same view in
Furman v. Georgia (supra), namely, \hat, wh~n infrequently and
arbi'trarily imposed, death penalty is not a greater deterrent to
murder than is life imprisonment. ·
F
The majority speaking through Sarkaria, J. has referred to a
few decisions of this Court in whi.ch; according to majority Judges,
the deterrent value of death p~nalty has been judicially recognised.
But I do not think any ·reliance can 'be placed on the observations
in these decisions in support. of the view that deal~ penalty has. a G
uniquely deterrent effect. The learned Judges who made these
observations did not have any socio-legal data before the~· on the
basis of which they could logically come to the conclusion that
a
death penalty serves as _deterrent. They merely proceeded upon
an impressionistic view which is entertained by quite a few fawyers, H
judges and legislators without any •scientific investigation or empiri-
•
334 SUPREME COURT REPORTS (1983j I s.c.R.
A cal research to support it. It appears to have been assumed by
these .Jearned judges that death penalty has an additional deterrent
effect which life sentence does not possess. In fact, the learned
judges were not 'concerned in these decisions to enquire and deter-
mine whether dea'th penalty has any special deterrent effect and
therefore if they proceeded on any such assumption, it. cannot be
8 said that by doing so they judicially recognised the deterrent value
of death penalty. It is true that in Jagmohan's case (supra) Palekar
. J. speaking on behalf of the court did take the view that death
penalty has a uniquely deterrent effect but I do not think that
beyond a. mere traditional belief the validity of which cannot be
demonstrated either by logic or by reason, there is any cogent and
valid argument put forward by the learned Ju~ge in support of
the view that death sentence bas greater deterr.ent effect th~n life
sentence. The majority judges have relied on some of the observa-
tions of Krishna Iyer, J. but it must not be forgotten that Krishna
Iyer, J. has been one of the strongest opponents of death penalty and
he has pleaded with passionate conviction for 'dea.th sentence ·on
D
death sentence'. In Dalbir. Singh & Ors. v. State of Punjab (supra)
he emphatically rejected the claim of deterrence in most unequivocal
terois : " ...... the humanity of our Constitution historically viewed
(does not) .subscribe to the hysterical assumption or facile iUusion
that a crime free society will dawn if hangmen and firing squads.
E were kept feverishly busy." fr would not be right to rely on stray
or casual observations of Krishna Iyer, J. in s4pport of the thesis
that death penalty has a uniquely deterrent effect. It would be
doing grave injustice to him and to the ideology for w!iich he stands.
In fact, the entire basis of the judgment of Krishna Iyer, J. in
Rajendra Prasad' s mse is that death penalty has not detem,nt value .
F and that is only where the killer is found to be a social monster or a
beast incapable of reformation that he can be liquidated out of
existence. Chinnappa Reddy, J. has also in Bis/mu Deo Shaw's case
·(supra) taken the view that "ihere is no positive indicatfon that the
death penalty has been deterrent" or in other words, •:the efficacy of
the d~ath penalty as a deterrent is unproven."
G
Then reliance has been placed by Sarkaria, J. speaking on
behalf of the majority on the observations of Stewart, J. in Furman v.
.Georgia (supra) where the learned Judge took the view that death
·• penalty serves a deterrent as well as .retributive purpose. ·In his
H view, certain criminal conduct is so atrocious that society"s interest
in deterrence and reiribution wholly outweighs any considerations
BACHAN SINGH v. PUNJAB [Bhagwati, J.) 335

of reform .or rehabilitation of the jlerpetrator and that, despite the A
on co~clusive empirical evidence, on!y penalty of'deaih will provide
maximum deterrence. Ir has also been pointed out by Sarkaria, J.
that in Gregg v. Georgia (supra) Stew~rt, J. reiterated the same view
in regard to the deterrent and retributive effect of death penalty .
.But the view taken hy Stewart, J. cannot be regarded· as decisive of.
the present question.as to the deterrent· ·effect of death penalty. It B
is just one view ·like any other and its validity has to be tested. on
the touchstone of logic and reason. It cannot be accepted merely
because it is the view of an eminent j "dge, I find that as against
the vie~ taken by-him, the~ is a contrary view taken by at least two
judges of the United States Supreme Court, namely, Bt'ennan J. and
Marshall J, who were convi'nped in Gregg v. Georgia (supra) that
c
"capital punish~ent is not nlecessary as a deterrent to crime in our
society." It is naturai,ditfering judicial observations supporting one
view or the other that these should be particularly~n a sensitive issue
like this, but what is necessary is_ to examine objectively and criti-
cally the logic and rationale behind these· observations and to deter- D
mine for ourselves which observations represent the., correct '
view
that should find acceptance with us. The majority Judges speaking
through Sarkaria, J. bave·re!ied upon the observaiions of ;'ltewart, J.
as also on the observations made by various other Judges and
;iuthors for the purpose of concluding that when so many eminent·
persons have expressed the vie.w that capital punishment is necessary E
for the protection of society, how can it be said that it is arbitrary
and unreasonable and does not serve auy rational penological
purpose. It has been observed by Sarkaria, J : "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 ibis
issue, is a ground among others, for reje-cting ti)e petitioners' , F
argument that retention of death penalty in the impugned provision,
is totally devoid of reason and purpose. I'f, notwith'standing the
view of the Abolitionists to the contrary, a very large segment ·of
people, the world over, including sociologists legislat9rs, jurists,
judges and administrators still firmly' believe in the worth and neces- G
sity ofca~itat' punishment for the protection· of society .............. .
, ......... it is not possible to hold that the provision .of death penalty.'-.,
as an alternative punishment for murder ......... is unreasonable and _ ·
not in the. public interest. J find it difficult to accept this argument
which proceeds upon the hypothesis that merely because some
lawyers, judges and jurists are of the opinion that death penalty H

, '
336 SUPREME COURT REPORTS [1983] I s.c.R,
A sub-serves a penological goal and is therefore in public' interest, the
court must shut its eyes in respectful deference to the views expressed
. by these scholars and refuse to examine whether their views are
correct or not. It is difficult to understand how the court, when '
called upqn to determine a vital issue of fact, can I
surrender its
ii!dgment to the views of a few lawyers, judges and jurists and hold
B that because such eminent persons have expressed these views, there
must be some substance in what th<:y say and the provision of death
penalty as an alternative punishment for murder cannot therefore be
regarded as arbitrary and unreasonable~- It is to my mind incon-
ceivable that a properly informed judiciary concerned to uphold
Fundamental Rights should decline .to come to . its own determina-
c tion of a factual dispute relevant to the issue whether death penalty
serves a legitimate penological purpose and rest its decision only on
the circumstance that there are sociologists, legislators, judges and
jurists who firml' believe in the worth and necessity of capital
punishment. The court must on the material before it, find whether
the views expressed by lawyers, judges, jurists and criminologists on
D
one side or the other are well founded in logic and 'reason· and
accept those which appear to it to be correct and ·sound. The
Court must always remember that it is cbarg;d by the Constitution to
act as a sentinal on the qui vive guarding the fundamental rights
guaranteed by the Constitution and it cannot shirk its responsi-
bility by observing that since there are strong divergent views 6n
E
the subject, the court need not express any categorical opinion one
way or the other as to which of these ' t~o views is correct. Hence
it is that, in the discharge of my constitutional duty of protecting
and upholding the right to life which is perhaps the most basic of
all human rights, I have examined the rival views and come to the
conclusion, for reasons which I have already discussed, that death
F penalty bas no uniquely deterrent effect and does not serve a
penological purpose. But even if we proceed on the hypothesis
that the opinion in regard to the deterrent effect of death penalty is
diviped and it is not possible to say which opinion is_ right ,and
which opinion is wrong, it is obvious that, in this state of affairs, it
G cannot be said to be proved that death penalty has an additional
deterrent effect not possessed by life sentence and if that be so, the
legislative provision for imposition of death penalty as alternative
punishment for murder fail, since, as already pointed out above, .
the burden of showing that death penalty has a uniquely deterrent
H effect and therefore serves a penological goal is on the State and
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 337

if the State fails to discharge this burden which lies upon it, death A
penalty as alternative punishment for murder must be held to be
arbitrary and unreasonable.

The majority iudges have, in the Judgment of Sarkaria', J.
placed considerable reliance on the 35th Report ofthe Law Com.mis-
sion and I must therefore briefly refer to that Report before I part B
. with this point. The Law Commission .set out in their Report the
following main points that weighed with them in ~rriviog at the
conclusion that capital punishment does act as .a deterrent :

(a) Basically, every human beipg dreads death.
c
(b) Death, as a penalty, stands ·on a totally different level
from imprisonment for life or any other punishment.
The difference is one of quality, and ~ot merely of
degree.
•
(c) Those who are specifically qualified to, express an D
opm10n on the subject, .including particularly the
majority of'the replies received from State Govern-
ments, Judges, Members of Parliament and legislatures
and Members of the, Bar and police officers-are
definitely of the view that the deterrent object of
capital punishment is achieved in a fair measure in .E
India.

(d) As to conduct of prisoners released from· jail (after
under going imprisonment for life), it ·would be difficult·
to come to a conclusion, without studies extending
over a long period pf years. , F
(e) Whether any 'other punishment can possess all the
advantages of capital· punishment is a matter of
doubt.

(f) Statistics of other countries are inconclusive on ihe G
subject. If they are not regarded as proving the
deterre~t effect, neither can they be regarded as con-
clusively disproving it,, ·

So far as the first argument set out in clause (a) ·is concerned, 'I have H
alrea(!y shown that the circumstance tliat every human beio~ dre~ds
338 SUPREME COURT REPORTS ( 1983) I S.C.R.

A death cannot lead to the. inference ·that death penalty· acts as a
deterrent. The statement made in clause (b) is perfectly correct
and I agree with the Law Commission that death as a penalty stands +
on a totally different level from life imprisonment and the diffe-
rence between them is one of quality and not merely of degree,. but
I fail to see how from this circumstance an inference can necessarily
B 'follow that de.ath penalty has a uniquely d~terrent effect. Clause (cl
sets out that' those who are specially quali~ed to express an
opinion on the subject have in their replies to the questionnaire
stated their definite view that the deterrent effect of 'capital punish-
ment is achieved in a fair measur•e in India, It may .be that a large
number of persons who sent replies to the questionnaire issued by
c the Law Commission might have expressed· the view that death
a
penalty does act as deterrent in our country, but mere expression
of opinion in reply to the· questionnaire, unsupported by reasons, can-,
'not have any evidenciary value. There are quite a number of people
in this country who still nurtur•e the superstitions and irrational
belief, ingrained in their minds by a century old practice of imposi-
D tion of capital punishment and fostered, though not consciously,
by the instinct for retribution, that death penalty alone can act as
an effective deterrent against the 1:rime of murder. I have already
d~mOI)Strated how this belief entertained by lawyers, judges,
legislators and police officers is a myth and it has no basis in logic
· or reason. In fact, the statistical research to which I have referred
E ccimpletely falsifies this belief. Then, there are the arguments in
clauses (d) and (e) but these arguments even according to the Law
Cqmmission itself are inconclusive and it is difficult to see how they,
can be relied upon to support the thesis. that cap'ital punishment acts
as a deterrent. The Law Commission states' in clause (f) that

'~
statistics of other countries are inconclusive on the subject. I do
F nbt agree. I have already dealt with this argument .and shown
that the statistical s(~dies carried out by various jurists and crimino-
logist; clearly discfose that there is no evidence at all to suggest that
deatl1 penalty acts as a deterrent and it must therefore be held on the
basis of the ava.ilable material that death penalty does not act as a
G deterrent. But even if we accept the proposition that the statistical
studies are inconclusive and ·they cannot be regarded as proving that
death penalty bas no deterrent effect, it is ·cle,ar that at the same
time they also do not establish that death penalty has a uniquely ·
deterrent effect and in this ~ituation, the burden of establishing
H :that death penalty has an additional deterrent effect which life
~entence qoe~ qot ll~Ye ~n<I .tberefore serves a penological purpose
\
BACHAN• SINGH v. PUNJAB (Bhagwali, i.) 339

being on tbe State, it must held that the State has failed fo discharge
A
the burden which rests upon it and death penalty must therefore
be b'eld to be arbitrary and unreasonable. .

There was also one other argument put forward by the Law
Commission .in its 35th Report and that argument wa.s that having B
regard to the conditions in India to the variety of social up-bringing
of its inhabitants, to the disparity in the level of morality and educa,
lion in the country, to the vastness of its area, to the diversity of its·
population and to the paramount .need to maintain law and order
in the country at the present junc.ture, India cannot risk the experi-
ment of abolition of «apita! punishment. This argument does not
commend itself to me as it is based more on fear psychosis than
c
on reason. It is difficult to see how any of the factors referred to
by the Law Commission, barring the factor relating to the need to
mainfain law and order, can have any relevance to ~be question of
. deterrent effect of capital punishment. I cann·ot · .subscribe to the
opinion that, because the social upbringing of the'people varies from
place to place or from class to .class or there are demographic
diversities and variations, they tend to increase · the· incidence of
· homlcide and even lf they do, I fail to see how death penalty can
counter act the effect of these factors. It is true. that the level of
education in our country is low, .because· our developmental process
started only after we became politically ·free, but it would be. grossly E
unjus(to say that uneducated people are more prone to crime than
the educated ones. I also cannot ·agree that the level of morality
which prevails amongst our people is low. I firmly hold the view
that the large b~lk of the people in our country, barring only a few.
who occupy positions of political, 'administrative or eeonomic power,
ar~ actuated by a high, sense of moral and ethical values. In fact, F.
if we compare the rate of homicide in India with that in the United
States, where there is greater homogeniety in population and the
level of education is fairly high; we find that India compares very
favourably with the_ United States. The rate· of homicide for"the
year 1952 was 4.7 in the United· States as against the rate of only
2.9 in India per 1,00,000 popu]ation and the figures for the ye3r G
1960 show that the rate of homicide in ·the United States was 5.1 as
against the rate of only 2.5 in India per 1,00,000 population. The
comparative ffgures for the year 1967 also confirm that the rate of
homicide per 1,00,000 population in the United States was definitely
highe.r than tliat in India because in the United, States it -.yas 6.1 H
SU~REMil CbtillT llBPOki's (1983] I s.c.11..

A while in India it was only 2.6. It is therefore obvious that, despite
the existence of the factors referred to by the Law Commission, the
conditions in India, in so far as the rate of homicide is concerned,
are definitely better than in the United States and I do not see how
these factors can possibly justify an apprehension that it may be
risky to abolish capital punishment. There is in fact statistical evi-
B dence to show that the attenuation ·of the area in which death.
penalty may be imposed and the remoteness and infrequency of
abolition of death penalty have not resulted in increase in the rate of ,
homicide. The figures which were placed before us on behalf of the
Union clearly show that there was no increase in the rate of homicide
.even though death sentence was made awardable only in exceptiohal
c cases under section 354 ·sub-section (3) of the new Code of Criminal
Procedure 1973. I must therefore express my respectful dissent from
the view taken by the Law Commission that the experiment of aboli-
tion of capital punishment would involve a certain element of risk
to the law and order situation.

It will thus be seen that death penalty as provided under
section 302 of the Indian Penal Code read with section 354
sub-section (3) of the Code of Criminal Procedure, 1973
does not subserve any legitimate end of punishment, since
by killing the murderer it totally. rejects the reformative
purpose aDd it has no additional deterrent effect which
E
life sentence does not possess and it is therefore not justified ·by the
deterrence theory of punishment. Though retribution or denuncia-
tion is regarded by some as a proper end of punishment. 'I do not
think, for reasons I h.ave already discussed; that it can have any
legitimate place in an enlightened philosophy of punishment. It
F must therefore be held that death penalty has no rational nexus with
any legitimate penological goal or any rational penological purpose
· ~nd it is arbitrary and irrational and hence violative of Articles 14
and 21 of the Constitution .
. I must now turn to consider the attack against the constitu-
tional validity of death penalty provided under section 302 of the
G Indian Penal Code read with section 354 sub-section (3) of the
Code of Criminal Procedure, 1973 on the ground that these
sections confer an unguided and standardless discretion on the conrt
whether to liquidate an accused out of existence or to let him con-
tinue to live and the vesting of such discretion in the court renders
H
the death penalty arbitr~ry and freakish. This ground of challenge
is in my opinion well founded and it furnishes one additional. reason
llACHAN SINGH v. PUNJAB (Bhagwati, J.) 341

why the death penalty must be struck down as violative of Articles A
14 and 21. It is obvious 6n a plain reading of section 302 of ihe
Indian Penal Code· which provides death penalty as alternative
punishment for murder. that it leaves it entirely to the discretion of
Court whether to impose death sentence or to award only life im-
prisonment to an accused convicted of the offence.ofmurder.· This
section dot;s not lay down any standards or principles to guide the
8
discretion of the Court in the matter of imposition of death penalty.
The critical choice between physical liquidation and life long incar-
ceration is left to the discretion of the court and no legislative light
is shed as to how this deadly discretion is to be exerqised. Tile
court is left f~ee to naviga'te · in an uncharted sea without any com-
p~ss or directional ·guidance. The respondents sought to find some
c
guidance in section 3~4 sub-section (3) of the Code of Criminal
Procedure 1973 but I fail to see how that section can be of any help
at all in providing guidance in the exercise of discretion. On the
contrary it" makes the e1ercise of discretfon mor~ difficult and-un-
certain. Section 354 sub-section (3) provides that in case of offence D
· of murder, life sentence shall be the rule and it is only in exceptional •
cases for special reasons that death penalty may be awarded. But •
what are the special reasons for which the court may award death
penalty is· a matter on. which section 3S4 sub-section (3) is silent nor_
is any guidance in that behalf ·provided by any other provision of .
law. It is left to the Judge to grope in the dark for himself and in· E
the exercise of his unguided and unfettered discre.tion decide what
reasons niay be considered as 'special reasons' justifying award of
death pena.lty and whether in a given case any such special reasons'
· exist which should persuade the court. to depart from the normal
rule and inflict death penaliy on the accused. There being no legis-
lative policy or principle to guide the court in exercising its discre- F
tion in this delicate and sensitiv• 1rea of life and death, the exercise .
of discretion·of the Court is &Jund to vary from judge.to judge.
What may appear as special •easons to one judge may not so appear
to another and the. decision in a given case whether to impose the
death sentence or to let off the offender only with life imprison-
ment would, to a large extent, depend upon who is the G
judge called upon to make the decision. The reason for
this uncertainty in the sentencing~ process is two-fold. Firstly, the
nature of the sentencing process fs such that· it involves a highly
delicate task calling for skills and talents very much different from
those ordinarily expected of lawyers. This was- pointed out c !early
. • 1
H
342 SUPREME COURT REPORtS [198311 s.c.lt

A and emphatically by Mr. Justice Frankfurter in the course of the
evidence he gave ,before the Royal Commission on Capital Punish-
ment:

"I myself think that the bench-we °lawyers who be-
come Judges-are not very competent, are not qualified by
8 experience, to impose sentence where any discretion is to be
exercised. I do not .think it is in the 'domain· of the train:
ing of lawyers to know what to do with a fellow after you
find out he is a thief. I do not think legal training has
given you _any special competence. I, myself, hope that
one of these days, and before long, we will ·divide the func-
c tions o(criminal justice. I think the lawyers are people
whp are competent to ascertain whether or not a crime has··
been committed. The whole scheme of common law judi-
cial machinery-the rule of evidence, the ascertainment of
what is relevant and what is irrelevant. and what is fair, the
whole question of whether you cati introduce prior.crimes
D in order 'to prbve intent-I think lawyers are peculiarly
fitted for that task. But all the questions that follow upon
ascertainment of guilt, I .think require very different and
mu~h more diversified talents than the lawyers and judges·
are normally likely to possess . "
E
· Even if . considerations _relevant to capital sentencing were·
0

provided by the legislature, it would be a difficult exercise
f~r the judges to decide whether to impose the death penalty' or
to award the life sentence. But without any such guidelines giv.en
'F by the legislature, the task of the judges becomes much more arbit-
rary and the sentencing decision is bound to vary with each judge.
Secpndly, when unguided discretion is conferred upon the Court to
cheose bet.ween life and death, by providing a totally vague and
indefinite criterion of 'special reasons' without laying down any
principles or guidelines for determining what should be considered
G . to be 'special. reasons', the choice is bound to be influenced by the
subjective pl)ilosophy of the judge .called upon to pass the sentence
and on his value sysiem and social philosophy will depend whether
the accused shall live or die. No doubt the judge will have to give
'special reasons' if he opts in favour of inflicting 'the death penalty,
but that does not eliminate arbitrariness and caprice, firstly because
H
there being no guidelines provided by the legislature, the reasons
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 343

which may appeal to one judge as 'special reasons' may not appeal
A
to another, and secondly, because reasons can always be found for
a conclusion that the judge instinctively wishes to reach and ·the
judge can bona fide and conscientiously find such reason to be 'spe·.
cial reasons'. It is .now recognised on all hands that judiCial cons·
cience' is not a fixed conscience; it varies from judge to judge depen-
ding upon his attitudes and approaches, his predilections and prej~
dices, his habits of mind and thought and in short all that goes with
the expression "social philosophy". We lawyers and judges iike to
.cling to the myth that every, decision which we make in the exercise
of our judicial.discretion is guided exclusively by legal principles
and we.refuse to admit the subjective element in judicial decision c
making. But that myth now stands' exploded and it is. acknowledg-.
ed by jurists that the social philosophy of the judge plAys a not
inconsiderable part in moulding his judii!!al decision and partic~larly
· the exercise of judicial discretion. There is nothing like complete
objectivity' in the decision making process and e;pecially so,' when
this process involves making of decision in the exercise of]udicial D
discretion. Every judgment necessarily bears the impact of the atti·
tude and approach of the judge and his social value system. It
wo!'ld be pertinent here to quote Justice Cardozo's analysis of the
mind of a Judge in his famous lectures on "Nature of Judicial
Process" :
E
\
"We are reminded by William James in a telling page
' . of his lectures on Pragmat)sm . that e~ery one of us· has in
truth an underlying philosophy of life, even ·those of us to
whom the names ·and the notions of philosophy are un-
koown or anathema. There is in each of us a stream of
tendency, whether you choose t9 call it philosophy. or
F
n"t, which gives coherence and direction to thought and
action. Judges cannot escape that current any mor.e than
other mortals. All their lives, forces which they do not
, recog~ize and cannot name, have been tugging at them-
inherited instincts, traditional beliefs, acquired convictions; G
· and the resultant is an outlook on life, a conception of
soda! needs, a.· sense in Jame's phrase of 'the .total push
and pressure of'the cosmos,' which when reasons are nicely
balanced, must determine where chqice shall fall. In this
mental background every prob!ein finds its setting. We H
may try to see things as objec:ivel,Y as we please. None-
344 SUPREME COURT REPORTS [198311 s.c.R.

A theless, we can never see them with any eyes except our
o~n."

It may be noted that the .human mind, even at i11fancy, is no blank
sheet c;>f paper. We are born. with predisposition and the process
of education, formal and informal, and, our own subjective experi-
B ences create attitudes whicli effect· us in judging situations and
coming to decisions. Jerome Frank says in his book; "Law and
" the Modern Mind", in an observation with which I find myself in .
entire agreement :

c "Without acquired 'slants' preconceptions, life could
not go.on.· Every habit constitutes a pre-judgment; were
those pre-judgments which we call habits absent in any
person, were he obliged to treat every event as an unpre-
cenderited.crisis presenting a: wholly new problem, he would
go mad. Interests, points of view, preferences, are the
D essence of living. Only death yields complete dispassiona-
teness, for such dispassionateness signifies utter indiffe-
rence.·..... An 'open mind' in the sense of a mind containing •
no pre-conceptions wh~tever, would be a mind iricapal;>le
of learning anything, would be that o(an utterly emotion-
less human being."
E
It must be remembered that "a Judge does not shed· the attributes
of common humanity when be assumes the eim~ne." The . ordiqary
human mind is a mass of· pre-conceptions inherited and acquired,
often unrecognised by their possessor. "Few minds are as neutral
as a sheet of plain glass and indeed a mind of that quality may
F actually fail in judicial efficiency, i for· the warme~ tints of
imagination and sympathy are: needed to temper the cold light of
reason, if human justice is to be done." It is, therefore, obvious
'
· that when a Judge is called upon ·to exercise his discretion as to
whether the accused shall be killed or shall be permitted to live, bis
conclus.ion would 'depend to a large extent on his approach and
G - ,
attitude, bis predilections and pre-conceptions, bis value system and
social philosophy and .his response to the evolving norms of decency
and newly developing concepts and ideas in penological jurispru-
dence. One Judge may have faith in the Upanishad doctrine that
every human being is an embodiment of the Divine and he may
H believe with Mahatma Gandhi that every offender can be reclaimed
•
I
BACHAN SINGH v. PUNJAB (Bhagwati, 1.) 345

A
and transformed by love and it is immoral and unethical ,to kill him,
·+ while another Judge may believe that it is necessary for social
defence that the offender should be put out of way and that no
mercy should be shown to him who did not show mercy to another•
. One Judge may feel that the Naxalites, though guilty of murders,
are dedicated souls totally . different from ordinary criminals as B
they are motivated not by any self-interest but by a burning desire
to bring about a 'revolution by eliminating vest~d interests and
" should not therefore be pu_t out of corporeal existence while another
., Judge may .take the view that the Naxalities being guilty of cold pre-
meditated murders are a menace to the society and to innocent men
and women and therefore deserve to be liquidated. The views of c
Judges as to what may be regarded as· 'special reasons' •are bound
to differ from -Judge to Judge depending upon his value system and
social philosophy with the .result that whether a person shall live or
l'. die depends very much upon the composition of. the bench which
tries his case and this renders the imposition of death penalty
arbitrary and capricious. D

Now this conclusion· reached by me is not based merely on
theoretical or a priori considerations. On an analysis of decisions
:> given over a period of years we find that in fact there is no uniform
pattern of judicial behaviour in the imposition of death penalty and E
the judicial practice does not disclose any coherent guidelines for
the award of capital punishment. . The Judges have been awarding
death penalty or refusing to award it according to their own scale
of values and social philosophy and it is not possible to discern any
consistent approach fo the problem in the judicial· decisions. It is
apparent from a study of the judicial decisions that some Judges are F·
.; readily and regularly inclined to snstain ·death sentences, other are
simi!arly disinclined and the remaining 'waver from case to case.
Even in· the Supreme· Court there are divergent attitudes and
.: opinions in regard·to the imposition of capital punishment. If a case
comes before one Bench consisting of Judges who believe in the
social efficacy of capital punishment, the death sentence would in G
all probability be confii;med . but if the same case. comes before
• ¥ another Bench consisting of Judges .who are morally and ethically
against the death penalty, the death sentence would'mos( likely be
'commuted to life imprisonment. The former would find and I say
this not in ·any derogatory or disparaging sense, hut as ; conse-
,H
quence of psychological and ·attitudinal factors operating on the
.. )
SIJUEME col.JRT REPORTS [1983) t s.c.tt.
A 'minds of the Judges constituting the Bench-'special reasons' in the. , lw
' case to justify award _of death penalty· while· the latter would reject .
any such reasons as special reason.s. It is also quite possible that
· one Bench may, having regard to its preceptions, think that there
are special reasons .in the case for which death penalty should . be
awarded while another .Bench may bonafide and conscientiously
B · take a different view and hold that there are no special reasons- and
.· that 'only life sentence . should be imposed and it may not be possible ¥
to assert 'objectively and logically as· to who is right and who is· .
wrong, because the exercise . of discr.etion in a case ·of this kind,
)
; where llo broad standards or guidelines are supplied by the legisla-
ture, is bound to rbe influenced by · the · subjective attitude and
c approach of the Judges constituting the Bench, their. value system·,
individual tone of their mind, the colour of their experience and the
character and variety of their interests and their predispositions ..
This arbitrariness in the imposition of death penalty is considerably
accentuated. by the fragmented bench structure of our Courts where
benches are inevitably formed . with different perniutations and
D combinations from time to time and cases relating to the offence of
murder come up for hearing sometimes before one Bench, some-
times before another somestimes before a third and so on. Prof. ·.
'Blackshield has in his Article ·on 'Capital .Punishment· in India'
published in Volume 21 of th.e Journal of the Iildian Law Institute . --
pointed out how the practice of bench formation contributes to
E arbitrariness in the imposition ·or death penalty. It is well-known
that so far as the Supreme Court is concerned, while the · number. of
· Judges has increased over the years; the number of Judges
, . on Benches which hear capital punishment cases has actually
decreased •. Most· cases are now heard by two judge Benches. Prof.
. F , Blackshield has abstracted 70 cases in , which ' the Supreme· Court
had to· choose between life and death while sentencing an accused
for.the offence of. murder and analysing these 70. cases he has -
_ _ pointed out that during the period 28th. April 1972 to· 8th March , ,
J976 oply eleven Judges of the Supreme Court. participated in 10%
or more of the cases. , He has rlisted these eleven Judges in an'
G ascending' order of leniency· based on the proportion for each Judge ·
of plus votes (i.e. votes for the death sentence)· to total votes and
pointed out that .these statistics show how the judicial reponse to the
question of life and death varies for judge to judge." It is significant
to note that out of 70 cases analysed by Prof. Black:shield, 37 related
\ H . to tbe· period subsequent to the ·coming into force of section 354
sub-section (3) ·of the Code of Criminal Procedure 1973. If a similar
\ .
BAcHAN SINGH v. PUNJAB (Bhagwatf, 1.) 347
t - A
exercise is performed with reference to cases decided by the Supreme' _
. Court after 8th March 1976, that being the date upto which' the
survey carried out by Prof. Blackshield was limited, the analysis will .
reveal the same pattern of incoherence, and arbitrariness, . .the de-:! .
. . sion to kill or not to kill being guided to a large .extent by the com-
position of the Bench. Take for example Rajendra· Prasad's case
(supra) decided on 9th Februacy 1979. In this case, the death sen-
tence imposed on Rajendra Prasad was commuted. to life imprison-
ment by a majority consisting of Krishna Iyer, J. and Desai, . J. ·
A.P... Sen, J. dissent~d and was 'of the view that the death sentence
. should. be · confirmed. . Similarly . iri one of the cases before us,
namely, Bachan Singh v. State of Punjab,( 1) when it was first 'c
heard by a Bench consisting cir· Kailasam and . Sarkaria, JJ.,
Kailasam, J. was 'definitely of the view that the major'ity decision in
Rajendra Prasad's case was wrong and that is why he referred· ihat
case to the Constitution Bench. So also in Dalbir Singh v. State of
Punjab (supra), the majority consisting of Krishna Iyer, J. and Desai,
J. took the view that the death sentence. imposed on Dalbir Singh D
should be commuted to life imprisonment while A.P. Sen, J, struck ·
to the original view taken by him in. Rajendra Prasad's case and
was inclined to confirm the death' sentence. · It will thus be ·seen.
that the exercise of discretion whether to inflict death penalty . or
not depends to a considerable extent on· the value system and social
philosophy of. the Judges.constituting the Bench._· E
,
The most striking example of freakishness in.imposition of death , ,
· pe~alty is provided by a recent case which involved three accused,
namely, Jeeta Singh, Kashmira Singh and, Harbans Singh. These
three persons were sentenced to ·death by the Allahabad 11'.igh Court .p
by a judgment and order dated 20th October 1975 for. playing_ an
equal part in jointly murdering a family of four persons. . Each of
these thiee persons preferred a separate petition in the Supreme
Court for special· leave .to appeal against the co-mmon judgment .
sentencing them all to death penalty. · The. special ·leave petition of
· Jeeta Singh came up for hearing befo;e a bench consisting of G
. Chandrachud, J. (as he then was) .~rishna Iyer, J. and N.L.
Untwalia, J. and it -was dismissed on 15th April 1976. Then canie the
special leave petition preferred by Kashmira Singh from jajl and this
petition was placed for hearing before another bench consisting of Fa_zal.
'Ali, J. and myself•. We granie<l leave to Kashmira Singh limited to B ,''
(I) {1979] 3 SCC.727.
348 SUPREME COURT REPORTS [1983] I s.c.R.
'
A the question of sentence and by an order dated 10th April 1977 we
allowed his appeal and commuted his sentence of death into one of
imprisonment for life. The result was that while Kashmira Singh's -!- ..
.death sentence was commuted to life imprisonment ·by one Bench,
the death sentence imposed on Jeeta Singh was confirmed by another
bench and he was executed on 6th October 198 l, though both _had
B played equal part in the murder of the family and there was nothing
to distinguish the case of one from that of the other. The speci~I
leave petition of Harbans Singh then came up for hearing ·and this
time, it was still another bench which heard his special leave peti-
tion. The Bench consisted of Sarkaria and Singhal, JJ. and they "
rejected the special leave petition of Harbans Singh on 16th ,.
c October, 1978. Harbans Singh applied for review of. this decision,~
but the review petition was dismissed by Sarkaria, J. and A.P. Sen, ·
J. on 9th May 1980. It appears that though the registry of this
court had mentioned in its office report that Kashmira Singh's , .
death sentence was already .commuted, that fact was not brought ~

to the notice of the court specifically when the special leave petition
D of Harbans Singh and his review petition were dismissed. Now
since his special leave petition as also his review ·
petition were dismissed by this Court, Harbans Singh would •
have been executed on 6th October 1981 along with Jeeta Singh, but
fortunately for him he filed a writ petition in this Court and on that
writ petition,· the court passed an order staying the execution of his
E death sentence. When this writ petition came up for hearing before •
a still another bench consisting of Chandrachud, C. J., D:A. Desai
and A.N. se-n. JJ., it 'was pointed out to the court that the death
sentence imposed on Kashmira Singh had been commuted 'by a
bench consisting of Fazal Ali, J. and myself and when this fact was
pointed out, the Bench directed that the case be sent. back to the
F President for reconsideration of the clemency petition filed b
Harbans Singh. This is a clas.sic case which illustrates the judicial
vagaries in the imposition of death penalty and demonstrates vividly,
in all its cruel and stark reality, how the infliction of de.alb penalty
is influenced by the composition of the bench, even in cases governed
G by section 354 sub-secti;m (3) of the Code of Criminal Procedure •
1973. The question may well be asked by the accuseo : Am I to
live or die depending upon the way in which the Benches are consti-
tuted from time to time ? Is that not clearly violative of the funda·
mental guarantees enshrined in Articles ! 4 and 21 ? •
BACHAN SINOR v. PUNJAB (Bhagwati, J.) 349
A
If we study the judicial decisions given by the courts over a
number of years, we f!nd J udg.es resorting to a ~ide vadety of
factordn justification of confirmation or commutation of death,
sentence and these factors when ~nalysed fail to reveal any coherent
pattern. This is the inevitable consequence of the failure of the
legislature to supply broad stanoards or guidelines which would • B
structure and channelise the discretion of the court in' the matter
of imposition of death. penalty. Of course, I may make it
clear that when I say this I do not wish to suggest . that if
broad standards or guidelines are supplied by the legislature, I.hey
would necessarily cure death penalty of the vice· .of arbitrariness · or
freakishness. Mr. Justice Harlan pointed out ·in Mc Gautha v. C
California(') the difficulty of formulating standards or guidelines for
channelising or regulating the discretfon of the court in these
words":. -

"Those who have come to grips with the hard task of
actually attempting to· draft means of channeling capital D
sentencing discretion have confirmed the lesson taught by ...
history ... To identify before the fact those characteristics of
criminal homicides and their perpetrators which call for
the death penalty, and to express these characteristics in
language which can be fairly understood and applied by
the sentencing authority, appear to be tasks' which are E
~eyond present human ability."

But whether adequate standards or guidelines can be formulated or
not which would cure the aspects of arbitrariness and capriciousness,
the fact remains that no such standards or guidelines,,are provided
by the legislature in the present case, with the result that the court F
has unguided and untrammelled diScretion in choosing between
death and life imprisonment as penalty for the crime of murder and
this has led to considerable arbitrariness and uncertainty. This is
evident from a study of the decided· cases which.clearly shows that
the reasons for confirmation or commutatiqn of death sentence
• relied upon by the court in different cases defy coherent analysis.
G
Dr. Raizada has, in his monumental doctoral study entitled "Trends
in sentencing; a study of the .important penal statutes and judicial.
pronouncements of the High Courts a~d the Supreme Court"
identified a large number of decisions of this Court where inconsis-
H
(I) 402 us 183.
350 SUPREMB COURT REPORTS (1983) 1 S.C.R.
A tent awards of punishment have been made and the judges have
frequently articulated their ,
inability
·'
to prescribe , or follow
I
consis-
tently any standards or guidelines. He has classified cases upto
1976 in terms of the reasons given. by. the court for .awarding or
refusing to award death sentence. The analysis , made by. him is
·quite rewarding and illuminating. ·
.B . . . . I ·. . ..
(i) · One .of the reasons given by the courts in a number of
' . cases for imposh1g death penalty is that the murder
~. is. ~'brutal" • .,cold blooded", "deliberate'·,· "tinpro- -
, ~oked'~, "fatal", '.'gruesome'.', "wicked", ".callous", _
·/'heinous.. or "violent". But.the'use of these labels
c · , for describing the nature of the murder ·is ·indicative; ,
only of the degree of the cour_t's av~rsion for the nature
or' the ·manner of commission of the crime and · it is ·
possib!C that diffe~ent judges may . react· differently to
{ '\'
·I
these situations and moreover, some judges may -not
regard this .factor as having any relevance to the
D - . imposition of death penalty and may therefore. decline ) )
·to accord to it the status of "special reasons''.. In
. fact, there are numerous c3ses, where despite the
· murder being one falling within these categories, the
court has" refused· to · award · death ·sentence. For ·
•
example, Janardharan whose.appeal was -decided along
E with . the appeal . of· Rajendra Prasad had killed his
innocent wife and children in the secrecy of night and
\ the murder was deliberate and cold blooded, attended ' '
. as it was. with considerable brutality. and yet ihe majo-
rity consisting of Krishna· Iyer, J. and o:A. Desai,· J.
commuted ·his death sentence to ·lire· imprisonment.
So also Dube had commited triple murder and' still his
death sentence was commuted to life imprisonment by·
'·,the same two learned Judges, namely, Krishna Iyer,
I. and D.A. Desai, J. It is therefore clear that the
-
epithets mentioned above d.o. n,ot · indicate any clearcut
l
well defined categories but are merely expressive of·
G . the intensity of judicial reaction ·to the murder, which
(
may not be uniform in all ·Judges and even if the
murder falls within one of these categories, that factor

H
. has been regarded by some judges as relevant and by
others, as irrelevant . and it has not been uniformly \J .. ...
applied as a salient factor in determining whether or
not death penally. should be ·imposed,
tlACltAN SINGH v. PUNJAB (Bhagwati, J.) 3SI

(ii) There have been cases where death sentence has been A
awarded on the basis of constructive or joint liability
arising under sections 34 and 149. Vide: Babu v.
State of U.P.,( 1) Mukhtiar Singh v. State of Punjab,(') ·
Masalt v. State of U.P.,(3) Gurcharan Singh v. Stale
of P11njab.(') But, there are 'equally a large number of
B
cases whether death sentence has not been awarded
beause the criminal liability of the accused was only
under section 34 or Section 149. There are no establi· ,
shed criteria for awarding or refusing to award death
sentence to an accused who himself did not give the
fatal blow· but was involved in the commission 'of
murder along with other assailants under section 34 or
c
.. section 149.

(iii) The position as regards mitigating factors also shows
the same incoherence. One mitigating factor which
has often been relied npon for the purpose of com- D
muting the death sentence. to life imprisonment is the
youth of the offender. But this too has been quite
arbitrarily applied by the Supreme Court. There are
cases such as State of U.P. v. Suman Das,(') Raghubir
.. Singh v. Sate of Haryana( 6 ) and Gurudas ·Singh v.
State of Rajasthan(') where the Supreme Court took E
into account.the young age of the appellant and refused
to award ·death sentence to him. Equally there arc
cases such as Bhagwan Swarup v. State of U.P.(1) and
Raghomani v. State of U.P.(9 ) where the Supreme
Co_urt took the view that youth is no ground for
extenuation of sentenee. · Moreover there is also diver· .F
gence of opinion as to what should be the age at which
an offender may be regarded as a young man deserving
of commutation. The result is that as pointed out

(1) 1965 Cr. LJ SC 539. G
(2) 1965 Cr. U SC 1298.
(3) 1965 Cr. LJ SC 226.
(4) 1973 Cr. LJ SC 323.
(5) 1972 Cr. L1 SC 489.
(6) A.l.R. 1974 SC 677.
(7) A.l.R. 1975 SC 1411. ff
(8) 1971 Cr. L1 SC 413.
(9) AJ.R 1977 S.C. 703.
352 SUPREMB COURT RBPORTS [1983) l s.c.a,
A
by Dr. Raizada, in some situations young offenders
who have committed muftiple murders get reduction in
life sentence whereas in others, "where neither the
loss of as many human lives nor of higher valued
properly" is involved, the accused are awarded death
B sentence.

(iv) One other mitigating factor which is often taken into
account is delay in final sentencing. This factor of delay y
· after sentence received great emphasiS in Ediga Anna-
mma v. State of Andhra Pradesh,(') Chawla v. State of
c Haryana,( 2 ) Raghubir Singh v. State of Haryana (supra)
Bhur Singh v. State of Punjab,(") State of Punjab v.,
Hari Singh(') and Gurudas Singh v. State of Rajasthan(5)
and in these cases delay was taken into account for
the purpose of awarding the lesser punishment of. life
imprisonment. In fact, in Raghubir Singh v. State of
D · Haryana (supra) the fact that for 20 months the spectre
of death penalty must have been tormenting ·his soul
was held sufficient to entitle the accused to · reduction
in sentence. But equally there are a large number of
cases where death sentences have been confirmed,
even when two or more years were taken in finally
E disposing of the appeal; Vi de : Rishdeo v. State of
U.P;,( 6) Bharmal Mapa v. State of Bombay(') and other
cases given by o,. Raizada in foot-note 186 to
chapter III. These decided cases show.that there is no
way of predicting the exact period of prolonged procee-
ding which may favour an accused. Whether any im-
F portance should be given to the factor of delay and if
so to what extent are matters entirely within the dis-
crotion of the court and it is no! possible to assert with
any definitiveness that a particular period of delay
after sentencing will earn for the accused immunity
•
G
(I) AIR 1974 SC 799.
(2) AIR 1974 SC 1039.
(3) AIR 1974 SC 1256.
(4l AIR 1974 SC 1168.
(5) AIR 1975 SC 1411.
H (6) 1955 Cr. L.J. SC 873.
(7) 1960 Cr. L.J. SC 494.
llACilAN slNGil v. PUNJAB (lJhagwati, J.) · 3S3

fro111 death ·penalty. It follows as a necessary corro-
A
lary from these vagaries in sentencing arising from the
· factor of delay, that the imposition of capital punish-
ment becomes more or less a kind of cruel judicial
lottery. If the case of tbe accused is handled expedi-
tiously by the prosecution, defence lawyer, sessions B
court, High Court and the S11preme Court, then this
mitigating factor of delay is not available to him for ·
reduction to life sentence. Ir, on the other ·hand,
there has been lack of despatch, engineered or natural,
. then the accused may escape the gallows, subject of
course to the judicial vagaries arising from other causes.
In other words, the more efficient the proceeding, the
c
Jl!Ore certain the death sentence. and vice-versa.
~f
(v) The embroilment of the accused in an immoral
\ 1

relationship has been condoned and in effect, treated
as an extenuating factor in Raghubir Singh v. State D
·of Haryana (supra) and Basant . Laxman More v.
• State of Maharashtra(') while in Lajar Maslh v. State
of U.P.,( 2) it has been condemed and in effect treated
as an aggravating factor. There is thus no uniformity
of approach even so far as this factor ,is concerned. ·
E
All these facors singly ~nd cumulatively indicate not ,
merely that .there is an enormous potential of, arbitrary .award of
'•

death penalty by the High Courts and the Supreme Court but that,
in fact, death sentences have been awarded arbitrarily and freakishly.
Vide: Dr. l)pendra Baxi's note on "Arbitrariness of Judicial Imposi-
tion of Capital Punishment. F

Professor Blackshield has also in his article on "Capital Punish-
. ment in India" commented on the arbitrary and capricious nature of
imposition of death penalty and demon.strated ·forcibly and almost
conclusively, that arbitrariness and uneven incidence are inherent
and inevitable in a system of capital punishment. He has taken the G
decision of this Court in Ediga Anamma v. State of Andhra.
Pradesh (supra) as the dividing line and examined 'the judicial
> .... decisions given by this Court subsequent to the decision in Ediga

(1) AIR 1974 SC 1697. H
' ' (2) AIR 1976 SC 653, •
354 stiPRiit.iB coub RBPORts [1983) i s.c.R.
A Anamma's case, where this Court had to choose betweeµ life and
death under section 302 of the Indian Penal Code. The cases sub·
sequent to the decision in Ediga Anamma's case have been· chosen
for study and analysis presumbly because that was the decision in
which the court for the first time set down some working formula
whereby a synthesis could be reached between death sentence and life
B imprisonment and Krishna Iyer, J. speaking on behalf of the court,
formulated various grounds which, in bis opinion, might warrant
death sentence as an exceptional measure. But, despite this attempt
made in Ediga Anamma's case to evolve some broad standards or
guidelines for imposition of death penalty, the subsequent decisions,
c as pointed out by Professor Blackshield, display the same pattern
of confusion, contradictions and aberrations as the decisions before
that case. The learned author has taken 45 reported decisions given
after Ediga Anamma's case and shown that it is not possible to
discern any coherent pattern in these decisions and they reveal con·
tradictions and inconsistencies in the matter of imposition of death
[} .
penalty. This is how the learned author has summed up his con-
clusion aftsr an examination of these judicial decisions :

"But where life and death are at stake, inconsistencies
which are understandable may not be acceptable. The
hard evidence of the accompanying '_'kit of cases" compels
E _the conclusion that, at least in contemporary India,
Mr. Justice Douglas' argument in Furman v. Georgia is
correct : that arbitrariness and uneven incidence are inhe-
rent and inevitable in a system of capital punishment and
that therefore-in Indian constitntional terms, and in spite
of Jagmohan Singh-the retention of such a system necessa·
F rily violates Article 14's guarantee of "equality before the
law".

It is clear_from a study of the decisions of the higher courts on the
life-or-death choice that judicial adhocism or judicial impressionism
G dominates the sentencing exercise and the infliction of death penalty
suffers from the vice of arbitrariness and caprice.

I may point out that Krishna Iyer, J. has also come to the
the same conclusion on the basis of his long experience of the sen·
H tencing process. He has analysed the different factors which have
prevailed with the Judges from time to time in awarding or ·refusing
iiAcllAN SINGH v. PUNiAB (Bhagwati, J.) 355
to award death penalty and shown how some factors have ·weighed A
with one Judge, some with another, some with a .third and so on,
resulting in chaotic arbitrariness fa the imposition of death penalty.
I can do no better than quote his own words in Rajendra Prasad's
case (supra) :
•
B
"Law must be honest to itself. Is it not true that some
judges count the number of fatal wounds; some the nature
y of the weapon used, others count the corpses or the degree
of horror and yet others look into the age or sex of the
offendar and even the lapse of time between the trial Court's
award of death sentence and the final disposal of the c
appeal? With some judges, motives,_ provocations,
primary or constructive guilt, mental disturbance and old
feuds, the savagery of the murderous moment .or the plan
' \
which has preceded the killing; the social milieu, the subli-
mated class complex and other odd factors enter the sen-
D
. tencing calculas. Stranger st'ill, a good sentence of death
by the.trial Court is sometimes upset by the Supreme Court
because of Jaw's delays. Courts have been directed execu-
tion of murderers who are ment~ cases, who do not fall
within the McNaghten rules, because of the insane fury
of the slaughter. A big .margin of subjectivism, a prefe-
. rence for old English precedents, theories of modem peno- E
logy, behavioral emphasis or social antecedents, judicial.
hubris or human rights perspectives, criminological literacy
or fanatical reverence for outworn social philosophers
hurried in the debris of time except as part of history-this
plurality of forces plays a part in swinging the pendulum of
sentencing justice erratically." · F

'
This passage from the judgment 'of .the learned Judge exposes, in
language remarkable for its succinctness as well as eloquence, the
vagarious nature of the imposition of death penalty and 'highlights
a few of the causes responsible for its erratic operation. . I find G
myself totally in agreement with these observations of the learned
Judge.

But when it was contended that septencing discretion is inhe- H
rent in our legal' system, and, in fact, it is desirable, because no two
cases or criminals are identical and if no discretion is left to the
356 SUPkllMB COIJllT llBi>Oats (1983) 1 s.c.a.

A court and sentencing is to be done according, to a rigid pre· determi-
ned formula leaving no room for judicial discretion, the sentencing
process w</uld cease to be judicial and would de-generate into a bed
of procrustean cruelty. The argument was that having regard to
the nature of the sentencing process, it is impossible to lay down any
standards or guidelines which will provide for the endless and often
8 unforeseeable variations in fact situations and sentencing discretion
has necessarily to be left to the court and the vesting of such
discretion in the court, even if no' standards or guidelines are
provided by the legislature for structuring or challenging such dis-
cretion, cannot be regarded as arbitrary or unreasonable. This
argument, plausible though it may seem, is in my opinion not well
Cl foupded and must be rejected. It is true that criminal cases do not
fall into set. behaviouristic patterns and it is almost impossible to
· find two cases which are exactly identical. There are, as. pointed
out by Sarkaria, J. in the majority judgment, "countless permuta-
tions and combinations which are bei'ond the anticipatory capacity
of the human calc.ulus". Each case presents its own distinctive
D - features, its peculiar combinations. of events and its unique configu-
ration of facts. That is why, in the interest of individualised ..
justice, it is .necessary to vest sentencing discretion in the c0urt so
that appropriate sentence may be imposed by the court fo the exer-
cise of its judicial discretion, having regard t~ the' peculiar facts and
cirsumstances of a given case, or . else the sentencing process would
E' cease to be just and rational and justice would be sacrificed ,at the
altar of blind uniformity. But at the same time, the sentencing dis-
cretion conferred upon the court cannot be altogether uncontrolled
or unfettered. The strategem which is therefore followed by tho
legislatures while creating and defining offences is to prescribe the
maximum punishment and in some cases, ev~n the minimum and
Ii' leave it to the discretion of the court .to decide upon the actual term
of imprisonment. This cannot he regarded as arbitrary or un- , \
reasonable since the discretion that. is left to )he court is to choose
an appropriate term of punishment between the limits laid down
by the legislature, having regard to the distinctive features and the
peculiar facts and circumstances of the case. The conferment of
G such sentencing discretion is plainly and indubitably essential for
rendering individualised justice. But where the discretion granted
to the court is to choose between life and death without any
standards or guidelines provided by the legislature, the death penalty
does become arbitrary and unreasonable. The death penalty is
H
- .BACHAN SINGH' v. P!JNJAB (Bhagwati, J.)

qualitatively different from a sentence of imprisonment. Whether A
a sentence of imprisonment is for two years or five' years or for life,
it is qualitatively th~ same; ·namely, a sentence of imprisonment, but
the death penalty is totally different. It is irreversible; it is beyond
recall or -reparation; it extinguishes life. It is the ch~ice between
life and death which the court is required to make and this is .
B
left to its sole discretion unaided and unguided by any legislative
yardstick to determine the · choice. The only yardstick which
may be saicj to have been provided by ' the legislature is that life _
sentence shall be the rule and it is. only in exceptional cases for
special reasons that death penalty may .be awarded. but it is
nowhere indicated by legislature as to what should he regarded· as .
'special reasons' justifying imposition of death penalty. The
c.
~- . awesome and fearful discretion' whetper to kill a man. or to let him
1. live is .vested in the court and the court is called upon to exercise
this discretion·guided only by its own perception of what m~y be
regarded as 'special reasons' without any light shed by the legisla-
ture .. .Jt is difficult to appreciate .how ·a law which confers such un- D
guided discre'tion ou the court without any standards or guidelines
. o.n ~o vital an issue as the choice between life and death can be
regarded as constitutionally ·valid. If I may quote the words of
Harlan, J. :

"Our scheme of ordered liberty is based, like the E
common law, on enlightened and uniformly applied legal
principles, not on ad hoc notions of what is right-or wrong
-in a particular case." '

' There must. be standards or pri!)ciples to guide 'the.court in making F
th'e choice between life and death and it cannot be left to the court
to decide upon the choice on an ad hoc notion of what it conceives
' to be. ·special -reasons' in a particular case. That is exactly what we
mean when we say tha.t tile· .government should be of laws and not
of men and it makes no difference' in the 'application of this princi- G
ple, whether 'men' belong to the administration or to the judiciary.
It is a basic .requirement of the equality clause contained. in Article
14 that the exercise of discr.etion must always be guided by standards
or norms so that it does not degenerate into arbitrariness and
operate unequally oil persons similarly situate. Where unguided
and unfettered discretion is conferred on any authority: whether it H
be the ;xecutive or the judiciary, i& can be exercised arbitrarily or
·..
358 SUPREME COURT REPORTS . [1983] I s.c:R.

A capriciously by such authority, because there would be no standards
or p~inciples provided by the legislature with reference to which.the

. .
exercise of the discretion can be tested. Every form· of arbitrariness,
whether it be executive waywardness or judicial adhocism is ana-
tbema in our consiitutional scheme. There can be no equal protec-
tion withoutequal principles in exercise of discretion. Therefore
B the equality clause of the Constitution obligate that whenever death
sentence is imposed, it must be a principled sentence, a sentence
· based. on some standard or principle and not arbitrary or indignant
capital punishment. It has been said that 'a Judge un\ethered by a
text is a dangerous instrument, and I may well· add that Judge
power, uncanalised by clear principles, may be equally dangerous
c when the consequence of the exerci~e of discretion may result in the
hanging of a.human being. It is obvious that if judicial discretion
is not guided by any standard or norms, it would degenerate into
judicial caprice, which, as is evident from the foregoing discussion,
has in fact happened and in such a situation, unregulated and un-
principled sentencing discretion in a highly sensitive area involving a
D
question of life and death would clearly be arbitrary and hence vio-
' lative of the equal proiection. clause contained in Article 14. It
I would also militate against Article 21 as interpreted in Maneka
G~ndhi' s case (supra) because no procedure for depriving a person
of his life calj be regarded as rea11onable, fair and just; if it vests
1
\ uncontrolled and unregulated discretion in the court whether to
award death sentence or to inflict only the punishment of life im-
prisonment. ·The need for well recognised principles to govern the
'deadly' discretion is so interlaced with fair procedure that unregu-
lated power not structured or guided by any standards or principles

.·~
wo.Uld fall foul of Article 21. -. · ·
F
The respondents however contendent thai' the absence of any
standards cir guidelines in the legislation did not affect the constitu-
tional validity of the death penalty, since the l sentencing discretion
being vested in the court, standards or principles for
regulating the exercise of such discretion could always be
G evolved by the court and the court could by a judicial fiat
lay down standards or norms which would guide the Judge in exer-
cising his discretion to award the death penalty. Now it is true that
there are cases where the court lays down principles and standards
for guidance in the exercise of the discretion conferred upon it by
H a statute, but that is <,lone by th; court oply . in those cases when;
.BACHAN SINGH_ v. PUNJAB (Bhagwati, J.) , . 359

{he principles or standards are gatherable from the provisions of the A
statute. Where a statute confers discretion upon a court: the
,. statute may lay down the broad ~tandards or principles which should
guide the court in the exercise of such discretion or such standards
or prinCiples may be discovered from ihe object and purpose of the
statute, its underlying policy and the scheme of its provisions and
B
some times, even from the surrounding .circumstances. When ihe
court lays down.standards or principles which should guide it in the
exercise of its discretion, the court does not evolve any new
-, standards or principles of its own but merely discovers them from
the statute. The standards or principles laid down by the court in .
such a case are not standard~ or principles created or evolved by
~the court but they are standards or principles enunciated by the
c
I legislature in the statute and· are merely discovered by the court as
a matter of statutory interpretation. It is not legitimate for the
. court to create or evolve any standards or_ principles which are not
\- found. in the statute; because enunciation of s_uch standards or
principles is a legisiative function which ·belongs to· the legisiative D
and not to the judicial department., Moreover, it is difficult to see
~ how any standards or principles which would adequately guide the
exercise of discretion in the matter of imposition of death penalty
can be evolved by the 'court. Sarkaria, J. himself has lamented the
' impossibility of formulating standards or guidelines in this highly
~
.sensitive area and pointed out in the majority
.
judgment : ' E

" .. there is little agreement among penologists and
jurists as to what information about the crime and criminal
is relevant and what is not relevant for fixing the dose
' .
of punishment for a person. convicted of a particular
'offence. According to Cessare Beccaria, who is supposed
to be the intellectual progenitor of today's fixed sen-
. tencing movement, 'crime are only to be measured by the
injury done to society.' But the 20th Century sociologists
do not wholly agree with this view. Ii;i the opinion of Von
Hirsch, the "seriousness of a crime depends both on the
G
harm done (or risked) by the act and d~gree of actor',s
culpability." But how is the degree of that culpability
to be measured. Can any' thermometer be devised to
. measure its degree ? ·' .
H
This passag~ from the majority judgment provides a· most
complete and conclusive answer to the contention of the respon-
360 ' SUPREME COURT REPORTS - · (1983_) I s.c.R,
\.

:A. dents that the couit may evolve iis own standards or principles for
guiding the exercise of its discretion. · This is not a function which
can he satisfactorily and adequately performed by the . court more
particularly when the judicial perception of what.may be regarded as
proper and relevant standards' or guidelines is bound to vary from:
· judge having regards to his attitude and approach, his predilections
:u -
and prejudices and his scale of values and social philosophy;
, , ' '

. · I ~m fortified in this .view . by 'the ci~cision of the Supreme
Court· of· the United States in Furman v. ·Georgia. (supra). The·
,• ~
. quesdon which was brought before . the court for .consideration in
C ; that case was whether the imposition and execution of death penalty
constituted "cruel anci unusual punishment" within the meaning of
. - . '
the Eighth Amendment as applied to· the States by the . Fourteenth.
a
The court,' by majority of five against four, held that the death
penalty as then administered in. the United States was. unconsti-. -
· tutional, because it was being used in an ·arbitrary manner and such
D ~rbitrariness. in capital punhhment was a violation ·of the Eighth ..•
. Amendment prohibition against "cruel and unusual punishment"
which-was made applicable to the States·by the Fourteenth Ami;;nd-
ment. Brennan J. and Marshall, J. took the view that. the· death
.· p:nalty was per se unconstitutional as violative of the prohibition of
the Eighth Amendment. Brennan, J. held that·the death pena)ty ·
E · · constituted cruel and unusual punishment as it did not comport with
· human dignity and it was a denial of· human dignity 'for a. State
... ' 8rbitrarily tO subject a person _to an uD.usually _severe punishment
/
which society indicated that it· did not regard as acceptable' and
which could not be 'shown to serve any penal purpose more effecti-
vely than a sign.ificantly less drastic punishment;., Marshall, J. stated
F· that the death penalty violated the Eighth Amendment because it·
was an excessive and unne~essary pun'ishment and . also because it
was morally unacceptable to ihe people .of the·. United States. The
other. three learned Judges namely, Douglas, J. Stewart, J. and
White,.J. did not subscribe to the-View that the death pen~lty was
c· per .. unconstitutional in al!' circumstances but rested their judgment
· on'tbe limited 'ground that the death· penalty as applied in the
United States was 'unconstitutional. · Douglas, J. argued. that .. "we
deal with a system of law and of justice that leaves to the uncon-
trolled discretion of judges 'or juries. the determination whether
/
H defendants committing these crime; sho~ld die or be imprisoned.
Under these laws no standards govern· the selection of the ·penalty.
f.eople live or, die dependent on the whi~ of one man or of twelve."
I

llACHAN Si.NOH •. PUNJAB (ilhagwati, J.) 361
A
..- Stewart, J. also voiced his concern about the unguided' and un-
regulated di;cretion in.the sentencing process and observed :", .. the
Eighth and Fourteenth Amendments cannot t~erate th'e infliction
of a sentence of death.under legal systems thjlt permit this unique
penalty to be so wantonly and so freakishly imposed/' The
remaining four Judges, namely, Burger, C.J. Blackmun, J. Powell, J. ' 8
and Rehnquist, J. took the opposite view and upheld the constitu·
I
ti on al validity of the death penalty in its entirety. · It will thus be
'r seen that the view taken by the majority decision in 'this case was
that a law which gives uncontrolled and unguided discretion to the
Judge (or t)le jury) 1 to choose arbitrarily b'tween death sentence
and life imprisonment for a capital offence violates the· Eighth c
Amendment which inhibits cruel and unusual punishment. Now
Sarkaria, J. speaking on behalf o( the majority, bas brushed aside
~ this decision as inapplicable in 1India on the ground that we "do not
have in our Constitution any provision like the Eighth Amendment
nor are we 11t liberty ,to apply the test of reasonableness with the
freedom with which the Judges of the Supreme Court of America D
are accustomed to,,apply the 'due process' clause." I am unable to
agree•with this reasoning put forward in the.. majority judgment.
I have already pointed out that though there js no explicit provision
in our Constitution prohibiting cruel and unusual punishment, this
). Court has in Francis Mullin's case (supra) ,held that immunity against
or
iorture cruel and unusual punishment or treatment is implicit'
.E
in Article 21 and therefore, it any"punishment is cruel and unnsual,
it would be violative of basic human dignity which is guaranteed
· · under Article 21. Moreover, in Maneka Gandhi's case (supra) this
court has by a.process of judicial interpretat.io.n brought in the pro-
cedural du.e process clause of the .American Constitution by reading
F
in Article 21 the requirement that the procedure by which a person
may be deprived of his life or personal Ii b,erty must be reasonable, · '
'fair and just. Douglas, J. bas also pointed out , in Furman' s case
(supra) that "there is increasing recognition. of the. fact that the
basic theme of equal protection is implicit in 'cruel . and .
upusual' punish~ent. A penalty ...... should be considered 'unusu· G
ally' imposed, if it is. administered arbitrarily or discriminato-
rily" and thus brought in / the eq11al protection clause for invali-
;.. daring the death' penalty. It is also significant to note that_ despite
the absence of provisions like the American Due Process Clause and
the Eighth Amendment, this Court speaking through Desai, J. ~aid in H
I •

• I
362 ' SUPREME COURT llllPORTS ( t 1983) I s.c.R:
A Sunil JJatra v. Delhi Administration.(') ·

"Treatment of a human being which offends human
dignity, imposes avoidable tort11re and reduces the man
to the ,level of a beast would certainly• be arbitrary and
can he questioned under Article 14....... "
B
Krishna Iyer, J. was more emphatic and he observed in the same
case.
. ..,.
"True, our Constitution hai; no 'due process' clause or
/ the VIII Amendment; ·hut, in this branch of law, after
c Cooper ..... and -Maneka Gandhi... the consequence is
the same. For what is punitively outrageous, scandalizing
unusual or cruel or rehahilitatively counter-productive is
unarguably unreasonable and arbitrary and is shot down
by Article 1.4 and 19 "

D It should be clear from these observations in Suni/ Batra's case to
which Chandrachud, C.J. was also a party, that Sarkaria, J. speaking
on behalf of the majority Judges, was in error in relying on the
absence of the American dµe process clause and the Eighth Amend-·
men! for distinguishing the '>decision in Furman's cqse (supra) and •
upholding death penalty. The decision in Furman's' case cannot,
E therefor~. he rejected a• inappiicahle in India. This decision clearly -''
supports the view that where uncontrolled and unregulated discre-
tion is conferred on the court without any standards oi: guidelines
provided by the legislature, so as to permit ar)Jitrary and uneven
imposition of death penalty, it would he viola~ive of- both Artie.le~
F 14 and 21. ·

, It may he pointed out that subsequent tp the decision in
Furman' s case (supra) and as a reaction to it the legislatures of · '
several States in the United States passed statutes limiting or pon-
trolling the exercise of discretion by mean_s of explicit standards to
G he followed in the sentencing process. These 'guided discretion'
statutes provided standards typically in the form of specific aggra-,
vating and mitigating circumstances that must be taken into account
before death sentence can be handed down. They also provided
for separate phases of the trial to determine guilt and punishment ~
ff
(I) A.LR. 1978 sc'1675.
llACHAN SINGH .. PUNJAB (Bhagwati, J~_,1 363

A
and for automatic appellate revie'* of death sentences. The consti·
tutional validity of some of these 'guided discretion' statutes
was challenged in Gregg v. · Georgia (supra) and compani'on
cases and the Supreme Court of the United States upheld
these statutes on · the ground that providing specific sen·
tencing guidelines to be followed in a separate post conviction B
phase of the trial would free the sentencing decision of arbitrariness
and discrimination. There is considerable doubt expressed by lead·
ing jurists in the United States' in regard to correctness of this deci·
sion, because in their view the guide lines provided by these statutes
in the form of specific aggravatiog an_d/or mitigating circumstances
are too broad and too vague to serve as an effective guide to discre- c
tion. In fact, while dealing with the challenge to the constitutional
validity of a 'guided discretion' statute enacted by the Legislature of
Massachusettes, the Supreme Court of Massachusettes by a majority
held in _District Attorney for the Suffolk District v. Watson(') that
the statute providing for imposition of death penalty was unconsti·
tutional on the ·groupd that it wa~ violative of, Article 26 of the D
•· Declaration of Rights of the Massachusettes Constitution v.:hich
. prohibits i~tliction of cruel or ·unsuual punishment. Henneseey, C.J, ,
pointed out· that in enacting t~e impugned statute the Legislature of
Massachusettes had clearly attempted to follow the mandate of the·
Furman opinion and its progeny by promulgating a law of guided
and channelled jury" discretion, but even so it transgressed the pro- E
I hibition of Article 26 of the Declaration of Rights of the State
Constitution. The learned Chief Justice observed : " ... it follows
that we accept the wisdom of Furman that arbitrary and capricious
· infliction <?f death penalty is unconstitutional. However, we add
that such arbitrariness and discrimination, -which inevitably persists F
even under _a statute which meet's the demands of Furman, offends
Article 26 of the Massachusettes Declaration of Rights.'' But we
are not concerned here with the question as to whether the decision in
Gregg's case represents the correc.t law or the decision of the
.( Massachusettes Supreme Court in Watson's case . . That controversy
does not arise here because admittedly nei,ther the Indian Penal. G
Code nor a_ny other provision of law sets out any aggravating or
mitigating circumstance or any. other considerations which must be
I taken into account in, determining whether death sentence should be ·

(I) Mass. Sh. [1980] D
364 SUPREME. COURT REPORTS
' • [1983} 1 s.c.R ..

A awarded or not. Here the sentencing dispretion conferred upon the
cqurt is totally uncontrolled and unregulated or if I may borrow
an· expression frof!I Furman's decision, it is 'sta.ndardless'. and
'unprincipled'.

It is true that there are certain safeguards provided in the
B Code of Criminal Ptocedure, 1973 which are designed to obviate
errors in the exercise of judicial discretion in the matter of imposi-
tion of death penalty. Section 235 sub-section (2) bifurcates the
trial by providing two pearings one at the pre-conviction stage and
. ' .
another at the pre-sentence stage so that at the second stage follow-
' ing upon conviction, the·court can gather relevant information bear-
ing on the question of punishment and decide, on the basis of such
infor~ation, what would be the appropriate punishment to be
· imposed on the offender. Section 366 sub-section (1) requires the
court passing a sent~nce of death to submit the proceedings to the
High Court and when such reference is made to the High Court for
confirmation of the death sentence, the High Court may under' sec-.
D .
· tion 367 direct further inq.uiry to be made or additional eviden,ce to
be taken and under section 368, confirm the sentence of. death or '
pass any other sentence warranted by law or annual or alter the
conviction or order a new trial or acquit the accused. Section 369
enjoins that in every reference so made, the confirmation of the
L I ' -•
I
.sentence or any new sentence or .order passed bX the· High Court, .J,
E
shall, when such court consists of two or more judges, b!' made,·
passed and signed by at least two of them. Then there is also a
prov.iso in section 379 which· says that when the High Court on
• appeal reverses an ordrr.of acquittal and convicts the aq:used and
sentences him to death, the accused shall have a right to appeal to
the Supreme Court. Lastly there is an over-riding power conferred
on the Supreme Court under Article .136 (o grant, in its discretion,
special leave to appeal to an accused who has l!een sentenced to
, death. These are undoubtedly some safeguards provided by the
iegislature, but in. the absence of any standards or principles provid-
ed by the legislature to guide ihe exercise-of the sentencing discre-
G tion and in view of the fragmented bench structure of the High
\ Courts and the Supreme Court, these safeguards cannot be of any
help in eliminating arbitiariness and freakishness in imposition of
death penalty. Judicial ad hocism or waywardliness would continue
to characterise the exercise of sentencing discretion whether the'
H Bench be of two judges of the High Court or of two or three judges
of the Supreme Court and arbitrary and uneven incidence of death
BACHAN SINGH v. PUNJAB (Bhagwati, J.). 36S

penalty would continue to affiict the sentencing process despite t~ese
A
procedural ·safeguards. "Tl\e reason is that these safeguards are
merely peripheral and do not attack the main probie'm which stems
from lack of standards or principles to guide the . exercise of the
sentencing discretion. Stewart, J. pointed out in Gregg's i:ase
(supra), ".~.the concerns expressed' in Furman that the penalty of 8
· deaih not be imposed in an· arbitrary or capricious manner can be
m_!Ot by a carefully drafted statute that ensures that. the sentencing
authority is given adequate information and guid;mce. As a general
· proposition these concerns are best met by a system that ' provides .
for a bifurcated proceeding at . which the sentencing authority is
apprised. 0f the information relevant .to the imposition of sentence c
and provided with standards to guide·its use of the information."
The first require'ment that there · should be a bifurcated proceeding
at which the sentencing authprity is apptised of the information
, relevant to the imposition of sentence is met by th.e enactment of
section 235 sub·sectio11 (2), but the second requirement that the
sentencing authority should be provided with standards to guide its D
use of the information is. not satisfied and the imposition of death .
• penalty under ,section . 302 of the Indian Penal Code re(ld with sec-
tion 354 sub-section (3) of the Code of Criminal._.Procedure, 1973
,· must therefore. be held to be. arbitrary and capricfous and , hence
violative of Articles 14 and 21. ·
). " E
\.There is also one other characteristic of death penalty ihat is
revealed by a study of the decided cases and it is that death sentence
has a certain class complexion. or class bias in as much as it is largely .
the poor and the down-trodden who are the victims of this extreme ·
penalty. We \Vould hardly find a rich or affiuent person going to F
the gallows. ' Capital punishment, as pointed out by Warden Duffy
is "a privilege of the poor."• Justice Douglas also observed in a
famous death penalty case "Former Attorney Pamsey Clark has
said : 'it, is the poor; the sick, ·the ignorant, the po werless and the
1
I. hated who are executed'. · "So also. Governor Disalle of Ollfo State
speaking from his personal experience with the death penalty G
said :
. ~ lJ
'· I.
"During my'experience as Governor of Ohio, I found
the men in death row had one thing in common; they were H
penniless. There were other common denominators,: low
.. mental c_apacity, little.or no education, few friends, broken
366 SUPIU!MB COURt 1Ul1'01!.ts (1983 J I s.c.a.
.A homes-but the fact that they had no money was a principal
factor in their being condemned to death ... "

The same point was stressed by Krishna Iyer, J. in Rajendra Prasad's
case (supra) with his usual puncli and vigour and in hard hitting
language distinctive of his inimitable style : ·
B
"Who, by and large, are the men whom the gallows
swallow. The white-collar criminals and the corporate
criminals whose wilful economic and environmental crimes
inflict mass deaths· or who hire assassins and murder by
c remote control? Rarely. With a few exceptions, they
hardly fear the halter. The fending villager, heady with
country liqnor, the striking workers desperate with defeai,
the political dissenter and sacrificing liberator intent on
changing the social order from satanic misrule, the waifs
'alJd strays whom society has hardened by neglect into
D street toughs, or the poor householder-husband or wife-
drivee by dire necessity or burst of tantrums-it is this 1
person who is the morning meal of the macabre executio-
ner."

"Historically speaking, capital sentence perhaps has a
E c)ass bias and colour bar, even as criminal law barks at
both but bites. the proletariat to defend the proprietariat a
reason which, incidentally, explains why corporate criminals
including top executives whom by subtle processes. account
for slow or sudden killing of large members by ~dultera
tion, smuggling, cornering, pollution and other invisible.
F operations, areJ)ot on the wanted list and their offending
operations which directly derive profit from mafia alid
white-collar crimes are not visited with death penalty,
while relatively lesser delinquencies have, in statutory and
forensic rhetoric, deserved the extreme penalty."
G
There can be no doubt that death penalty in its actual operation is
discriminatory, for it strikes mostly against the poor and deprived
sections of the community and the rich arld the aflluent usually escape
from its clutches. This circumstance also adds to the arbitrary and
H capricious nature of the death penalty and renders it unconstitu-
tional as being violative of Articles 14 and .21.
.
I
llACllAN INGH v.UNJA (Blzagwati. J)

Before I part with this topic I may . point out that only way A
in which the vice of arbitrariness in the imposition of death
· penalty can be removed is by the law providing that in· every case
where the death 'sentence is ·confirmed by the High Court there
shall be an. automatic review of the death sentence by the Supreme
. Court sitting as a whole and the'death sentence. shall not be affirmed
or imposed by the Supreme Court unless it is approved, unanimously
by the entir~ court sitting enbanc· and the o'nly exceptional cases in
which death sentence may be affirmed or imposed should be. legisla-
, lively limited to those where the offender is fottnd to be so depraved
· .that it is not possible to reform him by any. curative or rehabilita-
tive therapy, and even after his, release he would be a serious c
menace to the society and therefore in the interest of ihe society
. he is required to be eliminated. Of course, for reasons I have
already discussed such .·exceptional cases ··would be ·practically

-·• nil because · it . is almost impossible to predicate of · any
person that he · is· beyond .·reformation or redemption ·and
therefore, from a practical point of · view death ; penalty would be· D
almost non-existent. . But theoretically it may be possible to say
•t
"
..!t that if the State is in a position to establish positively that the offen-
- der is such a social mof!.ster that even afte~ suffering life imprison:-
ment and undergoing reformative and rehabilitative therapy, he can
• never be reclaimed for the- soclety, then he may be awarded death .
penalty. If this test is legislatively adopted and applied by follow- E
...,,, . ing the procedure mentioned· above, the imposition of death penalty
•may 'be rescued from the vice. of arbitrariness and caprice. But
that' is not so under the law as it stands to-day: ·
'
· . This view taken by me in regard to the constitutional validity
of the death penalty under Articles 14 and 21 renders it un~ecessary· .P
for me to consider the challenge under ·Article 19 and I do not
therefore propose to express any opinion 1 on that question. But
' .. sincecertain observations have been made in the majority judgment
of Sarkaria, J. which seem to run counter to the decisions of this
Court in 'R.C. Cooper v.. Union of. India(') and Maneka Gandhi's ·
case. (supra). I am constrained to add . a few words voicing my GI
. respectful dissent' from those observations .. Sarkaria, J. speaking on .
• behalf of the majority judges ·has observed in the present case that
the 'form and object test'. or· 'pitli and substance rule' adopted by
H
(I) [1970] 3 SCR 530.

/
SUPREME COURT REl>oRTS [1983 J I s.c.R.
A I
Kaµia, C.J. and Fazal Ali, J.. in A.K. Gopalan v. State of Madras
(supra) is the same as the 'test of direct and inevitable effect' enun-
ciated in R.C. Cooper's ·case and Maneka Gandhi's case and it has
not been discarded or jettisoned by these two decisions. · I cannot
iook with eqilimanity on this atlempt to resucitaie the obsolute
B 'form and object test' or.'pith'and substance rule' which was evolved
in A.'K Gopalan's case and which for a considerable number of years
dwarfed the growth and development of fundamental rights and cut
down their operational amplitude. This view proceeded on the
assumption that certain articles in the Constitution ,exclusively deal
with'specific matters and where 'the· requirement of an Article deal-
c ing with a particular matter in question is satisfied and there is no
infringement of the fundamental right guaranteed by that Article,
no recourse' can be .had to a fund11-mental right conferred by another
Article and furthermore,' in order to determine which is the funda-
I ,
mental right vi<;>lated, the court must cons\der the pith and subs-
tance of the legislation and ask the 'question: what is the object of
D , the legislature in enacting t~e legislation ; what is the .subject matter
of the legislation and to which fundamental right does it relate. But
this doctrine of exclusivity of fundamental rights was clearly and
unequivocally ov~r-ruled in R. C., Cooper's case by a majority of the
Full'Court, Ray, J. alon~ dissentin.g and so was the 'object and
for.m test' or 'pith and substance rule' laid down in A.K. Gopalan's
E case. Shali, J. speaking on· behalf of the majority Judges said in ,-
R.C. Cooper's case (supra)

" ... it is not'the object of the· authority making the law
impairing the right of a citizen, rlor the form of action
I' that determines the protection he can claim;, it is the effect
of the.law and of the action upon the right which attract
the jurisdiction 'of the Court to grant relief. If. this be the
true view, and we think it is, in determining the impact of
State action upon constitutional guarantees Which are
fundamental, it follows that the exteni of protection against
G impairment of a fundamental right is detefmined not by
the object of the Legislature nor by th~ form of the action,
but by its direct operation upon the individual's rights."

,n "We are of the view that the theory that the object.
. and form of the .State action determine the extent of pro-
, BACHAN SINGH v. PUNJAB (Bhagwati, i.) 369'
'
·tection which the aggrieved party may claim is not consis-
A
tent with the constitutional scheme .......... '' '

"In our judgment, the assumption in A.K. Gopalan's
case that certain articles in the · Constftution exclusively
deal with specific matters and in deiermining whether there B
.. is infringment of the individual's guaranteed rights,· the
object and the form of the .state action alone n~ed be ,
considered and effect of the laws on fundamental rights
of the individuals ·in ge\}eral will be ignored cannot be
accepted as correct."
c
This view taken in R. 9. Coop er' s case · bas since then bee.Ii consis-
tently followed. in seve~·a1 decisions of which I may mention only a.
few, namely, Shambhu Nath ·Sarkar v. State of West Bengal(');
Haradhun Saha v. State of West Benga(;(2 ) Khudiram Das v. State.
of West· Bengal(') a~d Maneka Gandhi's case (supra). I cannot· [) •..
therefore assent to the proposition in the majority judgment that
R.C. Cooper's ·case and Maneka. Gandhi's case have not given a
• complete go by to the test of direct and indirect effect, some times
described as 'form and object test' or 'pith and subsiance rule' evolv-
;
ed by Kania, C,J. and ,Fazal Ali, J. in A.K. Gopalan's .case and that
the 'pith and substance rule' still remains I\ valid rule for resolving E
i the question of the"Constitutionality of a law assailed on the ground
of its being violative of a fundamental right. Nor can I.agree with
the majority judgment when it says that it is Article 2 l which deals .
with the right to life and not Article 19 and section 302 of the Indian
Penal Code is therefore not required to be tested on the t011chstm~e
of any one or more of the clauses of Article 19. This approach of F
the majority judgment not only runs counter to the .decision in
· R.C. Cooper's case and other subsequent decisions of this Court
including Maneka Gandhi's case but is also fraught 'il'.ith grave danger
inasmuch as it seeks to .put the clock 'back and reverse the dir~ction
in which the law is moving towards realisation of the full potential
of fundamental rights as laid down _in R.C. Cooper's case and Ma~eka · G
Gandhi's case. It is significant to note that the docfrine of exclusi-

J (I) [1978] l S.C.R. 856
1 (2) [1975] 1 S.C.R. 778
H
(3) [1975] 2 s.c.R. 832
•

370 •
SUPREME COURT REPORTS [1983] I s.c.R.

- A vity enunciated in A.K. Gopafan's case Jed to the property rights
under Artiele 19(l)(f) and 31 being treated as distinct and different
rights traversing separate grounds, but this view was over turned in
Kochune' s case(') where · this Couri by a majority held that a law
seeki~g to deprive a person of his property under Articlil 31 must
be a valid law and it must therefore meet the challenge of other
B fundamental rights including Article l 9(l)(f). This Court over ruled
the proposition laid down in State of Bombay v. Bhanji Munji(2) thai
.Article 19(1)(f) read with clause (5) postulates the existence of
property which can be enjoyed and therefore if the owner is deprived
of his property by a valid Jaw under Article 31, there can be no
question of exercising any rights' under Article 19(1 )(f) in respect of
c such property. The court ruled that even in a law seeks
to deprive a person of his property under Article 31, it must
still, in order to be valid~ satisfy the requirement of Article 19 (I)
· (f) read with clause (5). If this be the true position in regard to the
inter:relation between Article 19 (I) (fl and Article 31, it is difficult
to see why a law authorising deprivation of the right to life under
D Article 21 should not have to meet the test ·of other fundamental
rights including those set out in the different clauses of Article J9.
But even if section 302 in so far ·as it provides for imposition of
death penalty as alternative punishment has to meet the, challenge
of Article 19, the question would still remain whether the 'direct and
.
I
inevitable consequence' of that prcwision is to affect any .of the fights
E guaranteed under the Article. That is a question on ~hich I do not )

wish to express any definite opinion. It is sufficient for me to state
1
ihat the 'object and form test' or the 'pith anfl substance rule' has
been completely discarded by the decision in R.C. Cooper's case and
Ma11eka Gandhi's case and it is now settled law that in order to
locate the fundamental right violated by a statute, the court must
F consider what is thedirect and inevitable consequence of the statute.
The impugned statute may in its direct and inevitable effect invade
more than one fundamental right and merely because it satisfies the
requirement of one fundamental right, it is not freed from the
obligation to meet the challenge of another applicable fundament~I
right.

These are the reasons for which I made my order dated May 9,
1980 declaring the death penalty provided under section 302 of t!w

(I) (1960]3 SCR 887,
12> [l955J l s.c.R. 111.

\
BACHAN SINGH v. PUNJAB (Bhagwati, J.) 371

Indian Penal Code read with section 354 sub-section (3) of the Code A
of Criminal Procedure, 1973 as unconstitutfonal and void as being
violative of Articles 14 and 21. I must express my profound 'regret
) at the long delay in delivering this judgment bui the reason is that
there"was a considerable mass ~f material which bad to be collected
from various sources and then examined and analysed and this took
a large amount of time. B

S.R. Appeal dismissed,

,_;"
"'

}
'

,,

·-

It l

•
J